From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Pre-Sex Contract
Keywords: sex, agreement, legal, contract
Organization: Who, me???
Date: Mon, 14 Dec 1992 06:19:07 GMT

In article <geDZuB2w165w@dogear.spk.wa.us> bobk@dogear.spk.wa.us (Bob Kirkpatrick) writes:
>kevin@rotag.mi.org (Kevin Darcy) writes:
>
>> It was "just" a semantic point, since it was moot. Bob and I have already
>> agreed that the clause in the original contract was unenforceable. The only 
>> academic question I raised was whether it was also, as he claimed, 
>> "unconscionable".
>
>It may have been a misnomer, however, the term is applied to any contract
>which unfairly causes an oppression to one of the parties. I think that
>courts would look at the contract as an attempt to coerce towards abortion
>and thus consider it unconscienable. It goes towards why the contract was
>unenforcable. As you say, it's a semantic point if any --given the thread
>we have.

My understanding of "unconscionability" is still centered on the idea of
gross disproportion in value of consideration. But "value" is obviously a 
relative term, and I think that in courtroom it would be necessary, in order 
to use the "unconscionability" defense, to show not just that the party 
against whom enforcement is sought failed to get a "good deal", in subjective 
terms, but that the value of the consideration they were offered wouldn't be 
considered proportional to the value of the consideration demanded by ANY 
reasonable person. In the case of the so-called "pre-sex contract", I'm sure 
many women, who have no moral scruples about abortion, and who have decided 
and declared that they are not yet ready for motherhood, would find such a 
contract offering 50% or more of the cost of the abortion QUITE valuable. 
Therefore, I don't see how the "unconscionability" defense could apply, since 
there is a readily-identifiable class of persons who would value the 
consideration offered by the other party.

>> That paragraph was written from the post-natal point-of-view. Sorry if I
>> didn't make that clear. I was trying to show where I thought the finger of 
>> blame should first be pointed, IF it is to be pointed at all.
>
>I lean towards both (potential) parents.

"Both" potential parents don't have the Last Clear Chance to avoid the
existence of the child. 

>> Trouble is, when BOTH partners are irresponsible, in the sense of having
>> sex with each other, without adequate discussion beforehand, only the man
>> gets stuck with the massive involuntary burden. That's the inequity we would 
>> like to address via reform. Prevention would be nice to legislate, but rather
>> impractical. Ensuring a just result, however, is clearly within our grasp.
>
>Here's the core of our discussion, I think. (Not your contention that pre-
>vention can't be legislated --I agree completely there.)
>
>I don't know that only the man gets stuck, or that only he is an involunatry
>participant. Yeah, that does sound self-contradicting, bbut it isn't. 
>
>In my court dealings, I've met quite a few women who became pregnant when
>they really didn't want to. Before this, they were staunch in their belief
>in abortion. When it was they who were pregnant, they found that they didn't
>believe in abortion  _for them_. On one hand, I'd LIKE to say "wotta doof,
>well, you made your bed, now lie in it." But on the other hand, I HAVE to
>say "well, theory is one thing, reality is another."
>
>What this all means is that women can be involuntary parents --although I'll
>admit to a significant difference in the circumstances and degree of unwil-
>lingness. 

A _critical_ difference, in my opinion. In defense of the current law, you are
implicitly asking the man to make his choice during or slightly before the 
throes of passion, but allowing the woman to change her mind any time up to 
the point that she may no longer legally abort. If the man were allowed to 
change his mind in EXACTLY the same frame that the woman can, then maybe I 
could accept the premise of "well, even though {he,she} has committed 
{him,her}self, for the sake of compassion, we'll allow {him,her} to back out 
of the commitment". But as long as the time and circumstances under which HE 
may back out are so radically different from the time and circumstances under 
which SHE may back out, you'll still see me yelling "inequity!".

>[child-support]
>> >>may help that one child, but prevention can help thousands, perhaps million
>> >>from suffering the same fate.
>
>No question. But you appear to be making similar generalizations to those
>the courts and legislators often do: move from the individual case to a
>discussion of generalities. On one hand, that makes you absolutely correct,
>people need to be a LOT more aware of the realities of unwanted pregnancy.
>On the other hand, it isn't speaking to the issues confronted by those who
>now have a pregnancy or child to deal with.

Bob, I don't want to compromise the support of existing children. After all,
they were conceived and born with their parents having an understanding and 
reliance on a certain state of law, and I think that in their case, the law 
should stay the same. I guess that might be one of the things that separates 
me from the pro-male-choice reformers around here who are personally involved 
in child-support -- I have no qualms with "grandfathering in" these reforms. 
Yes, that means that some inequity will continue for as long as a generation,
but there must be a just transition -- it's not fair to leave mothers and 
children "high and dry" by reforms. In fact, wouldn't that amount to an "ex
post facto" law?

>> >>And, by the same token, legal encumbrances are a way of establishing some
>> >>measure of consistency and predictability in the affairs of humans. In this
>> >>case, it gives the man some degree of security that his property rights won
>> >>be gutted just because his lover "flip-flopped" her personal views on 
>> >>abortion once she got pregnant.
>
>It's a problem. Just as is the man who wanted any child aborted until he
>became a 'potential dad.' I'm looking at cases where the men flip-flop on
>their position. Motions for injunctions to stop abortions aren't all that
>uncommon. They usually fail, but there's enough of them to show that men
>so some serious mind changing, and thus the problem isn't only with women.

Usually!?!?!? How could they EVER succeed, given such precedents as RvW, etc.??

>I think your use of the words "property rights" is interesting. What exactly
>do you mean by that?

The state deprives him of his property rights, Bob, which violates the Due 
Process of the Fourteenth Amendment, unless, as the "substantive due process" 
precedents have developed, there is a "rational reason" for the deprivation. 
I'd like to demonstrate, on the basis that the paternity child support status 
quo violates the established legal principle of Last Clear Chance, and 
ENCOURAGES the production of illegitimate children, and makes those children 
dependent on an unreliable source of support, and the support arrangement at 
best embitters and at most completely destroys the NCP and thus causes severe 
social problems, that there is no such "rational reason" for the current 
system. To back that up, though, I'll need to do a whole helluva lot more 
research than I have already :-)

>> >Now this is a different issue.  But any such changes that allow for
>> >contracts prior to conception to be binding on the child ...
>> 
>> Whoa! I'm not calling for the contract to be binding on the CHILD. The child 
>> would get the same benefit-of-statute as it always did. This contract would 
>> bind only the principals -- the parents.
>
>So, what you're saying is basically that, the woman should pay back all of
>the support --but after the child has grown to adulthood. I say this because
>we've agreed (I think) that the state would supercede the contract.

Er, no, I'm saying that the reimbursement arrangement instituted by the 
contract in the event that the woman has and keeps the child would not REPLACE
child-support, it would be PARALLEL to the statutory obligations. Importantly, 
if the mother were to become insolvent, the contractual obligations would be 
slashed _first_, before the statutory obligations could even be touched, and 
thus the father would have to help with the support of the child. The child's 
right to support is thus maintained, and IMO the courts therefore have no 
business refusing to enforce such a contract.

As for the arrangements for payment of the reimbursements -- before, after,
or during the time that the man and woman have statutory obligations -- those
are contractual details that the parties would have to come to agreement on.
I'm not recommending anything in particular in that area.

>Now, on THAT basis, the woman would have to pay it back after the child grew
>up because the law would view any ongoing dollar-in/dollar-out repayment as
>an attempt to skirt support.

What business is it of the court if the contract doesn't attempt to REPLACE the
support obligations, Bob? As long as the child's right to support is 
preserved, why don't the normal rules of contract enforcement apply?

>> >>You see, Bob, why we "pro-male-choicers" want reform? We're not radical; we
>> >>just want to align the paternity child support laws with the rest of the la
>> >>by reasserting the idea of negligence-based liability. In a sense,
>> >>then, we're  
>> >>extremely Conservative. We want personal responsibility to be proportional 
>> >>negligence. 
>
>I understand that. But, I do have a sense that what's being fought is a
>type of 'enemy' that's somewhat ethereal. Biology plays a large part in how
>the "choice" is presented, and that's a difficult thing to put into legal
>terms with legal remedy. Courts can't order people to become a different
>sex. (-:

Well, biologically, when a man and a woman have biological sex, and she gets
biologically pregnant, he could, biologically, say with his biological mouth
"hasta la vista, baby", and, biologically, run away as fast as his biological
legs can carry him. And the woman biologically gives birth, and the baby
biologically starves to death if the woman isn't biologically capable of
feeding the child on her own. Biologically. The only reason this doesn't
happen right now is because of a nasty, evil, ikky NON-biological, abstract
thing called "the paternity child support laws". So which side is the woman's
bread buttered on, in terms of getting support for her child -- biology or 
non-biology? Be careful how you answer.

Anytime folks wanna scrap the current paternity child support system and 
return to "biology", I'm sure you'll find a whole bunch of us male-choice 
reformers cheering y'all on. :-)

>So, gender applies much of the "when" and "how" choice is available to 
>either the man or the woman. If abortion was, for some reason, not an option
>to the woman, then both the male and female would be in the same boat as far
>as the "when and how" was concerned. 

I agree. In fact, when most of these statutes were enacted, abortion was
ILLEGAL, and therefore the legislation made a certain amount of sense. But 
when abortion became legal, for some reason the statutes remained, even after 
their underlying assumption had been nullified. I think it's time for some 
catchup.

>So it seems to me that the contract, or
>the concept which underlies it, deals in terms of the woman's ability to
>abort.
>
>If we accept that premise, and I *think* we do (no abortion = man and woman
>having to prevent father/motherhood via contraception), then the involuntary
>quality of parenthood becomes a moot point in terms of this whole thread.
>
>Here's why: We can't, given societal orientation and law, legislate an
>invasive procedure (abortion). We can't take a child from a parent (absent
>clear proof of actual harm to the child.) We can't find a vehicle to repay
>support (at least until the child has reached adulthood --and then it's too
>late to keep the NCP held harmless from the financial circumstances).

I disagree with the last sentence. I don't see how a contract specifying 
repayment violates anyone's rights, or could reasonably be considered "bad
social policy".

>As such, I maintain the position that women have, by virtue of biology, an
>opportunity that men don't have. I maintain that women's ability to choose
>carriage or abortion deals in terms of the "inalienable rights" our society
>believes in on the whole. 

Property rights are also "inalienable", Bob, absent a showing of a "rational
reason" for a property deprivation. I see no such showing.

>This leaves me with the position that if a person
>absolutely doesn't wish to be a dad (or mom), they need to be cautious way
>up front --before and during sex.
>
>I've heard the arguments about broken condoms, women poking holes in their
>diaphragms, all of that stuff. It still doesn't remove the responsibility
>that both (could be) parents need to go the distance in terms of prevention.
>I think you were saying something similar earlier in the post.

Bob, in what way are the contracts being proposed and developed NOT 
evidence of using foresight and "caution" in one's affairs? Surely you
don't oppose the idea of people talking about birth control and parenthood
before having sex, and coming to some sort of mutual agreement, do you?
Well, these contracts are simply an attempt to formalize those verbal
agreements. And no-one is obligated to sign them if they don't wish to.

Or, like Rosenblatt, do you believe in Female Privilege, specifically, the
Privilege to Change One's Mind About Parenthood, even if that privilege comes
at the expense of the man's property rights? To me, all Rosenblatt's bluster 
about Female Privilege sounded like Looney Tunes. I didn't think anyone took
him seriously...

								- Kevin