From: slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer)
Newsgroups: misc.legal
Subject: Re: Right To Not Support
Date: 17 Aug 92 14:12:48 GMT
Organization: University of Illinois at Urbana

trif@bike.rad.washington.edu (To Run In Fear) writes:

>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.

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.

>   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.

>   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.
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.

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.

>   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.

>   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.  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?  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.  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?

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

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
Newsgroups: misc.legal,alt.society.civil-liberty