Anyone who has worked in the field of matrimonial and family law, as I have, would be shocked to learn of the purported “forced fatherhood” crisis that has been announced multiple times this year, most recently at Salon. Ignoring a few minor points, “stuff like biology, economics and reality,” Anna March argues that we should make fatherhood optional by allowing men a time-sensitive opportunity to “opt out” of paying child support. She maintains that this “is good for women, men, and the kids in question.” And, she does this in the name of feminism.
As a feminist man and a lawyer, I am always up for a discussion on improving men’s lives through feminist theory and policy, and for advancing justice and fairness. If you want to talk about how the patriarchy and sexism damages and limits boys and men, I am so there.
Look, if the goal is the political, economic and social equality of the sexes, than I understand the desire to extend this goal to the arena of reproductive rights. In a Utopian world, no person – male or female – would be forced into parenthood. In the case of reproductive rights, however, biology is destiny. While fairness is a basic feminist value, as March argues, neither feminism nor justice should apply values blindly.
There is no way to equate women’s reproductive rights with those of men. By nature, women are the sex that bear the greater risk when they have sexual intercourse, and it is only women who have been severely penalized when they have illicit sex. The fact that abortion and adoption are options for women does not mean that these options are always available to them or that they must take these options.
Men have always and continue to have the option of “opting out” of fatherhood because their bodies are not physically affected by pregnancy. They do not carry a future human within them. Were it an option for men to do this they should certainly have the same options available to women. But, as it now stands, their options are to refrain from unprotected sex if they do want to risk having a child, having a vasectomy, or wearing a condom.
This may seem unfair to those who want men and women to have exactly the same reproductive freedom. I certainly don’t like the idea of penalizing anybody for having sex and I agree that “in consenting to sex neither a man nor a woman gives consent to become a parent.” Yet, it is also true that in consenting to sex – even protected sex – the man and woman involved give implied consent to the risk of pregnancy. And, in the event of pregnancy, the man does not have a decision to face about his own body, and should have no legal right to control the decision the woman must make.
Given this reality, the best public policy for children born without their father’s consent is the one currently in place that requires the father to support the child financially. To suggest that men be allowed to opt out of this financial obligation would further penalize the woman who is now raising a child. To argue, as March does, that the government can or should support such children ignores the reality of government’s shrinking budgets and the economic devastation it would have on children.
With the support laws we have in place, it can be quite difficult to obtain support from fathers. Even in the case of divorce after raising a child for years, many fathers claim what is known in the industry as RAIDS (Recently Acquired Income Deficiency Symdrome) in order to reduce their child support obligation. And, once a support order is in place, there is no guarantee that a father will comply. Often, mothers are forced to bring enforcement or contempt motions or respond to repeated requests by fathers to reduce the level of child support. In other words, obtaining child support from an absent father is difficult, time consuming, and potentially a never-ending quest.
Mothers raising children on their own who are actually receiving child support are still more often in a stressed financial state. Support payments do not necessarily cover all of the costs of raising a child and are based on statutory formulas. It is also single mothers whose careers and earning capacities may be impacted. Fathers paying child support may grumble but they will never feel the economic pain felt by these mothers.
While the “paternity fraud” March discusses exists, it is not a system-wide problem they way that support avoidance is, and thus to have such cases inform system-wide policy is illogical. Regardless, it seems to me that allowing fathers the option of declining fatherhood would lead to increased litigation and would further tax the court system as parties dispute whether or not such waivers of fatherhood took place.
Finally, as Carolyn Edgar notes, March incorrectly equates paying child support with fatherhood. While men may be forced to pay child support, they can never be forced to be fathers as the “burden of actually raising a child usually falls to the mother as the custodial parent . . . A man can choose not to have a relationship with, or help raise, a child he has fathered.” And it is a sad truth that too many men have already opted out in that regard. To make it easier for men to avoid all consequences of the children they bring into the world is certainly not in the best interests of the women or children involved.
Ariel Chesler is an attorney in New York. He lives with his wife and two daughters, and one cat. He is the son of feminist author and psychologist Phyllis Chesler.