From: slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer)
Subject: Re: Right To Not Support
Organization: University of Illinois at Urbana
Date: Tue, 18 Aug 1992 17:39:19 GMT

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

>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:


>   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.

You are incorrect.  Responsibility MUST be the basis for enjoining child
support, or adopted children could never obtain support from parents who
divorce.  Responsibility has hitherto been based on biological causation,
at a time when it was believed that the act of conception caused a life.
Now the legal scholars contend that only birth, or the mother's willingness
to carry to term, "causes" a life.  Failing biological causation (e.g.
in cases where adoption has occurred) the adult who made formal acceptance 
of legal responsibility was enjoinable for support.

If "[r]esponsibility has never been the basis for deciding legally who the
father is", then biological testing would be pointless, since the 
biologically responsible individual is not "the basis for deciding legally
who the father is".  Indeed, the very fact that you made such a ludicrous
assertion merely proves that the concept of what constitutes fatherhood
has been terribly eroded.

>   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?

We're talking fact here.

[deletions of material whose point I couldn't see]

>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.

Again, if it does not, why is biological testing done?  Why isn't the woman 
simply permitted to choose a man at random from the population and hit him
up for child support?  The child only has the right to enjoin the person(s)
responsible for the child's existence/livelihood.  Given the logic of legal
abortion, that boils down to just one person - the individual who creates
the child.  Only the woman who manufactures the child, i.e. carries the 
fertilized egg and adds value through biological manufacturing, is responsible
for the child's existence, since only she can decide whether or not such
manufacturing takes place.  The genetic consituents, i.e. the raw material,
can be destroyed by the woman at any time without compensation or consultation
with the supplier(s).  The suppliers can, therefore, hardly be said to be
responsible for the child's existence, and are therefore not enjoinable.

>   >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".

Of course.  You can't kill something that, by legal definition, is not alive.
Word games are interesting, but not relevant.  


>   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.

You are wrong.  The state can REQUIRE a person to accept a tissue.
Blood transfusions can be compelled.  The government has the right to
forbid you from using drugs, and can prosecute you for doing so, even though
that drug use definitely takes place "under the skin".  They don't just
nail you for possessing, but for injecting/inhaling/etc.  Prostitution 
can be forbidden.  The government can deny the right to abortion in the 
third trimester.  Your statement is incorrect.


>   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.

The child's rights only extend to the person(s) who are responsible for the
child's existence.  They extend no farther.  Given current law, it is 
obvious that the man is not one of those persons.

>   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.

As I understood it, the man and the woman had agreed to create the embryos,
but a divorce ensued before they got implanted.  I'd appreciate input from
anyone who knows more about it.

In any case, your statements don't address the question.  A woman who decides
to carry to term has certainly taken "the man's sperm sample and had the
eggs fertilized".  Again, the only difference is location.

>   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.

What you believe shoud be true, and what is true are two different things.
I am pointing out that the law is in the process of destroying the 
underlying legal basis for child support.  I am demonstrating how that 
demolition can be completed.  It may take a while to do, but it is 
perfectly feasible given the logic which permits legal abortion, and the
development of reproductive technologies, with their concommitant legal
problems.  It can be done today.

>   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.

Eggsssactly!  Biological causation is fading in importance.  Reproductive
technology and legal abortion will be the last nails in the coffin.
Child support is based on an outdated (your word) notion that does not 
match current reproductive law.


>   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.  

You are incorrect.  That is not my scenario.  The law would be unable to
compel a man who claimed religious convictions against such monetary 
contributions.

>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.

What you say may well be true.  But given the fact that the man is merely 
a supplier of raw material, one wonders how relevant "caveat emptor" is.
And, as you loved to point out above, technology changes.  Maybe she'll 
just have to swallow a pill to dump the fetus.  The point is, child 
support is not logically enforceable now, and will certainly disappear
within a generation.

Steven Kellmeyer