The New Neo

For biological reasons, men and women are inherently unequal when it comes to their roles in becoming parents. To be exact, women become pregnant and give birth and men don’t, and those differences are likely to remain into the foreseeable future.

If a child isn’t wanted by both sexual partners, you’d think that—with the advent of reliable and easily available birth control—unwanted or unplanned pregnancies would happen very rarely. Well, we all know how that’s turned out.

Once an unplanned pregnancy occurs, a mother-to-be and father to-be have some decisions to make, about which they might agree or disagree with each other. If unmarried, they can decide to get married if they want, and to have the baby and raise it together, if both want that as well. If neither wants the baby born, and both are in favor of abortion, the woman can decide to abort it and the man would be likely to approve. It neither believes in abortion and in addition neither wants the baby, the woman can give birth and give it up for adoption, and both would agree that’s a good solution. And if both want the baby born and both want to raise it, but they don’t want to get married, they could agree on custody and visitation arrangements, or alternatively there can be a custody hearing that would be somewhat similar to what would occur if they had been married and were now divorcing.

But what about other disagreements? For example, what if the mother wants to have an abortion and the father doesn’t want that? What if she wants to give the baby up for adoption and he wants to raise it himself? And what if he doesn’t want her to keep the baby because he doesn’t want to be forced to pay child support? The law addresses these fact situations and cases differently.

The first legal principle is that the mother makes decisions about her body. Let’s say the mother wants an abortion and the father wants to stop her, or the father wants her to have an abortion and she wants to have the baby. Legally he has no say in the matter. Although it’s his baby as well, the baby is developing within her body, and he cannot compel her to have or not to have an abortion against her will. That’s a sad fact of life (and death) for fathers, but there’s no way around it legally because the consequences of a different ruling—that he could force her to carry the baby and have it against her will, or force her to have an abortion against her will—would be terrible. Of course, you might say that with abortion all of it is terrible anyway.

But adoption is different. No, a father can’t compel a pregnant woman to keep the child and raise it after its birth. But if she does decide to bear the child and wants to give it up for adoption, although the law is complex and varies from state-to-state in terms of what he must do to preserve his right to raise the child, much of the time he can do so—providing, of course, he knows there is a child in the first place, and is willing to accept responsiblity for it. Sometimes he is kept in the dark about the existence of a child, especially if he is no longer in contact with the woman during her pregnancy. In certain circumstances, if a mother-to-be wants to keep mum about the identity of the father of the child she can. So in the realm of stopping an adoption, fathers have some rights, because the baby is no longer part of the mother’s body.

But what if she decides to keep the child and raise it, and the father does not wish to be involved in any way? The way the law stands now he is liable for child support no matter what his wishes, and there’s nothing he can do about it. This is true whether he consented to the birth of the child or not, or even if the mother lied to him and said she was using birth control when she was not, or whether he and/or she used birth control that failed for some reason or another. Whether or not he wanted a child or even had reason to believe the act of intercourse in which he engaged was highly unlikely to result in conception, the state has an inherent interest in holding parents responsible for supporting their children financially. The state does not want to have to support those same children itself through welfare.

But what if such a father were willing to relinquish all parental rights, including those of custody and/or visitation, and thus be excused from paying child support? At first glance, that seems to be only fair. After all, it equals the playing field somewhat, since it merely gives a father the right a mother already has (through adoption or abortion) to opt out of parenthood and responsibility for an unwanted and unplanned child.

It’s an especially attractive proposition if in fact the woman lied to him and said she was on birth control pills, for example. Why should he have to spend eighteen or so years supporting the unintended (by him) result of her lie?

A personal word here—I don’t like any of this. I fervently wish people only had children wanted by both parents. I wish birth control were foolproof. I wish people didn’t lie to each other about stuff like whether they are using birth control (something men can do, too; all they have to do is say that they’ve had a vasectomy when they have not). I wish all children were conceived in love and mutual respect. I wish I wish I wish—and what difference does it make what I wish?

Reality is different, and it seems as though it’s getting more different every day. And the law must deal with reality, not wishes. Given the inherently unequal situation in reproduction that I started this post by acknowledging, and the present-day facts of abortion and adoption and unmarried parents and all the rest, doesn’t it behoove us to make things as equal between the sexes as possible?

I think it does. But we must beware, beware the law of unintended consequences. Because if fathers are allowed to relinquish their parental rights in order to get out of paying child support for an unwanted child, it may be that one of the consequences is likely to be that more children will effectively become fatherless, and the state (that is, the taxpayer) may end up having to pay instead of the father.

Of course, we don’t know for sure what would happen. It could be that, instead, such a law would cause potential unwed mothers to think more carefully before they have sex with a guy who’s not marriage material, and who isn’t serious about them and about his future responsibilities, because the potential mother would know she can’t necessarily get him to pay. Hey, maybe the illegitimate birth rate would even drop. Maybe more babies would be given up for adoption and more infertile couples could raise them, loved and wanted by both parents, because the biological mother would know she would face a high probability of having to struggle financially without the father’s legally-mandated help.

Maybe.

But there’s a strange inequality that would probably rear its head if father opt-out were allowed: what about married men? Would anyone argue that a married man should have the same choice regarding a child he conceives within that marriage as an unmarried man would have? (Let’s simplify things a tiny bit by leaving out those special and complex cases in which a married man has been forced to support a child not biologically his, which does unfortunately happen at times). Wouldn’t it be unconscionable if married men could voluntarily relinquish rights (and duties) to their own children and remain married? And even if they wanted to divorce the mother and live apart and relinquish rights and responsibilities to their children, it would seem as a public policy matter that they should not legally be allowed to walk away from supporting their own children by that mechanism, even if the divorce is not their fault. Children would suffer even more than they do now, and it’s bad enough the way it is.

But if married (or previously-married) men couldn’t opt out of child support obligations and unmarried men could opt out, what effect would that differential have on marriage itself? I submit it would have a chilling effect on marriage. Many men are already opting out of marriage (see this), and so what would happen if unmarried men could evade responsibility for the children they father but married men could not? How many men would decide to get married under those unequal circumstances?

I don’t profess to know for sure. But my gut tells me the marriage rates would plummet. Marriage has fewer and fewer obvious benefits now, and a man already stands to lose a great deal in a divorce. A law like this would increase the penalty for marriage, would it not? Since for the most part men can have sex pretty easily outside of marriage these days, and even father children if they want, why wouldn’t they wish to preserve their freedom to decide to be a parent or not by remaining unmarried to the mother?

I can envision a day when only the highly religious get married, and the rest just have various fluid and ever-changing legal arrangements. Stability? What’s that?

Whenever I wade into these topics I find it depressing. There doesn’t seem to be any good solution to the problems of love gone bad and the resulting turf wars over children. And the comments sections of various blogs (including this one) for posts dealing with these questions often devolve into rageful shouting matches. I see many of the problems, but (as in this post) the solutions that come to mind are fraught with other problems, many of them even worse for children and society.

Life isn’t fair, sad and difficult choices must be made, and you can’t always get what you want—and although the law can change, it can’t change that basic fact. Nor can it change the law of unintended consequences.

[* NOTE: I put an asterisk next to “men” in the title of this post because, although men would be the ones most commonly affected by such a law, it is certainly possibly that some women would take advantage of it too. Although there are fewer of them in the situation than men, there are women who also lose custody and have to pay child support, and those women currently are not legally allowed to opt out of that responsibility either (there are those of both sexes who just disappear, of course, and opt out de facto rather than de jure). I would imagine that some of these women would willingly relinquish their parental rights in order to be exempted from paying support if it ever became legal to do so.]