Monday, September 15, 2008

Risk, Consent, Abortion, and Child Support

My latest FindLaw column elaborates on the question of whether consent to an amniocentesis -- which risks a spontaneous abortion -- is tantamount to consent to an abortion, if the pregnancy is lost. I conclude that it is not, but I raise the issue of whether the pro-life position -- that women consent to any resulting pregnancy when they have intercourse -- is perhaps inconsistent with that conclusion. In the process, I discuss a variety of examples in which we do or do not treat risk-taking as consent to foreseeable consequences, and I identify some of the factors that appear to distinguish the two sets of examples.

In this post, I want to take up the distinct question of whether it is unfair to demand child-support from biological fathers who did not choose to have a child but only to have intercourse and who may, in fact, have unsuccessfully encouraged their partners to terminate their pregnancies.

As I have written elsewhere, I do not think that a simple genetic connection is enough, alone, to trigger child-support obligations (e.g., if a man is compelled against his will to donate sperm, he should not be held liable to support the resulting offspring). And we routinely allow men to give up paternal obligations when they donating to a sperm bank (and even to earn money in the process). It does therefore seem that if we hold a man financially accountable for 18 years when his sexual liasons ultimately result in the birth of a child, we may be doing to him what those who would compel women to remain pregnant against their will wish to do to women. Is this fair?

I am conflicted about it. On the one hand, if a man is utterly uninterested in his offspring, a part of me wishes there were some way to say that he is not truly their father and therefore bears them no financial obligations. Some advocates within the father's rights movement have called this idea the right to a "financial abortion" (about which I wrote here). Yet another part of me feels that if a child has financial needs, it is not too much to ask that the person who helped give rise to those needs do his small part in satisfying them. No one, after all, is forcing the man actually to care for his children or to spend time with them against his will, never mind donating blood or a kidney if they should need it for their survival.

I do think there is a significant difference between compelling a woman to remain pregnant against her will and compelling a man (or a woman, for that matter) to contribute financially to a physically separate child. In the first case, the State has turned the woman into a reproductive slave for the term of her pregnancy. In the second, it has simply asked for the distribution of resulting financial costs to the most responsible parties. The man can be viewed as paying damages for his part in creating the child's needs, but a compulsory pregnancy would be more like ordering "specific performance" of particular, personal, and bodily-integrity-challenging duties.

Some will say, of course, that there is more to lose in the case of actual abortion than in the case of financial abortion -- even without a father's financial support, at least the child is alive. This is true, but it misses the point. If a child needs a kidney transplant to survive, then the stakes are at least as high as they are in the case of pregnancy. Yet, to my knowledge, we have no law that requires a father to donate a kidney to a child, even if the alternative is the child's death. Though he took risks that helped create the need for a kidney (or any other medical need that might call for a close relative's intervention), we draw the line at bodily integrity.

Posted by Sherry F. Colb