From: slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer)
Subject: Re: Right To Not Support
Organization: University of Illinois at Urbana
Date: Sun, 16 Aug 1992 23:57:22 GMT

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


>Not that anybody cares at all, I'm sure, but I view the issues of abortion
>and child support as completely separate issues.

>The principle behind abortion is that nobody, not government, not father of
>prospective child, has the right to tell a woman that she must be host to
>another organism for nine months inside her body.  The disparity in apparent
>rights arises because removing a fetus from a woman's body kills it (in most
>cases, we'll not get into late-term premies).  If it were the case that
>removing it did not kill it, and the man could find a way to keep it alive,
>IMHO, the woman has no right to demand its death.  This is one reason why
>I do not agree with the opinion of the court in the following case:


>In article <BsL96r.4t6@news.cso.uiuc.edu> slkg9733@uxa.cso.uiuc.edu (Steven L. Kellmeyer) writes:

>   Note that there *IS* legal precedent for avoiding child support via 
>   exercising the "right to choose not to be a father".  Check the recent
>   Tennessee court ruling involving eight frozen embryos.  The embryos were
>   created when husband and wife were still husband and wife.  Marital 
>   problems and a divorce resulted in an unclear status on the embryos, with
>   the mother desiring to carry to term, and the father trying to forbid it.

>   The court ruled in the father's favor, claiming he had a right to "choose
>   not to be a father" even though BOTH parties clearly intended to create
>   children at the time the technique was performed, and both took clearly
>   definable, narrowly applicable action to specifically procreate.  
>   This was, in every sense, "a planned pregnancy."

>   Considering the details of the case, the only specific difference between
>   this case and a normal pregnancy was location of the embryos.  *IF* a 
>   third party has control of the embryos, the man clearly has a right to
>   "choose not to be a father".  If the woman controls the embryos, he
>   currently does not.  However, this case could easily be used as a lever
>   to pry away the "duty to support" which currently obtains in the courts.

>   One has only to show that the location of the embryo is not germane to 
>   the decision to support.  If a man can back out of fatherhood after a
>   planned, intended embryo-creation, why can't a man back out of "fatherhood"
>   after an unplanned, unintended embryo creation - especially when, in both
>   cases, the embryo is not under his control?  There can be no breach of 
>   promise, for if it did not obtain for the father of the frozen embryos,
>   who most clearly DID make an implied contract with the mother, how can 
>   it obtain for a one-night stand?  If we want to claim that accidental 
>   damages would incur to the mother, alright, but that hardly works out
>   to 18 years of support, and the court must then explain why the mother
>   in the frozen embryo case was not *PERMITTED* to unilaterally accept
>   these "damages". After all, the court could have allowed her to while
>   denying that the man had to pay a dime.  Instead, it ruled the man had
>   the right to "choose not to be a father."

>Just as no one can force a woman to host a fetus for nine months, neither
>can anyone force her to undergo an abortion against her will, according to
>the same principle.

>The issue of child support is entirely different.  Mothers do not sue fathers
>for child support.  Mothers enjoin the state to sue on behalf of a minor (the
>child) for what is currently the child's right under the law as it now stands.
>I note that everybody here has assumed that mothers automatically get custody
>and that mothers get the child support.  While the current situation is very
>inequitable, there is no legal reason why the father could not also.  A woman
>may not give a child up for adoption without the consent of the father---if
>he wants custody, he may have it, and enjoin the state to sue her for child
>support.

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.  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.

>Currently under the law, a child has the right to support from both parents.
>The mother cannot sign that right of the child's away, no matter how much she
>may wish to.  She and the father may come to a de facto arrangement where this
>is the effect in reality, but legally, she may not do so.

Again, this made sense when abortion was illegal, except in cases of  life
and health.  However, in what sense is the man a "father"?  The Tennessee
court followed the Supreme Court in determining that the man who's sperm
was used to create those frozen embryos was not YET a father.  Likewise,
no man in the U.S. can become a father until the child becomes a child, 
i.e. not until birth.  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.

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?

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

>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.

>Yes, the current situation is quite unequal, but because of biology not because
>of the law.  There are two separate legal principles here---the right of 
>bodily self-determination, and the right of a child to support from its
>parents.  You either have to break one of these, or get around biology 
>somehow.  Since we can't get around the biology currently, which principle
>should be broken?

One has already been broken.  The concept of "father" has been virtually
destroyed by legalized abortion and current reproductive technology.
Society just hasn't quite recognized that yet.  Give them a few more years.
			    They will.


Steve Kellmeyer
Newsgroups: misc.legal