From: slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer)
Newsgroups: misc.legal
Subject: Right to Not Support (Darcy contradicts himself)
Date: 22 Aug 92 03:27:02 GMT
Distribution: misc.legal
Organization: University of Illinois at Urbana

>>In article <Bt3p7r.I2L@news.cso.uiuc.edu> slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer) writes:
>>
>>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.  Since RvW, this clearly no longer holds.
>>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.  

>Child support is not levied on the basis of who _physically_ creates a child.
>Your starting premise is false. It is levied on the _social_ process of 
>creating a child, i.e. voluntary participation in sexual intercourse, and 
>the father is typically "guilty" of this.

>Back to the drawing board, Kellmeyer. Your scare tactics won't work.

Oh, of course.  How silly of me.  Child support "is levied on the _social_
process of creating a child" "not ... on the basis of who _physically_
created the child".  I guess I forgot that the OB/GYN is liable for child
support from every kid s/he delivers.  After all, s/he's part of the "social
process".  That's why *ANYONE* at all can be enjoined to support any child
at random.  Physical creation, as you point out, provide absolutely no
basis for support.  Kevin, stop inhaling.

Genetic testing is done precisely and only because physical creation is
the central issue in who bears the duty to support the child.  Unfortunately,
the logic of legal abortion has made it quite clear that the man does *NOT*
create the child, he supplies only raw material.  The courts are beginning
to recognize this.

Tennessee ruled that a man has a "right to choose not to be a father" even
though the fetuses already existed and were created through an action set
whose sole and only purpose was procreation.  The fact that, according to 
the law, no child existed yet meant the man could prevent their coming into
existence.  Note that this only holds if the woman does not control the
fetus.  If she *DOES* control the fetus, she can override whatever rights
the man may have, currently.  This will certainly not continue to be the case.

In the case of surrogacy, IVF (in vitro fertilization) and AID (artificial
insemination by donor), other interesting things happen.  The mother is 
currently defined, in the states where contests have occurred, to be the
one who *CARRIES TO TERM AND DELIVERS*.  Doesn't matter who supplied the egg.
Isn't that interesting?  Child support assumes the parents owe a duty of 
support to the child - the child is the one who requests support, albeit
through the legal guardian.  Note that AID permits men to sign a waiver
which releases them from child support obligations.  How is this possible?
How can a man sign away the rights of another person, when he is not that
other person's guardian?  Very good question.  

Take the Logic of legal abortion, the Tennessee court case, the way surrogacy
is handled, and the way AID is handled.  Put them all together.  Suddenly,
it becomes very difficult to support the contention that men can be forced
to pay child support in the current legal environment.
How long before some legal genius finds a court and a client willing to
try to make this fly?  I don't know.  I'd bet it doesn't last another 20
years, though.

>>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...

>Why does this follow? If I buy 2 shares in, say, a huge multi-national banking
>conglomerate, can I "legally compel some sort of recognition" [sic] in the
>day-to-day affairs of that huge multi-national banking conglomerate? I think
>not. My tiny stake in its future is considered too insignificant to give me 
>such a LOUD voice. Roughly-similar reasoning is applied in the case of the
>PHYSICAL abortion decision.

You can.  You cannot be deprived of the right to vote your shares.  It may 
not make any difference to the final decision, but you have a legal right 
to vote them.  Your right to that representation cannot be denied.
The man has no legal representation.
The man has absolutely no legal voice in the abortion 
decision, and according to current logic, he shouldn't since he simply
supplies raw material.

>>He is no more a causative agent than the doctor who mixes sperm
>>and egg in a test tube, yet that doctor cannot be enjoined by the mother.
>>The man can be.  How do the doctor and the father differ?

>She cannot enjoin the doctor, because (presumably) it's not HIS sperm.

>Simple, yes?

But, as you point out above, physical processes don't matter.  You claim
only the _social_ process of creating a child is what matters.  What 
possible difference does the ownership of the sperm make?  That's a 
physical nothing, according to you.  The social process of creation is
what matters.  The scientist mixing sperm in a tube is certainly 
engaging in a social process of at least the importance of a one-night 
stand.

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

>*BOTH* parties enter into a kind of "implied contract" when they have sexual
>intercourse, but the financial liability specified in the terms of that 
>contract are CONTINGENT on a specific event -- birth -- which occurs at the
>discretion of the mother.

>You may call this implied contract unconscionable, but please don't insult
>our intellects by trying to tell us it only exists for one of the parties.
>Obviously it exists for both. The statutes are clear on this point.

Sorry, but if only one party can nullify the contract, I don't think it 
is going to hold.  Indentured servitude went out with breech pants.

>>How does an anonymous sperm donor differ from any of the above?  

>It's much clearer that the sperm-donorship recipient VOLUNTEERS to shoulder 
>the entire child support responsibility in that case...

They cannot voluntarily give away the child's rights.  Clearly, the courts
don't see sperm donors as having any duty toward the child to begin with.
How does a sperm donor and a one-night stand differ, in terms of duty
to the child?  The sperm donor clearly intends his sperm to be used to 
create a child.  The one-night stand man almost certainly does not.  He's
in it just for a pleasurable evening.  Yet the latter is held to support 
and the former is not.  

>>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?

>Ditto the rationale above.

Boy, I'd agree if the courts would.  They don't.

>>>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.  

>Please do not put words into my mouth, Mr. Kellmeyer. My reasons for believing
>that women have child support liabilities is NOT based on this. See above for
>my distinction between the PHYSICAL and SOCIAL processes of child-creation.

Yes, and see above for the mess it puts you in.

>>They are correct, as near as I can tell.

>You can't tell diddly, Kellmeyer. There is NO NADA ZERO ZILCH ZIP reason to
>believe that reform is just around the corner. You have not produced even one
>iota of proof that the Tennessee case you're so fond of citing has any 
>precedential bearing whatsoever on the paternity child support issue.

Taken alone, probably not.  Taken in conjunction with other rulings on
procreative activity, and the case is not half-bad.  I'm certain a
liberally-minded, individual-rights judge could be found to break
this thing wide open.  You're damn lucky the Warren court isn't still
around, or child-support would probably be history by now.

>Take your scare tactics somewhere else. You're not fooling anyone except 
>possibly yourself. Paternity child support, either in its current form, or in 
>a stronger, restructured form, is here for the LONG haul. Those like myself
>who are yelling "foul!" by and large do NOT want to scrap paternity child 
>support completely -- we just want it to work FAIRLY. And, unlike pro-life 
>alarmists such as yourself, we push no hidden agenda.

My agenda isn't hidden.  I know quite well where pro-choice logic is taking 
us, and I do not attempt to hide it.  In fact, I point out exactly what
precedents will be used to overturn current child support law.  You, on
the other hand, try to tear down the law with one hand, while proclaiming
that you support it on the other.

>								- Kevin

Steve Kellmeyer
Newsgroups: misc.legal,talk.politics.misc,alt.society.civil-liberty