From: trif@bike.rad.washington.edu (To Run In Fear)
Newsgroups: misc.legal
Subject: Re: Right To Not Support
Date: 18 Aug 92 06:29:38 GMT
Article-I.D.: bike.TRIF.92Aug17222938
	<BsL96r.4t6@news.cso.uiuc.edu>
	<TRIF.92Aug16061554@bike.rad.washington.edu>
	<Bt3p7r.I2L@news.cso.uiuc.edu>
	<TRIF.92Aug16205733@bike.rad.washington.edu>
	<Bt4stG.Az@news.cso.uiuc.ed
Organization: University of Washington, Seattle WA

In article <Bt4stG.Az@news.cso.uiuc.edu> slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer) writes:
   I write:
   >In article <Bt3p7r.I2L@news.cso.uiuc.edu> slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer) writes:
   >   I write:
   >   >Not that anybody cares at all, I'm sure, but I view the issues of abortion
   >   >and child support as completely separate issues.

   >   All that you say is true, the problem is that the mother's basis for 
   >   enjoining the man is that he somehow bears resoponsibility for the 
   >   existence of the child.  

   >No, the mother's (and the state's) basis is the legal right of a child to
   >support from both its parents.  If a vasectomy fails due to an incompetent
   >doctor performing the operation, then the doctor, not the man is responsible
   >for the pregnancy.  This does not change the child's rights at all.  Maybe
   >you don't agree with this.

   But the doctor cannot be enjoined for support.  What, precisely, does it mean
   to be a "parent"?  A parent MUST be, in some way, a cause or source of the
   child which is created.  However, the legal logic which permits abortion
   implicitly denies the man any recognition or role as a causative agent.
   Their is no substantive difference between man-as-supplier-of-raw-material
   and man-as-parent.  The doctor who mixes sperm and egg in a Petri dish 
   for in vitro fertilization (IVF) of artificial insemination by donor (AID)
   sperm is arguably as much a "father" as the husband of the woman to be 
   impregnated.  In fact, by the arguments that have been presented so far,
   he is more of a father, since he is the one who is responsible for conception.

Responsibility has never been the basis for deciding legally who the father
is.  It sounds like you are arguing on some sort of anti-abortion anti-
technology moral basis here.  This has no place in a debate about law.
It probably varies from state to state, but in my state, the father is 
1) the woman's legal husband unless 2) the woman states who she believes 
the father is unless 3) medical tests are performed to establish 
paternity/non-paternity.

   My point is that according to today's legal environment, the basis for the
   child's enjoinment of the man is much, much weaker than it has ever been,
   simply because the idea of what it means to be a father is being destroyed
   by reproductive technology and legal abortion.

Are we talking law here or are we talking anti-technology "destruction of
family values" hand-wringing here?

   >   The only one who is in any way responsible for the existence of a child
   >   in a state that permits legal abortion using the rationale current in the
   >   U.S is the mother.  

   >Leaving aside, of course, that abortion is not de facto available in a 
   >significant part of the country because of harrassment.

   That has nothing to do with the legal basis for enjoining child support.

Ah... now since the reality doesn't favor your position, you want to only
talk law.  I guess if abortion is legal in a state it doesn't matter if in
reality it is still inaccessible to women.  My father-in-law offered to
pay half the cost of a car for a wedding present, but right now, that present
is worthless because we don't have the money to pay for the other half.  So
even if under your scenario, men were required to put up half the cost of
the abortion, it might *still* be useless.

   >   The father is, de facto, only a supplier of raw 
   >   material.  If this were not true, the father could legally compel some 
   >   sort of recognition during pregnancy - if only a mandated formal voicing
   >   of approval or disapproval of the abortion/term-carrying.  No such route
   >   exists for the man.

   >This is because a man has absolutely no say in what a woman may do with her
   >body *and* because the fetus cannot live without its host.  If it were the
   >case that the fetus could live after being expelled from its host, I would
   >absolutely support notification of the father, who could then assume custody
   >of the fetus, enjoining the state to sue the mother for child support.  I
   >tend to have a *very* long view with respect to the law and technology, and
   >someday we will have fetal transplantation, and perhaps even in vitro 
   >gestation.  If you look at the short term reality of abortion meaning death
   >of the fetus, and choose to enact law based on the expectation that it will
   >always be so, nasty things develop when technology changes.

   When that happens, child support will definitely disappear.  When the man
   has control over an artificial womb, the law will be forced to decide that
   ANYONE who decides to carry to term, either by natural or artificial womb,
   made such a decision unilaterally, and must deal with the consequences alone.

Again, responsibility is not the issue.  It is the child's rights.  The law
does not view child support as punishment, but as something a child is 
entitled to.  Decisions and consequences have nothing to do with child 
support.

   Of course, by then someone may decide that no one has the right to force the
   woman to undergo an operation to remove the viable embryo.

Exactly.  No one may force a woman not to have an abortion, and no one may
force a woman to undergo one.

   Precisely BECAUSE a man has absolutely no say in what a woman may do with
   the embryo, he is not a father in any real sense.  He is no more a father
   than the OB/GYN is a father.  IN fact, he is less of one, simply because
   the doctor has a legal duty to provide advice on carrying to term, while
   the putative father is legally silenced.

No, a man has no say in what a woman may do with her body.  The father has
as much rights as the mother does regarding the fetus---but it dies right
now.  Consider a 3rd term abortion performed because the woman develops a
life-threatening condition.  If it can be reasonably done without risk to
the woman, the fetus can be taken out alive, and the father has just as much
legal right to custody over the fetus as the woman does.

   >   Yet the decision on whether or not that child DOES
   >   become a child is wholly out of his control and entirely in someone else's
   >   control.  He cannot cancel the work halfway through, nor can he refuse to
   >   pay for the results of the work.  Only the woman can cancel the work.
   >   This despite the fact that the man may not have knowingly commissioned the
   >   work.

   >Again, because of the current state of technology, this is true.  It has 
   >nothing to do with the law.  The law does not state that a woman has the
   >right to kill the fetus, just that she has the right to terminate the
   >pregnancy.

   Nonsense.  It has everything to do with the law.  WHo decided that this
   state of affairs obtained?  Your last sentence is a semantic word game.
   The only person fooled is you.

I don't know about your state, but up here the laws say nothing about 
killing fetuses, but rather "termination of pregnancy".

   >   Why does the man create an implied contract simply by having sex when the
   >   woman does not?  

   >The woman does.  She does not, however, contract her *body*.  The government
   >*cannot* force *anybody*, man or woman to be host to another organism, not
   >even another person.  The government cannot compel a father to donate bone
   >marrow, a kidney, whatever, even if the child would die without it.  This is
   >the legal principle operating in the right to have an abortion.  In this
   >respect, men have the same rights as women.  It is biology that creates the
   >inequity, not the law.

   Again, nonsense.  The law could easily decide that the state has enough 
   interest in saving life that such compulsion is possible.  It has done
   so in the case of blood transfusions for numerous reasons, and in the case
   of the draft.

Under civil law, the government's right to take ends at the skin.  Under
military law, things are different, but we are not talking about military
law here.  The government *cannot* compel you to give up an organ to save
someone else's life, not even that of your child.  Please give an example
of a law requiring, under civil law, that a person give blood.

   It ahs everything to do with the law.  Furthermore, if the
   father's duty to the child does not extend to tissue, why does it extend to
   bank account?  

I have this argument with a person I know everytime the child support thing
comes up.  The government can take *things* from you, including money.  If
it couldn't, the government could not enforce civil contracts, for instance.
But the government can't force you to go sell plasma to pay your taxes.

   The child is under no threat of death if the father chooses
   not to support.  The basis for enjoinment is causative action, but the only
   person who engages in causative action is the woman.

Causative action has no bearing.  The child's rights are the only issue.

   By definition, the
   man supplies only raw materials.  An automobile company cannot 
   *FORCE* me to buy a car they produce,  and Tennessee ruled that a man 
   cannot be *forced* to be a father if the embryo is not under the woman's
   control, so why can she *force* him to be a father when it *IS* under her
   control?

My understanding of this case is that the woman took the man's sperm
sample and had the eggs fertilized in the face of the man's express
objections, and subsequently the embryos were frozen.  I don't know if
this case has been appealed yet, and I certainly haven't seen the contract
that the man signed.  I certainly cannot go to the blood bank after having
donated and demand my blood back (they would probably throw it out if I
objected strenuously enough, but they aren't legally required to), since
it has become the blood bank's property.  Did the sperm sample remain his
property?  If they live in a community property state, half the sperm sample
would become hers if there was no other agreement.  If the woman was ruled
to have stolen the sperm, the embryos should become wards of the state.

   >   How does an anonymous sperm donor differ from any of the
   >   above?  What about a surrogate mother?  What about a surrogate mother who
   >   does not contribute any gametes, but merely serves as the person carrying
   >   to term?  Who can be enjoined for child support and why?

   >Again, the legal principle is that a child has the right to support from both
   >its parents, those being who the law regards as parents.  Who does the law
   >regard as the parents in the sperm donor situation?  I believe that currently
   >the mother is, but IMHO, the mother should *still* not be able to abrogate
   >the child's rights by signing her consent that the sperm donor not be liable
   >for support.  In a surrogate mother situation, the woman in the contracting
   >couple adopts the child.  Until she does so, the surrogate is a parent and
   >can be enjoined for support.

   The sperm donor is not liable for support.  As I understand it, he signs a
   document which shields him from child support enjoinment.  Explain that one
   oh mighty legal scholar.  How can the donor sign away the CHILD'S right?
   Obviously the law is confused.

Obviously.  If you had read what I wrote, you would have noted that I stated
that I did not believe that the sperm donor should be so shielded.  I am
unaware of any legal cases contesting such agreements, so it remains an
up-in-the-air matter.

   And in re the surrogate, you just stated 
   above that the woman has a right to bodily autonomy.  If the surrogate
   decides to abort, nobody can touch her, since the contract for child
   production has no legal validity in that case.

Right.

   And why can a surrogate
   mother who supplied *NO GAMETES* enjoinable for support?  Ah, the law is
   seriously confused here.  

Under most state law, the woman giving birth is defined to be the mother.
Outdated, certainly.  But this is how it is under the law currently.  Notice
that in my example above, genetics came in only at the 3rd test for paternity.

   You get my point.  The concept of "parent" is mutating.  The old definitions
   do not hold.  The old basis for child support does not hold.  
   Legal abortion and reproductive technology has changed all the rules.

   >   >Consider what would happen if parents were able to simply disavow their
   >   >obligation to the child.  The father exercises his "Right to Not Support",
   >   >and the mother exercises hers.  Now what?  Usually, this is called "giving
   >   >up the child for adoption".  But what happens if there are no people who
   >   >wish to adopt the child?  Does the child receive no support at all?

   >   The only person who clearly creates a child is the woman who carries to
   >   term.  She is the only one who can decide whether or not a child will
   >   come into legal existence.  Thus, Mr. Darcy et. al. do not think the woman
   >   can avoid child support.  They merely assert that the man must be able to,
   >   given the current legal logic.  They are correct, as near as I can tell.
   >   The courts are moving in this direction - slowly - but the logic of legal
   >   abortion necessitates precisely what Darcy and others advocate.

   >If technology changes, this will no longer be true.  You will have created
   >an entire body of unjust law based on a temporary situation.  Because the
   >right of bodily self-determination is entirely separate from a child's right
   >to support, what rights you give to the man you must also give to the woman,
   >else be a hypocrite.  I fully realize that abortion is often used to kill the
   >fetus to avoid becoming a parent, and this is an unfortunate consequence of
   >biology.  It will not always be so.

   Well, that remains to be seen.  As I've pointed out above, though, it is
   not at all unlikely that it will always be so.  And it will be damnably 
   difficult to maintain child support laws when either side can decide to
   commission a child (via artificial wombs).  

   The question is made clear by that last, as yet unattained, technology.
   If child support is obviously absurd when either side can decide to carry
   to term, why isn't it also absurd to require it from the side which 
   currently *CANNOT* carry to term?  Penalty upon penalty is the current
   situation.

   Steve Kellmeyer

Of course, you realize that if we adopt your scenario (man can opt out of
child support merely by putting up half the cost of an abortion), the
inequity swings the other way.  If the woman doesn't have the other half
of the cost, she has no way of exercising her so-called option.  Or if
she has her half, and the man opts for support, and she doesn't have the
other half, well she's pretty well screwed.  For a poor woman to opt out,
both pieces have to be in place.  For a man, he only needs to worry about
his half.  There is also the inequity that a man can opt out just by signing 
a piece of paper.  The woman has to undergo a medical procedure as well.  
This maywell be unenforceable law, because in order for her to have the same 
rights as a man under the law, the government requires her to undergo a 
medical procedure.