A new front in the battle of the sexes

Posted Sunday, July 8th, 2012 by Gregory Forman
Filed under Child Support, Jurisprudence, Not South Carolina Specific, Of Interest to General Public, Paternity

A recent scientific breakthrough allows the paternity of an unborn child to be determined through a blood test of the mother as early as the eighth or ninth week of pregnancy.  This prompted Shari Motro, a law professor at the University of Richmond, to write an op-ed piece for the New York Times suggesting the time has come for “pregnancy support alimony” (the Times’ term, not Professor Motro’s).  She suggests that the fathers of these not-yet-born children “be asked to chip in for medical bills, birthing classes and maternity clothes, to help to cover the loss of income that often comes with pregnancy, or to contribute to the cost of an abortion.”

I suspect one’s reaction to this suggestion is strongly correlated with one’s gender.  I can see female readers thinking, “about damn time!,” with my male readers thinking, “Hell no!”  I can see the logic in both genders’ viewpoints.

Obviously, if the law can require fathers to contribute to the support of their out-of-wedlock children, there’s no logical reason they shouldn’t be required to contribute to the support of such children while they’re being gestated.  Professor Motro’s list of costs to be included in such support are all associated with pregnancy, which buttresses her argument that both parents should be required to equitably contribute to these costs.  The major reason such costs haven’t been part of child support obligations isn’t jurisprudential but evidentiary: there was previously no safe, minimally-evasive method of determining paternity prior to birth.  With such evidence now obtainable through a blood test of the mother, this problem is overcome.

However allowing such support further highlights the unreciprocal rights of each gender to determine the course of pregnancy.  The law repeatedly tells fathers that childbearing, and the consequent support obligations, are “one of the risks of heterosexual sex.”  However the law vests women with the full authority to decide whether to carry a pregnancy to term or terminate it.  The law could, in theory, require women to bear these children as “one of the risks of heterosexual sex.”  Largely out of a desire to not intrude upon such important decisions as to whether to bear children, and a sense that personal autonomy is a vital component of a limited government, the law doesn’t do this.

Yet when it comes time to require fathers to support children that they did not desire to have the law shows no similar restraint.  In fact the law uses its police powers more coercively to collect child support–the amount of government resources and jail space used to enforce child support orders is shocking–than for any other type of private debt.  From a fathers’ perspective, “pregnancy support alimony” is further coercion stemming from a decision over which they have no control.

I would not be surprised to see pregnancy support become part of the legal landscape over the next decade.  From an economic standpoint requiring fathers to contribute pregnancy support seems just.  However every time the law requires fathers to contribute more support for children they did not desire to bear we erode the argument that women should have the absolute right to determine the course of their pregnancies.

One thought on A new front in the battle of the sexes

  1. Eric says:

    Good article, Greg.

    In my practice I see some parents who fight over custody as a proxy for the attendant child support. To be certain, this is an unfortunate incident of our system. But I wonder, if it can be said that a person will decide to seek custody due to the allure of monthly child support, is it also possible, or likely, a woman’s decision to carry a child to term may be likewise influenced?

    As I write this, the absurdity of it all does not escape me but I cannot think of any reason why such a thing will never happen if “pregnancy support” becomes a reality.

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