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Child Support Obligations of Sperm Donors:

Thanks to Jocelyn Bowie for pointing me to a very interesting recent opinion in the case of Ferguson v. McKiernan, --- A.2d ---, 2007 WL 4555436, Pa., December 27, 2007:

A man (McKiernan) agrees to provide sperm to an unmarried woman (Ferguson) who wishes to become a single parent but wants to use the sperm of someone she knows rather than an anonymous donor. The man agrees not to seek custody or visitation of the child, and the woman agrees not to seek child support. The woman's eggs are then fertilized in vitro with the man's sperm, and resulting embryos are implanted in the woman's womb for gestation. Five years after giving birth to twins, the woman demands child support payments from the man. The trial court ruled that the contract is unenforceable because parents normally are not permitted to waive child support requirements. The Pennsylvania Supreme Court, fearing that no man in his right mind would ever be sperm donor if that ruling is upheld, reversed and freed the man of monthly support obligations.

The case illustrates several conceptual difficulties inherent in defining parentage and determining child support obligations. The majority of the Pennsylvania Supreme Court observes that if the "known" sperm donor is held responsible for caring for his "children," there is no reason why the logic wouldn't require the same of anonymous sperm bank donors. They, too, are genetic parents of the children. But if the line on one side — between donating friends and anonymous sperm bank donors — is difficult to defend, so too is the line on the other side. If the sperm donor friend need not support the offspring on the ground that he had no intention of becoming a "social" parent and genetic parentage should not be sufficient, shouldn't the same rule apply to a man who impregnates a woman through sexual intercourse after the two agree that the man will have no support obligations for any offspring? In this case also, both genetic parents understand and agree that the man is only providing genetic material and is not agreeing to become a social parent. If the man should not be responsible in this case, the next question is why he should be responsible when the pregnancy is accidental rather than intended and the man wants the woman to obtain an abortion but the woman declines to do so? The woman's right to control her own body guarantees her the right to unilaterally decide whether or not to terminate the pregnancy, but why should she be able to impose child support obligations on the genetic father who clearly wishes to avoid "social" parentage?

The usual response to all of these questions is that the woman has no right to waive child support because this right belongs not to her but to the child. But this response just begs the question of what relationship is necessary to establish such an entitlement. If genetic parentage is sufficient, then children should have a right to child support from even an anonymous sperm donor.

Many states (although apparently not Pennsylvania) have established by statute that anonymous sperm donors have no parental obligations, but the existence of such laws doesn't justify them. One possible defense of treating anonymous sperm donors differently is that states with such statutes abrogate the rights that genetic children fathered by anonymous sperm donors would otherwise have against their genetic fathers because such laws encourage sperm donation, which in turn makes it possible for the genetic children to be born, and being born but having no paternal financial support is better than never being born at all. But this logic, carried to its extreme, would suggest children would have no right to parental support in any case.

Perhaps another way to think about the problem posed by the case is that the woman cannot contract away the children's right to the support of their genetic father, but there is no reason why she should not be able to indemnify the man from any such claims. Her promise not to seek child support can be interpreted as such an indemnification. This reasoning seems sound from the perspective of contract doctrine — the woman can commit herself to a contract but not the third-party children — but it raises obvious practical problems when the man earns sufficiently more than the woman (as was true in Ferguson) such that his court-imposed child support obligation exceeds what she could pay in damages. Following this path of reasoning often would result in the resort to bankruptcy law to determine how much of the amount the man owes to his genetic children he can recapture from their mother.

Avatar (mail):
Wouldn't it be somewhat difficult to demonstrate that such a waiver had, in fact, taken place in the context of a romantic relationship? It wouldn't take a very bright guy to state that the woman had promised him that she wouldn't hold him financially responsible for any children that might result. (At the same time, certain women would make such a claim and then deny it was said later.)

Would you have to actually execute a legal agreement? I seem to remember the Chapelle Show having some sort of comedy sketch on that topic...

More to the point, though, isn't there a clear distinction between artificial insemination (which is always an intentional act aiming at pregnancy) and, er, more traditional forms of insemination (which are often performed without the goal of pregnancy)? I don't see why this distinction can't be seen as legally relevant, to the point of killing slippery-slope arguments.
1.4.2008 7:17pm
rlb:
I've said it before, and I'll say it again: a man should be able to avoid liability for the support his natural children under one condition: the assumption of a father's responsibility (i.e., adoption) by another man.
1.4.2008 7:19pm
r78:
Interesting post - thank you.
1.4.2008 7:37pm
jim47:
I agree with Avatar, the easiest bright line is artificial vs. normal insemination. It is a thing that clearly did or did not happen, and it is not too onerous of a burden to simply shift your behavior to produce the correct legal outcome.
1.4.2008 7:54pm
Bruce Hayden (mail) (www):
This is very worrisome to me. There has been a trend to find paternity in order to order child support. The deck seems more and more stacked against men in this area, with women having almost full control over whether a child is born. It is easy to say that if the guy has sex with the woman, then he should be willing to pay for any resulting kids. But sex is natural, driven by hormones, and even using a condom is not enough to keep from getting hit with child support (or, indeed, neither is not being the biological father).

So, this one time, justice was done. The woman lied, and was poised to get away with it, as usual, on the basis of "for the good of the child".
1.4.2008 8:00pm
Bruce Hayden (mail) (www):
I've said it before, and I'll say it again: a man should be able to avoid liability for the support his natural children under one condition: the assumption of a father's responsibility (i.e., adoption) by another man.
Which gives women a green light to lie and cheat in this area. As long as there are no consequences for women to do such in this area, then there is every reason to believe that they will continue to lie and cheat in order to get some guy to fund them.

Note, I am not suggesting that men should be exempt from their acts, but rather, that women should also be held accountable for theirs. If she enticed him into sex or fathering a child by lying to him, then she too should be held accountable. If nothing is said, then caveat emptor. But where I would draw the line is where active fraud was committed by the woman. So, in my view, the woman who uses the sperm from a discarded condom to get pregnant shouldn't benefit from her actions, and neither should the woman who promises a sperm donor that he he won't be held to child support.
1.4.2008 8:07pm
A. Zarkov (mail):
Russell:

You have provided an excellent discourse on the issues attending artificial insemination. Our government has made woman supreme in these cases because she gets to decide if she wants to be a parent, but the father doesn’t. I also find it strange that while a woman can’t contract away the child’s right to support, she can terminate its life.

In my opinion any man who donates sperm is extremely foolish unless he’s prepared to take on at least the financial obligations of fatherhood. Now Michael Crichton’s latest novel Next explores some of the potential legal problems an anonymous sperm donor can get into. In a subplot a medical student donates sperm. More than 20 years later his adult genetic daughter manages to identify him an threatens to sue the doctor for passing along some bad genes. It seems the good doctor was aware that he had a genetic predisposition towards substance addiction and abuse as medical student, yet he recklessly donated sperm for money. His attorney advised him to settle.
1.4.2008 8:12pm
Actual (mail):

The usual response to all of these questions is that the woman has no right to waive child support because this right belongs not to her but to the child.


Wouldn't this undermine any justification for abortion. i.e. the woman has no right to kill the child because this right belongs not to her but to the child ?
1.4.2008 8:14pm
eric (mail):
I think the guy who gets hit with child support in this situation should file an intentional infliction of emotional distress claim against the woman. It is worth a shot.
1.4.2008 8:16pm
John (mail):
I don't see how it is fair to saddle the guy with child support if he has no say in whether to abort the pregnancy.

The principle which gives the mother exclusive control over the fetus leads, I should think, to exclusive responsibility for it--absent agreement by some one else, such as through marriage, to assume that responsibility as well.
1.4.2008 8:24pm
Hayek (mail):
Why shouldn't the rule be that unborn children are conclusively bound by the mother's contractual agreements that led to the child's conception for all purposes, except that there can be no waiver of child support obligations of a father-by-sexual-intercourse (is there a term of art for this type of father?)?

Mothers are already permitted to make life and death decisions for unborn children while fathers are not.

The reason for the carve out is to encourage social parentage by fathers of children born via sexual relationships and to discourage sexual relationships between men and women that don't intend to be social parents to the potential offspring. Certainly some sociologists can explain the merits of this system better than me.
1.4.2008 8:42pm
scooby (mail):
Wouldn't this undermine any justification for abortion. i.e. the woman has no right to kill the child because this right belongs not to her but to the child ?

It's not a child, and therefore has no rights, until passage through birth canal / Cesarean section / magic pixie dust makes it one.
1.4.2008 8:47pm
Hayek (mail):
...and while bankruptcy law is well-suited to balancing the competing interests of creditors, debtors, and efficient distribution of assets, I am not convinced that it is so well-suited for balancing the competing human interests at play in these type of family law issues.
1.4.2008 8:50pm
jim47:
The whole idea that because a woman can abort a pregnancy, she thus meaningfully has a choice over whether to bear a child seems fallacious to me. Even if we suppose a world where abortion is always legal and 100% of people consider it moral, there are still health issues to abortion. Abortion can in some cases cause infertility, depression, etc. Sure, not in most cases, but we aren't going to know who will have those risks at the time of conception. Seems like it is a better rule to assume that the woman doesn't have control over bearing the child. And once a woman carries a child for 9 months it seems a little unfair to say "give it up for adoption or get no help from the father."

In the case of artificial insemination, however, it seems more clear that the woman does have a meaningful choice. Meaningful enough that it seems reasonable that in some circumstances she may bear the sole responsibility to the child created.
1.4.2008 8:55pm
LongSufferingRaidersFan (mail):
Why should we assume that the child's interests automatically trump the adult's in all cases? I never understood this--you're the most important thing in the world and no sacrifice is too great for you between ages 9 months-one day to eighteen years, yet at eighteen years one day you can just drop dead for all anyone cares (and up to eight months twenty-nine days mommy can have your skull crushed at her whim). Destroying an adult man's life is every bit as problematic as depriving the child of a conniving harlot extra cash, it seems to me.
1.4.2008 9:17pm
Skyler (mail) (www):
The PA Supreme Court had the correct logic but the wrong conclusion. The man should be responsible for his genetic offspring, regardless of how they are created. And yes, no man in his right mind would be a sperm donor if it meant he had to give child support payments. The error of the court was in thinking that this result is a bad thing.
1.4.2008 9:19pm
Gregory Conen (mail):
@jim47:
But those assorted burdens can be valued, as they would for a tort if they were directly caused, and will often be less than the cost of child support.

And then there is the issue of fraud. From the blatent (impregnating yourself with discarded sperm, eg in a used condom), to subtle and unclear (false claims to have non-obvious contraception).

Regarding the problem with indemnification, that would only arise if the mother is non-custodial, though, right? Otherwise, she could just pay back the child support payments themselves.
1.4.2008 9:26pm
Steve2:
I just look at this as all the more reason why developing artificial gestation to follow in vitro fertilization would be a good thing. You donate some gametes once you hit puberty and then you get yourself sterilized, and pregnancy can join polio and smallpox on the eradicated diseases list. Better living through technology.
1.4.2008 9:39pm
subpatre (mail):
Support and paternity is the real judicial activism; where the courts just make stuff up as they go along. This is another fine example with no legal basis.
1.4.2008 9:56pm
BruceM (mail) (www):
The whole distinction lies between copulation and masturbation. When two people engage in sexual intercourse, they assume the risk of a child being born and connot waive that risk. When a man masturbates into a cup to donate sperm, he is not assuming the same risk. He's doing it solely out of the request by one party for the genetic material, not out of the desire for sexual gratification (he could masturbate at home into a sock in front of his computer rather than take the time to go to a clinic and masturbate in a creepy setting into a cup).

Clearly, a man who donates sperm under certain conditions is in a different position than a man who engages in sexual intercourse with a woman. If a woman implants sperm into herself in order to get pregnant, she does so intentionally, with the knowledge that a child will result. So she is in a position to know whether she can financially support the child prior to the artificial insemination. For her to come back later on and demand child support is clearly disingenuous, as she intentionally impregnated herself.
1.4.2008 10:02pm
James Hare (mail):
LongSufferingRaidersFan:

What I love is that not only does the current child support law overwhelmingly favor the mother at the expense of the father, it does nothing to foster the social relationship of fatherhood. I've seen my 7-year-old daughter less than 10 times in her entire life. I was not present at her birth -- I didn't even hear about it for several weeks. I've not met any of her teachers -- her mother has not wanted me involved. She has not met her grandparents (in fact, she's been told that her mother's boyfriend's parents are her grandparents). Her mother lives on two salaries while I'm forced almost to bankruptcy on my one.

And there is absolutely no reason for her to change a thing. She gets free money and free healthcare and gets the privilege of rubbing my face in it. She gets to do whatever the heck she wants (including expensive overseas trips) and I have a wrecked life of constant work, no credit and almost 1/3 of my paychecks going to support a daughter I have only two (old) photographs of to really feel any connection to.

I love my daughter. I'd love to do more for her--but I don't believe fatherhood is simply something that should only be about money. On top of that, it's cruel as hell that the expenses her mother incurs for child care are tax-deductible, but mine are not. Several federal agencies are statutorily prohibited from hiring folks with even the smallest arrears in child support.

Child support should not be about tearing fathers down, but it is. Child support should not be about making the only relationship non-custodial parents have with their children is financial, but it does. If you're trying to help society, do more to make sure a child has both parents -- not that one parent is punished for the others' decisions. Obviously, this case isn't about someone with my situation; however, it points to the obvious problems and inequities in the current system. The worst part is that the people administering support see non-custodial fathers as the enemy. They are consistently rude and seem to revel in making threats (my favorite is the "pay or we'll take your drivers' license away" --- a wonderful way to scare someone, but not exactly good for a child because you're denying income and the opportunity to see a parent).

I wasn't around for the debates that created our current system. I wish I had been. The current system is unnecessarily punitive towards men and predicated on inequality. It equates parenting with finances only and does nothing to ensure a social relationship. By harming the father financially, it hurts his chances of using the courts to get any fairness. Worst of all, it does not ensure that every child is supported. Support is only guaranteed when the father can be determined, which is not always the case (I can think of two teenage mothers I knew who had no idea who the father was --- as a result, their families bore the costs of the child).

But of course those of under the system's boot don't have a particularly good reputation. Drop one mention of "deadbeat dads" and the whole world stops paying attention. What sucks is those of us who are working our asses off to pay the obligation and still have to deal with that stigma.

What really sucks is having to ask permission to give my daughter a Christmas gift. What really sucks is never having been to a birthday party. What really really sucks is hearing her ask "Why is last name the same as mine?" and hearing her mother say "Lots of people share last names."
1.4.2008 10:05pm
Daniel San:
In essence, immunizing the donor from child support makes sperm donation possible. Otherwise, the sperm donor is not a donor but a father. The only option would be surrender of parental rights then adoption.

Courts tend to be very hesitant to terminate parental rights without an adoptive parent in the wings. Perhaps any statute or policy protecting donors (anonymous or otherwise) should also reflect the policy of ensuring that the child is likely to be supported.
1.4.2008 10:17pm
Bender (mail):
I reccomend that anyone reading this post consider reading George Gilder's SEXUAL SUICIDE. Gilder wrote this book in the 1970s. He nearly perfectly predicts the disastrous state of marriage, family, and child-rearing in this country. At the time liberals regarded his predictions as lunatic fantasies. They've actually turned out to be rather conservative. His book will provide a useful understanding of the issues raised here.
1.4.2008 10:55pm
A. Zarkov (mail):
BruceM:

That’s all quite logical, but can’t overcome the legal and political axiom that a child has an inherent right of support from its parents. Another axiom says we can’t “punish” children for the actions of their parents. Ergo a genetic father is out of luck unless the mother has a higher income or can find someone else to support the child. It doesn’t matter how he became the genetic father. No amount of fraud on the part of a woman can overcome the child’s right to support. If she lies about being sterile, tough luck—pay up. Moreover not only does the child have the right to get supported, it must be supported to a degree consistent with the father’s station in life. As a practical matter, this means a rich man must pay a lot, far beyond the basic necessities. Of course some state laws carve out an exception for sperm donors based on your sound reasoning. But even anonymous donors run the risk that someday they will find themselves getting sued for child support anyway.

The idea of not “punishing” child for the acts of their parents even extends to actions like illegal immigration. If parents bring in a young child illegally, then we are not supposed to “punish” the child by ever deporting it.
1.4.2008 10:55pm
A. Zarkov (mail):
James Hare:

I feel for you. Years ago I did free work for men undergoing custody problems like yours. I saw a lot of very ugly stuff. I saw courts refuse to punish women for outright perjury. Not only that, the false evidence was still used to determine support. I’ve seen men have 90% of their income taken away. One guy quit his job (why work for 10%) and then end up in jail. I know of one case where a man brought all his cancelled checks to court to prove he paid child support. Didn’t help. Since he was supposed to mail the checks to the DA, the checks he sent directly to the mother got deemed a gift outside of the child support obligation. But I know of one case where the father got majority custody, and collected child support from a mother with a lower salary. The mother was not a criminal or a drug addict, or abusive. Sometimes if you are clever enough you can win, but don’t count on it.
1.4.2008 11:08pm
Pliny, the Elder (mail):
The Indiana Supreme Court simply ignored most of these issues in Straub v. Todd, 645 N.E.2d 597 (Ind. 1994). In that case the Court awarded child support (and continued custody) to a woman who had traded (or attempted to trade as it turned out) the child's support for sex. The woman's attorney, who claimed to be representing the child, was not even asked about the fitness of such a scumbag to have custody.
1.4.2008 11:18pm
TomHynes (mail):
Why not go back to having marriage as the bright line? If you are married, you assume the rights and duties of raising children. Otherwise, you don't have to support bastard children.
1.4.2008 11:28pm
nevins (mail):
From the original post

The usual response to all of these questions is that the woman has no right to waive child support because this right belongs not to her but to the child.

This leads to the logical problem that if it were not for the waiving of the child's right to support, then the child would not exist. This presumes that for the adult parties that no contract would be consumated without such waiver. The only way for the child to exist would be for the waiver. So the child can either choose to exist without support, or choose support, but retroactively give up his right to exist by invalidating the contract that brought about his existance.
1.4.2008 11:34pm
AK (mail):
BruceM:

I don't see a distinction between copulation and masturbation. Why should the manner in which sperm unites with egg matter? If we're willing to allow a man and a woman to create life and to enter into an enforcable contract regarding the support of that life, why should it matter whether that life was created in a laboratory or the old fashioned way?

And why shouldn't we enforce contracts that cover unintentionally created life? What if a woman wants to have sex with a man, but he's hesitant because he doesn't want to risk impregnating her. Shouldn't they be able to draw up a contract in which he's off the hook if she gets pregnant? If not, we a get an absurd result: women can relieve men of support for their children as long as their pregnancy was intended.
1.4.2008 11:40pm
Gene (mail):
One problem with the nonwaiver argument in favor of blanket child support obligations is the injustice in requiring male rape victims to pay for children conceived by rape.
Of course it makes perfect sense if one accepts the fiction that the child has an inherent right to economic support independent of the mother, but the "right" to economic support is only a legal fiction and always works one way. Could the father by law be required to donate organs or blood to the child or be forced to work as a slave ten hours a day on a state plantation in order to fulfil his obligations? And if the child has an independent right to economic support, there is an equally strong argument for recognizing a "right" to state enforcement of the supposed right against the mother.
Of course, a brightline rule that child support obligations should ffollow biological paternity is at least consistent, but courts have often been willing to turn the argument on its head when husbands are forced to pay child support to their former adulterous wives.
Some womens' rights activists even argues that constitutional concerns might bar lawsuits for fraud
"...Second, the private nature of the conduct involved in these cases makes judicial intervention of any kind undesirable. The
Due Process Clause of the Constitution
protects individuals against unwarranted intrusions into decisions about consensual sexual relationships and procreation. Recognizing a claim under either
an equal protection or fraud theory might independently contravene those rights by giving courts license to intrude into parties' reproductive behavior
and decisionmaking."
1.5.2008 12:23am
Mike G in Corvallis (mail):
Perhaps another way to think about the problem posed by the case is that the woman cannot contract away the children’s right to the support of their genetic father, but there is no reason why she should not be able to indemnify the man from any such claims.

If we're concerned with the child's rights, why the heck are the mother's wishes controlling?

Turn it around: If a woman claims that a sperm donor has parental responsibilities, then we can avoid most of the problems identified above by a presumption that assertion of this claim automatically identifies the mother as an unfit parent. Award sole custody of the child to the sperm donor father, and make the mother responsible for 50 percent of the child's support. Seems at least as fair as the other way around, doesn't it?
1.5.2008 12:29am
k parker (mail):
Bender,

I second your recommendation; however the book was reissued in 1992 under the title Men and Marriage -- Amazon appears to have quite a few used copies available, plus it's still in print.
1.5.2008 12:50am
Gene (mail):

if we suppose a world where abortion is always legal and 100% of people consider it moral, there are still health issues to abortion. Abortion can in some
cases cause infertility, depression, etc. Sure, not in most cases, but we aren't going to know who will have those risks at the time of conception. Seems
like it is a better rule to assume that the woman doesn't have control over bearing the child. And once a woman carries a child for 9 months it seems a
little unfair to say "give it up for adoption or get no help from the father."

Why is it unfair? The right to abortion is very strong in the first trimester, and we are often told by pro choice activists that abortion is safe enough to be a constitutional right, only to be interfered with minimally by the government. If the unfairness boils downs to forcing most women to make choices with moral implications, the law should (at least not in most cases) operate on the assumption that
women have a right to freedom from moral responsibility.
Is abortion meant to protect a right to abort for any reason? Or is the broad constitutional right prior to viability only a prophylactic rule necessary to free women from proving that bringing the child to term is a life or health hazard?
One day, we may truly find out, whentechnology permits safe extraction and growing of an aborted fetus outside the woman's body. Should the woman then have a right to destroy an aborted fetus capable of surviving on artificial life support because she basically doesn't want children? I need no crystal ball to predict what most pro choice feminists will say.
From a public policy standpoint the PA court got it right, but it would have been much better if the court had simply said yes to the mother and left it to the legislature to sort it out.
1.5.2008 12:55am
American Psikhushka (mail) (www):
Interesting case. The father consented to have his sperm used. (Otherwise it would be fraud.) I assume he also received notice in the case. (Otherwise that would be more fraud.)

I wonder what would happen in a case where a woman stold sperm from a used condom or medical sample and impregnated herself without the father's consent? As I recall there is at least one case, from the Chicago area I think, where something like this occurred but I forget what happened. Anyone know about any other precedents? Anyone care to speculate about cases of stolen sperm?
1.5.2008 1:26am
American Psikhushka (mail) (www):
Gene-

"...Second, the private nature of the conduct involved in these cases makes judicial intervention of any kind undesirable. The Due Process Clause of the Constitution
protects individuals against unwarranted intrusions into decisions about consensual sexual relationships and procreation. Recognizing a claim under either
an equal protection or fraud theory might independently contravene those rights by giving courts license to intrude into parties' reproductive behavior and decisionmaking."


That's funny, the courts have never had a problem delving into the nature of this "private conduct" at the drop of a hat - or false accusation - in just about any other situation you can think of. The nerve of these men, thinking that the Constitution is the supreme law of the land and that it might afford them equal rights. There are several other problems with that article, but those passages weren't quoted.

Men are already second class citizens in much of the legal system, and on their way to third class. What I can't understand is why most are putting up with it. I guess some of the older generations foolishly idealize women and never experienced the vicious misandry (or are jealous of youth so they encourage it). Once they retire and move on maybe men will stop tolerating it.
1.5.2008 2:23am
tvk:
Good analysis. The utilitarian argument--that a child would prefer his parents to agree (enforceably) to waive child support over nonexistence--is a powerful one, and one that courts have done little to address outside the sperm donation context. The sperm donation limit would appear to provide little logical basis for distinction, except that it is more intuitive.

I wonder, though, if economic price discrimination might provide at least the beginning of an explaination. Let us assume that the best outcome from a social policy is for the child both to exist and be entitled to child support. How to achieve that? Make sure that men are ignorant about their child support liability! And it would seem that outside of the sperm donation context, most men are indeed highly ignorant about the magnitude of the risk of their child support obligation. Very few men, before it is too late, are likely to realize that child support can be a significant chunk of their income, is basically non-waivable, and is enforced by the most draconian measures available to the modern state.

So we end up with a regime that essentially exploits male ignorance. The men who find out, too late, that they have been played for suckers obviously feel exploited; but they have zero power to do anything about it. The men who are not ingorant--sperm donars who are likely to do their homework beforehand--get a pass. While it may not be the moral system, they can be no denying its efficiency nor any prospect of changing it until men realize the real burden of child support ex ante.
1.5.2008 2:40am
Gene (mail):
American Psikhushka (

I wonder what would happen in a case where a woman stold sperm from a used condom or medical sample

and impregnated herself without the father's consent?
As I recall there is at least one case, from the Chicago area I think, where something like this

occurred but I forget what happened. Anyone know about
any other precedents? Anyone care to speculate about cases of stolen sperm?

There was mention of an Illinois case, but I couldn't find it. However, courts have as far I know held

that the fact of statutory rape is irrelevant to the validity of child support obligations.
For instance, in S.F. v. STATE EX REL. T.M., 695 So.2d 1186 (Ala.Civ.App. 1996)the Alabama Court of

Civil Appeals summarily disposed of the argument that a victim of rape was ipso facto relieved of a

duty to pay child support "...We find S. F.'s argument to be without merit. The child is an
innocent party, and it is the child's interests and welfare
that we look to under the Alabama Uniform Parentage Act. The
purpose of this act is to provide for the general welfare of
the child; any wrongful conduct on the part of the mother
should not alter the father's duty to provide support for the
child. We note that the father could have filed criminal
charges against the mother. See §
13A-6-65,
Ala. Code 1975." And the court

That's funny, the courts have never had a problem delving into the nature of this "private conduct" at the drop of a hat - or false accusation - in just
about any other situation you can think of. The nerve of these men, thinking that the Constitution is the supreme law of the land and that it might afford
them equal rights. There are several other problems with that article, but those passages weren't quoted.

Yes, my thought. One might argue that any statutory classification triggering child support obligations, or laws against statutory rape were equally constitutionally suspect because a judicial determination of the facts would necessarily intrude into the private sphere protected by the Constitution. Either privacy is good enough to shield both men and women from courts inquiring into their privacy, in which case women shouldn't get away with tort actions alleging nonconsentual sexual intercourse proven by a preponderance of evidence standard, or men should at least have an equal cause of action against deceiving women. Artificial reproduction may reframe the debate, since the traditional discrimination in favor of women in the child support context can only be justified by the cumulative physical burden of carrying the child to term. If every man got a vasectomy, women would have to bargain for the only reproductive commodody men have and women don't.
But the distinction between artificial and natural insemination, as appealing it is from a normative theory of consent, makes little sense when the male donor is on notice that reproduction is a likely if not certain outcome of his voluntary action. After all, he has more knowledge of and influence over participation in the elective procedure than did the rape victims in S.F and other cases.
Most women I know want to have their cake and eat it. The problem is not women demanding equality, but rather that men are to cavalier to insist that equality is more than a one way street.
1.5.2008 3:45am
Warmongering Lunatic:
If we want to take a truly consistent position on support from noncustodial biological parents being the right of the child, we'd hold liable not just sperm donors, or egg donors, but also genetic parents who give up their children through adoption. If it's the right of the child, why allow any action by adults negate it?

The other consistent position is holding the custodial parent(s) solely responsible for the support of the child, as a condition of their custody. The custodial parent(s) (not the child) would then have a right to assistance in that support from a noncustodial party if and only if an agreement with that party to provide such support existed (for example, a marriage at the time of the birth, or an adoption of the child after birth).
1.5.2008 3:50am
BruceM (mail) (www):
A. Zarkov:

I think that "the legal and political axiom that a child has an inherent right of support from its parents" logically does not apply to certain circumstances beyond sexual intercourse. When a female intentionally causes herself to be artificially inseminated with the intent of having a child as a single parent, with a clear understanding that the sperm donor (anonymous or not) will not be a participatory parent, she is guaranteeing the child that she will be its sole supporter. Why should she not be held to that guarantee? She made the decision knowingly, voluntarily, and with the knowledge that she would be the child's sole supporter. Nobody forced her to become pregnant, nor did she share the risk of pregnancy with a male.

I'm used to policies being created and/or stretched to illogical and absurd results "for the children" but there has to be a point where we say "no" to protecting the supposed interests of children. Especially when it's clearly against public policy (as the Penn. S.Ct. pointed out in its opinion).
1.5.2008 4:52am
BruceM (mail) (www):
AK:

I don't see a distinction between copulation and masturbation. Why should the manner in which sperm unites with egg matter? If we're willing to allow a man and a woman to create life and to enter into an enforcable contract regarding the support of that life, why should it matter whether that life was created in a laboratory or the old fashioned way?

And why shouldn't we enforce contracts that cover unintentionally created life? What if a woman wants to have sex with a man, but he's hesitant because he doesn't want to risk impregnating her.

Because if he has sex with her, he's knowingly taking the risk that a child might result (plus, he can minimize that risk by using a condom). Pregnancy is a known risk of sex, minimizable but not entirely negatable. That's why sex is different than masturbation, re: your first question.
1.5.2008 5:04am
mea:
Wow, the comments on this thread are amazing. Here is a thought: The law is written to take into account certain sociological and biological facts currently prevalent in our society. Women are at MUCH higher risk of sexual violence that leads to pregnancy then men. Male rape can happen, and all sexual violence should be taken seriously but in discussions of parental rights and especially in a discussion involving (even tangentially) abortion rights, throwing in male rape and weird unusual behavior by harlots stealing sperm is a red herring because it really is the weird outlier that sticks out because it is so unusual and rare. The VAST MAJORITY of pregnancies occur because the men were willing and enthusiastic participants. The law should be written with a firm sense of that reality. After the sex is over the man can and frequently does walk away. Once pregnant, a woman might or might not have choices about whether to undergo the SIGNIFICANT HEALTH RISKS to bring the zygote to term (example: my friend almost died from preclampsyia) and pregnancy has serious and lasting health consequences. Hey men, do you want your anus cut with a knife to prevent it tearingin childbirth? I am equally reluctant to have my sensitive parts cut with a knife. But if not sliced open during vaginal childbirth, a woman can find herself incontinent for the rest of her life. Sound like a fun medical procedure? There are lots of nasty medical procedures and health risks of pregnancy. And pregnancy is significantly higher risk of death than abortion.

The woman who has timely access to medical care (dont be in South Dakota or rural Mississipi!) can terminate the pregnancy. And men, you are entitled to your faith-based beliefs on the origin of life but it ain't a "child" entitled by law to over-ride my rights to make health decisions about my own body when it is a parasite in my body. If you can extract the zygote (or whatever stage it has reached) and raise it in artifical wombs, more power to you -- I'd be the first customer. But the law recognizes that in the world we currently have women who by choice or lack of options carry a baby to term tend to bond with that baby. So a significant number - dare I say the vast majority of women -- who end up mothers have bonded with a baby that was conceived without tricking the man into anything.

A man who says he was "tricked" by a women claiming she was sterile is a man who is failing to take responsibility for his own sexual behavior. Use a condom (and take it with you if you are paranoid) or get a vasectomy, but you have responsibility for where you put your sperm. I dont sleep around but if I did I certainly would not trust a man to tell me that he had a vasectomy -- buyer beware in the sexual marketplace, and bring your own birth control if you don't want to be a father. The law recognizes this fact, and is written to create incentives for responsible behavior.

Do injustices occur in child custody battles? Sure, on all sides -- like in every single area of law -- but in aggregate women are far more likely to suffer far greater financial consequences from the birth of a child then men. Those harsh nasty child support laws are gender neutral and can apply to woemn. And the law is so aggressive in collecting child support because of the huge numbers of men who have been and are happy to have sex but don't want to support the resulting children (and because of welfare reform making the government more interested in pursuing the men for money than encouraging parental relationships -- I agree with the men who think the law needs to support parental relationships when the parents are capable of healthy parent-child interactions).

The strong desire of certain folks on this thread to call women harlets and conniving is certainly...traditional. But it is starting the analysis from a place that tends to overlook the fact that the law must take into account the huge numbers of normal situations that do not involve such straw women. I very much appreciate the comments on the legal question that leave misogyny out of the discussion. Sensible lines can be drawn between sexual encounters and sperm donation and it is good to see judges doing their jobs in drawing those lines. I agree that the woman who contracted for a sperm donor knew what she was getting into -- as long as the man did not ALSO breach his agreement and start trying to get legal visitation rights, etc.
1.5.2008 5:07am
Gene (mail):

Wow, the comments on this thread are amazing. Here is a thought: The law is written to take into account certain sociological and biological facts currently
prevalent in our society. Women are at MUCH higher risk of sexual violence that leads to pregnancy then men. Male rape can happen, and all sexual violence
should be taken seriously but in discussions of parental rights and especially in a discussion involving (even tangentially) abortion rights, throwing
in male rape and weird unusual behavior by harlots stealing sperm is a red herring because it really is the weird outlier that sticks out because it is
so unusual and rare.

Pointing out behavior, which is uncommon but stille within the scope of what the law reaches as a matter of public policy, is not a red herring. You may think that these cases are unimportant, and granted, cumulatively speaking, they are. But a wrong doesn't make a right. Statutory rape is not coterminous with sexual violence and arguing that these cases are outliers is of no difference to the actual male victims. Perhaps correcting historical wrongs done to women as a group is more important than individual justice, but glossing over the distinction between women who for a number of reasons really can't get an abortion or bring the child up for adoption, and women who simply want children is the problem in a nutshell. Why should every man regardless of consent, duress or deception be required to pay for the choice of the woman?
If we could save the fetus during the first trimester and put it on life support, should the woman be permitted to destroy it as a matter of convenience?
If the law essentially stipulated that, save for cases where abortion was a health risk, child support obligations should only be imposed where the parties were in a formal relationship, both the putative parents would be on notice and have to internalize the likelihood of conception before thinking of sex.
1.5.2008 5:49am
A. Zarkov (mail):
mea:

“Do injustices occur in child custody battles? Sure, on all sides -- like in every single area of law …”

This sentence applies some kind of parity in the frequency of injustices, which is a gross distortion of reality. The injustices that occur in custody battles overwhelming occur against men.

“ … but in aggregate women are far more likely to suffer far greater financial consequences from the birth of a child then men.”

That has nothing to do with the injustices in custody battles.

“Those harsh nasty child support laws are gender neutral and can apply to women (sic).”

While the laws are stated in gender-neutral language, the application of those laws is a different matter. Judges have extremely wide latitude in how they apply those laws, and they do so in anything but a gender-neutral manner.
1.5.2008 7:21am
David M. Nieporent (www):
What's bizarre is the weird legal fiction that child support is a "right" of the child, when it clearly isn't.

Suppose that the parents are married, and the father is a hedge fund manager with millions of dollars. The couple is eccentric, though, and lives in a one bedroom apartment, sends the kid to public school, buys the kid nothing more than the bare minimum food and clothing to keep it healthy, etc. Can the child sue to get more money out of the father? Does he have some sort of "right" to a more lavish lifestyle merely because the father makes lots of money? If the father quits his hedge fund job to work retail at the mall, can the child sue to force the father to earn more money under penalty of contempt of court? No.

Any "right" the child has to do these things is contingent upon the parents separating and the mother making the decision to sue on behalf of the child for additional child support. So if the mother can consent on behalf of the child when the parents are married, why can't she do so when they're not?
1.5.2008 7:25am
liberty (mail) (www):

WARNER
According to Swinney v. Neubert, Swinney,
who was also a private sperm donor, was
allowed visitation rights as long as he
came to terms with the hours set forth by
the parents. So, if we're sticking to
past precedent, Mr. Latimer wasn't
stalking— he was clearly within his
rights to ask for visitation.


PROFESSOR DONQVAN
But Swinney was a one-time sperm donor,
and in our case, the defendant was a
habitual sperm donor, who also happens to
be harassing the parents in his quest for
visitation.

WARNER
But, without this man's sperm —the
child in question would not exist.

He grins and looks around as the class murmurs their
agreement.

PROFESSOR DONOVAN
Now you're thinking like a lawyer.


Elle tentatively raises her hand.

PROFESSOR DONOVAN (CONT'D)
Ms. Woods?


ELLE
Although Mr. Huntington makes an
excellent point, I have to wonder if the
defendant kept a thorough record of each
sperm emission made throughout his life?

PROFESSOR DONOVAN
(bemused)
Interesting. Why do you ask?

ELLE
Well, unless the defendant attempted to
contact every single one-night- stand to
determine if a child resulted in those
unions — then he has no parental claim
whatsoever over this child. Why this
sperm? Why now?

ELLE (CONT'D)
(continuing)
For that matter, all masturbatory
emissions where his sperm was clearly not
seeking an egg could be termed reckless
abandonment.

PROFESSOR DONOVAN
I believe you've just won your case.


- Legally Blonde
1.5.2008 8:59am
Joe Bingham (mail):
Michael Crichton talks about this in Next. Fun book.
1.5.2008 9:05am
NI:
I found the following in an article posted at supportobligations.com:

Consider the following fact situation that is currently before the trial court in Kansas: Two couples go to the local lover's lane in one car, one couple in the front seat, and one couple in the back seat. They discover that among them all, they have only one condom. The couple in the back seat engage in intercourse using the condom, and then give the condom to the couple in the front seat. The gentleman in the front seat, not wanting to spread disease, turns the condom inside out. The couple in the front seat then engage in intercourse. One month later, the lady in the front seat discovers she is pregnant. After the birth of the child, DNA tests reveal that the father is the gentleman from the back seat. Clearly, the gentleman in the front seat engaged in an intimate sexual act with the mother of the child. Yet, it is the sperm from the gentleman in the back seat who impregnated the mother. Who is on the hook for child support? Should the court impose a "joint enterprise" theory of liability? Or is the gentleman in the back seat "strictly liable" because it was his sperm?
1.5.2008 9:28am
newscaper (mail):
I heartily endorse the idea that marriage should MEAN something, as a great clarifier of muddy issues such as these, particularly since the woman has total control over whether she has the baby or not.

I'd be willing, for the purposes of arguing child support, to count being engaged, or cohabiting, as equivalent to being "married". An otherwise long running sexual relationship as a known "couple" short of those? Trickier. But a one night stand or quick fling or revolving door? Nope.

That said, I think seriously strong social pressure (even backed by a public deadbeat dad list?) should lean on the father to provide support, even though he perhaps has no strict legal obligation to do so. Perhaps the old cliche of a shotgun wedding wasn't quite so barbaric after all.

[BTW The above is why I consider myself a libertarian conservative -- just because certain things shouldn't be a matter of law doesn't mean they are socially harmless -- there is still a place for shame, etc as a way of reducing sub-legal social ills.]

Of course, contracts such as the sperm donor -- anonymous or not -- should put one in the clear.

Feminists really need to piss or get off the pot on the subject of a woman's rights and responsibilities -- that 2nd part always seems to be ignored.

One more tangent on the marriage as a practical *functional* institution thing: it clearly relates to the civil gay marriage issue. Fundamentally, marriage is about child support and inheritance (by means of / in exchange for a publicly made promise of sexual exclusivity) - IOW about raising children, not spousal benefits in their own right. It's not, in the functional sense, about making everyone else recognize and approve of your "love".
As someone put it once about het vs gay marriage: barring infertility outliers, straight people have to resort to extraordinary measures to avoid children, whereas gay couples have to use eaxtraordinary measures to have children. The stakes in the game are fundamentally different. Using the functional argument, one may as well say that licensing gay marriage is almost as silly as granting blind people driver's licenses in the name of equality. I don't think this is a definitive, final argument against gay marriage (I'm open to continued social and technological change), but I think it is a very strong one.

That said, I don't mind some form of civil union to simplify benefit sharing for the couple.
1.5.2008 10:39am
newscaper (mail):
I heartily endorse the idea that marriage should MEAN something, as a great clarifier of muddy issues such as these, particularly since the woman has total control over whether she has the baby or not.

I'd be willing, for the purposes of arguing child support, to count being engaged, or cohabiting, as equivalent to being "married". An otherwise long running sexual relationship as a known "couple" short of those? Trickier. But a one night stand or quick fling or revolving door? Nope.

That said, I think seriously strong social pressure (even backed by a public deadbeat dad list?) should lean on the father to provide support, even though he perhaps has no strict legal obligation to do so. Perhaps the old cliche of a shotgun wedding wasn't quite so barbaric after all.

[BTW The above is why I consider myself a libertarian conservative -- just because certain things shouldn't be a matter of law doesn't mean they are socially harmless -- there is still a place for shame, etc as a way of reducing sub-legal social ills.]

Of course, contracts such as the sperm donor -- anonymous or not -- should put one in the clear.

Feminists really need to piss or get off the pot on the subject of a woman's rights and responsibilities -- that 2nd part always seems to be ignored.

One more tangent on the marriage as a practical *functional* institution thing: it clearly relates to the civil gay marriage issue. Fundamentally, marriage is about child support and inheritance (by means of / in exchange for a publicly made promise of sexual exclusivity) - IOW about raising children, not spousal benefits in their own right. It's not, in the functional sense, about making everyone else recognize and approve of your "love".
As someone put it once about het vs gay marriage: barring infertility outliers, straight people have to resort to extraordinary measures to avoid children, whereas gay couples have to use eaxtraordinary measures to have children. The stakes in the game are fundamentally different. Using the functional argument, one may as well say that licensing gay marriage is almost as silly as granting blind people driver's licenses in the name of equality. I don't think this is a definitive, final argument against gay marriage (I'm open to continued social and technological change), but I think it is a very strong one.

That said, I don't mind some form of civil union to simplify benefit sharing for the couple.
1.5.2008 10:39am
newscaper (mail):
Ops - sorry for the double post. I got a "forbidden" on submit and resubmitted.
1.5.2008 10:41am
k parker (mail):
mea,

Even granting everything you say, if these outliers are easily distinguished then shouldn't we distinguish them?
1.5.2008 10:49am
Waldensian (mail):

When two people engage in sexual intercourse, they assume the risk of a child being born and cannot waive that risk.

There's one really big problem with the "assumption of risk" regime that currently is applied to child support -- i.e., the regime that generally results in men paying child support for their offspring, period, no matter what the circumstances of their conception.

True, in most cases, it's really the only way to run the railroad. There's a kid here, after all.

But, and it's a big but: Under current law, in almost all cases, men "assume the risk" of intentional misconduct by the mother. A woman can lie about using contraception, she can lie about her intentions if she accidentally becomes pregnant, she can even become pregnant by stealing sperm from a used condom. And it just doesn't matter: the DNA test establishes paternity, and the man pays. In some states, the woman gets the cash and isn't even required to provide an accounting to show that child support was actually used for the benefit of the child. Next case.

Contraceptive fraud is the perfect crime. And it really does happen.

It's important to ponder just how strange this whole situation is. I am aware of no other area of the law where someone is said to "assume the risk" of another adult's intentional misconduct. In general, you could say that when I walk down the street I assume the risk that a meteorite will fall on me. But I can't really be said to assume the risk that somebody will intentionally chuck a rock at my head, can I?

One could argue that I should have worn a helmet when I walked down the street, so to speak. But the helmet won't stop all the injuries. And what does that suggestion say, as a group, about the people who are chucking rocks? Not very pretty.
1.5.2008 11:05am
A.W. (mail):
Here's the difference between "sperm donors" and sex partners. The sex partners... have had sex. And that makes all the difference in the world. One thought, for instance, is that by attaching unwaivable liability you might introduce a sense of responsibility into what could be an irresponsible act. By contrast, it is assumed that if you are in a "sperm donor" relationship you have thought it all out.
1.5.2008 11:56am
Pub Editor:
Ann Althouse blogged about a similar case back in November. And here's the New York Post story about that case.

Waldensian: you make some good points, but you should know that the Sixth Circuit rejected similar arguments in Dubay v. Wells, 06-2107 (6th Cir., Nov. 6, 2007).
1.5.2008 12:24pm
AK (mail):
Here's the difference between "sperm donors" and sex partners. The sex partners... have had sex. And that makes all the difference in the world.... By attaching unwaivable liability you might introduce a sense of responsibility into what could be an irresponsible act.

But in giving responsibility to the man, you're simultaneously removing responsibility from the woman. A woman is more likely to have sex if she knows that she's guaranteed to get support payments from the father.

Please explain the legal distinction between these two scenarios:

(1) Woman wants to be a single mother. She invites Man, a tall, fit, intelligent, healthy friend to ejaculate into a plastic cup. Woman and Man are permitted to waive Man's support obligation.

(2) Woman wants to be a single mother. She invites Man, a tall, fit, intelligent, healthy friend to ejaculate into her vulva. Woman and Man are not permitted to waive Man's support obligation.

it is assumed that if you are in a "sperm donor" relationship you have thought it all out.

Thought what out? That you don't want a child? Well neither does the guy just looking for casual sex.

Neigher a sperm donor nor a man looking for consequence-free sex want to be burdened by obligations to support children that result from their actions. The difference is that the sperm donor knows that his actions will result in a child. The guy looking for sex only knows that his actions might result in a child. So if you know that you're going to get a woman pregnant, you can escape child support, but if there's only a possibility that you might get her pregnant, you can't? How the hell does that make sense?
1.5.2008 12:41pm
Pub Editor:
A. Zarkov:

The idea of not “punishing” child for the acts of their parents even extends to actions like illegal immigration. If parents bring in a young child illegally, then we are not supposed to “punish” the child by ever deporting it.

Well, here's a Ninth Circuit decision where the court upholds an order to deport an illegal immigrant couple and their children, who were born in the U.S.

I often disagree with Judge Pregerson, but his dissent gives me pause:

Our government’s refusal to grant the children’s undocumented parents cancellation of removal tramples on the children’s substantive due process rights—rights our government routinely ignores. By denying undocumented parents cancellation of removal, our government effectively deports their United States citizen children and denies those children their birthrights.


(HT: Decision of the Day)
1.5.2008 1:03pm
mea:
To respond to k parker, yes, of course outliers should be distinguished. But AW hit it on the head in distinguishing between when conception occurs via sex and when it occurs thru sperm donor where the parties have rationally allocated and assumed the risk ahead of time (in, I am assuming, a written contract so that there is adequate proof of contemplation of consequences and knowing re-allocation of responsibility).

Waldensian argues "Under current law, in almost all cases, men "assume the risk" of intentional misconduct by the mother. A woman can lie about using contraception, she can lie about her intentions if she accidentally becomes pregnant, she can even become pregnant by stealing sperm from a used condom. And it just doesn't matter: the DNA test establishes paternity, and the man pays."

Mixing apples and oranges in that argument. First, if the true facts of the case are that the woman stole sperm from a used condom (eew) then the law should take that into account and I agree that it might be a very very good reason to change the default rules IN THAT INSTANCE to take into account all of the facts of that case. But there is a really strong issue of proof because how credible is that story? I mean how often are men really having their precious bodily fluids stolen out of the trash in such a fashion? If I were the judge in that case, and the facts did show that such a crazy thing had happened, I would be thinking that the risk of pregnancy shot up because of the behavior of the woman but I'd want to know if the man had sex with her earlier using that condom because in that case he did consent to some risk of pregnancy because contraceptive failures do happen. So unless the man was solitary in his actions that led to the discarded condom, then it is fair for the law to allocate some responsibility to the man for actions (sex using condom) that created a risk that a child would result from his actions. I would also be concerned about the welfare of the child: How competent is the woman to have custody of the child if she acts in such a manner? And if she is crazy then is there an alternative to dumping the child into the foster care system? So I'd be hoping that in a situation where precious bodily fluids are actually stolen that the law could take all the weird facts into account in assessing both custody and parental obligations.

But a woman stealing precious bodily fluids without knowledge of the man is an exotic and rare orange. The more usual case of the man feeling cheated and misled is the common red apple of both men and women saying a lot of things to get eachother into sexual relationships. Doesn't matter if the man or the woman lies about using contraception BOTH parties need to take independent responsibility for the use of contraceptive devices and BOTH parties need to take ownership of the fact that all contraceptive devices have incidents of failure. In case of contraceptive failure the woman ALWAYS is stuck with the consequences (miscarriage, abortion and childbirth all have potential for physical consequences even if no child results). The fact that in some cases she can and does have an abortion doesn't detract from the fact that in virtually any sexual encounter between heterosexuals there is a risk of pregnancy that could lead to a baby being born. If you don't like the potential consequences don't engage in the behavior. Because no one in our society is owed the right to sex involving more than masturbation. Sex involving two people always comes with some risks. Law is about allocating responsibility and it is perfectly fair for men to be on the hook for their share of the potential financial consequences of their sexual actions. Women via biology are always left facing the potential physical consequences. It is fair that both parties are held responsible for the financial consequences of raising a child.

What happens after payments are made, in terms of accounting for money spent, it a slightly different question from whether there is an obligation for both parents to financially support a child. I am sure that there are situations where there are real issues with the way the money is spent but if the custodial parent is providing shelter and food and clothing and all of the other myriad of expenses that come with children (like childcare if the custodial parent also works), then even without an accounting it is typically true that the custodial parent is spending a large amount of money to pay for the child's upbringing.

And to answer the front seat back seat hypothetical, I would argue that the guy in the front seat should be held responsible for child support payments because he engaged in the conduct that led to the pregnancy (placing sperm in a location where it can meet up with the egg via sexual relations). The fact that it wasn't his sperm (again, eew) isn't as relevant as his actions. But in real world cases the genetic test showing paternity is also a big fat arrow to past behavior.

Sperm donors that are not seeking parental rights are in a different category. The law should be applied so that sperm donors typically are completely off the hook financially.
1.5.2008 1:13pm
Ken Hahn (mail):
If child support is the right of the child why is it paid to the mother ( or in extremely rare circumstances to the father )? It should be paid to a third party charged with the welfare of the child or the receiving parent should be held responsible for theft or at least child neglect if ANY of the money is spent for any purpose other than the child. The custodial parent should be held to the same standards concerning the rights of the child as the noncustodial.
1.5.2008 1:18pm
John McGinnis (mail) (www):
The endgame here is the concept of parental rights being disposed of. Technology is making 'parentage' and its responsibilities too complex for courts to develop consistent case law. So the solution, hah, will be for the State to become the 'parent' in all cases. Then the State will just demand from all the genetic parties their pound of flesh. At that point we are no different from Russia circa 1950.

How Progressive!
1.5.2008 1:23pm
DaveHeal (mail):
@ NI: Do you have a link for that article you pulled the hypothetical from? I can't seem to find any results for 'supportobligations.com.'
1.5.2008 1:31pm
TruePath (aka logicnazi) (mail) (www):
Yup, the laws about child support pretty obviously lack any sound theoretical footing and this is pretty damn obvious.

First thought we need to separate several distinct issues.

<B>1) General gender unfairness inflicted by society (rape risk, increased male earnings etc...)</B>

The goal of any conversation of this form can never be to rectify all gender inequity. Men die sooner than women, some studies suggest men are on average more happy etc.. etc.. None of us has the slightest idea whether it is better off to be born as a man or a woman and even if we did no so what. <B>I mean should women get lesser sentences for murder if we suppose their lives are on average worse?</B> This is silly. It's emotional pandering to bring up arguments that demonstrate women should be treated more gently by the law in general and only apply them to an issue like child support just because they provoke strong passions in this context.

Don't get me wrong. I'm open to reasonable arguments that the tax code should either give women/mothers special tax breaks or other support based on a pure cost/benefit analysis for the kid's, the mother's or society's benefit but if this is your view you should say child support rules are unfair but the only solutions that are more fair are politically unpalatable.

<B>2) Child support after marriage and serious long term relationships</B>

Absent explicit written legal documents the the guy repudiates these obligations the child support is perfectly justified in this circumstance. Implicitly the guy is agreeing to take on these obligations by agreeing to the marriage or accepting the stand practices of dating. Optimally opt-out forms would be provided at the end of tax forms so suggesting to your s.o. to wave the child support expectation didn't signal severe distrust of them. Hell, maybe they should even give a tax deduction for it to discourage unwanted (by dad) babies or worse (but rare) babies created to trap the guy into the relationship.

I mean ultimately marriage really is primarily a contract about how to raise children and it just so happens that the unspoken contract for long term dating defaults to something similar.

<B>3) Children produced by one night stands or by explicit sperm donor agreements.</B>

Here I think there is no plausible case at all. Certainly there is no plausible grounds on which you can interpret the guy as having entered into some sort of contract to support the kid by this isolated act and <I>even if you thought the guy had then anytime the woman lied about birth control, agreed never to seek child support and etc.. it should void the child support obligation.</I>

In short I think a theoretically sound legal theory can explain the broad outlines of child support for actual relationships. The place where the argument just can't stand up is in the case of one night stands, explicit agreements to the contrary and the like. Issues I will address in my next comment.
1.5.2008 1:45pm
Bruce Hayden (mail) (www):
Just to push the inequities a bit further, if the woman conceives a child while married with another man than her husband, courts seem to routinely hit the husband for support as the presumptive father under law, even if he has DNA evidence that he isn't the father.

And then, there are situations where mothers go through a phone book and have anyone with the name of the putative father served. And, then the person who doesn't respond correctly under the law is found to be the legal father by default. (Day by Day had a great comic strip on this when Sam (for Samantha) was served, and proved her non-paternity by flashing her breasts at the judge).

My point with these is that men end up being designated as the fathers of kids for child support purposes through DNA testing, and also despite DNA testing. The women have it both ways, all, of course, "for the benefit of the children".
1.5.2008 1:54pm
BruceM (mail) (www):
Waldensian, don't you think that a man who assumes that a woman is telling the truth, particularly about sex, is negligent? Sure women can lie about birth control and still entrap a man into getting her pregnant and paying child support, but the man still assumed the risk. Maybe with prostitutes, where you are buying a serving, you should be allowed to rely on the representations of the seller, but in consensual sex, there is no 'seller' and both parties assume the risk of a child. Chances are the man has lied to the woman (about his income, his job, his status, his family and friends) in order to have sex with the woman in the first place. Nobody can make fully informed decisions about their sexual partners and the intcercourse they have with them. Thus, they assume the risk of a child.

I still contend the difference lies between sexual intercourse and masturbation. There is a human compulsion to have sexual intercourse, thus humans must assume the responsibility of the natural effect of that act, pregnancy. There is no human compulsion for men to masturbate into containers and preserve their semen as chattel. Quite the opposite, in fact. Thus, humans should be free to negotiate freely and without the interference of the law and notions of "protecting the children" because the children are intended ab initio by the woman negotiating her acquisition of the sperm for insemination. It's understood by both sides that the woman is acquiring the sperm for insemination. Even if the woman lied and said she only wanted to buy the sperm to drink it, and not for insemination, if she chooses to inseminate herself with it, she made that decision unilaterally and thus should bear the financial consequences unilaterally.

In other words, there is a difference when children are the cause, and not the effect.
1.5.2008 1:57pm
NI:
DaveHeal, my apologies, I was half asleep when I posted and it isn't supportobligations.com Here is the link to the article:

http://www.supportguidelines.com/articles/art199903.html
1.5.2008 2:23pm
A. Zarkov (mail):
Pub Editor:

Thanks for the case. I’m glad to see that some sanity entered the legal system with regard to illegal immigration.

A few words about the concept of “punishing” children for the actions of their parents. Mexico. If a child’s parents steal a car and give it to him, he doesn’t get to keep the car because he didn’t know his parents stole it. The car must be returned to its rightful owner even if returning the car causes a hardship. The child can’t argue that he should get to keep the car because he needs it to earn a living or go to school, and he shouldn’t be “punished” for his parent’s actions. Similarly parents who enter the US illegally with their children-- we don’t punish the children by deporting them with their parents. Deportation is not a punishment (except in special circumstances); it’s the taking back of something gained illegally.
1.5.2008 2:34pm
American Psikhushka (mail) (www):
tvk-

And it would seem that outside of the sperm donation context, most men are indeed highly ignorant about the magnitude of the risk of their child support obligation. Very few men, before it is too late, are likely to realize that child support can be a significant chunk of their income, is basically non-waivable, and is enforced by the most draconian measures available to the modern state.

Some of the hypotheticals we are talking about criminally victimize men who are quite aware of the risk. Even if you are safe and responsible you aren't protected from someone that will root around in a dirty condom, intentionally have herself inseminated, and then make fraudulent claims against you. (Fraudulent in the sense that I bet few of them disclose in their filings "Yeah, I inseminated myself with sperm from a dirty condom and he was safe, responsible, and didn't know anything about this, but I still want support." Not disclosing that is a fraudulent representation.)
1.5.2008 2:36pm
TruePath (aka logicnazi) (mail) (www):
Hmm, have my bold and italics privileges been taken away?

Anyway this is the more interesting post with 1st ammendment issues in it. Ohh and yes I know that it's not only women with child support but it's too long to write.
----

Anyway so let us now restrict our analysis to the case of the one night stand or the friend who donates sperm under an oral contract. Unlike the above situation this can't be explained merely as an implicit contract since it is the inability of the woman to repudiate her future claims to child support which prevents the whole situation for just decaying down to no child support for one night stands.

Now what argument can support this point?

1) The woman can't waive this right because it is a right of the child?

But it obviously isn't a right of the child. If this was really the theory the woman would be obligated to seek child support. If the mother has the right not to seek child support once the child is born how can she not have that right to seek it before? Heck, divorce settlement agreements are precisely binding promises not to seek more that a certain amount of support for the child in the future so how does this differ?

Maybe the woman should avoid sleeping with guys who won't share the risk with them but that doesn't show they shouldn't be free to do so if they choose. I mean what's next legally demanding women attend college so they can pay for their future children?

2) The child needs the money and the child's welfare trumps the fairness consideration for the dad.

This is just a fancy way of saying take from the (possibly) rich and give to the poor. If you really believed these arguments why wouldn't we just grap the nearest millionaire when a fatherless baby was born and appoint him to pay for child support? This isn't an argument at all since it presupposes it is morally obligatory the guy pay.

3) The guy is an equal participant in the act therefore he has an equal responsibility to pay the consequences.

This argument seems appealing but we simply don't accept it in other circumstances.

We like to romantisize pregnancy but as far as the law is concerned it might as well just be a certain kind of infection. Can you imagine if the law let you sue your friend because he gave you the flu after he warned you and you invited him out to hang out with you anyway. Not only does any other rule unfairly penalize the vulnerable party (people are afraid they will sue) but in cases like this it poses a moral hazard.

Finally you can't argue that this is to make up for the horrible burden of pregnancy and dealing with this difficulty for women unless you are willing to grant that the experience of giving birth is less wondrous than the extra worry you have picking up guys in a bar. You can't both claim being fertile is a great wondrous gift as well as a horrible curse. It has ups and downs like everything else but you can't cherry pick when you want to make your point.
1.5.2008 2:38pm
American Psikhushka (mail) (www):
Gene-

However, courts have as far I know held that the fact of statutory rape is irrelevant to the validity of child support obligations.

I think the two situations are easily distinguished. In the statutory rape case you're still talking about accidental conception with consensual sexual partners. In the case of stolen sperm you are talking about the intentional bypass of working contraception and intentional conception. Then most likely fraudulent misrepresentations and filings and perjury in any related legal actions.
1.5.2008 2:47pm
American Psikhushka (mail) (www):
TruePath-

Hmm, have my bold and italics privileges been taken away?

Wow, it's good they aren't trying to take away your bodily integrity. Or batter you or worse. Because that's a RIGHT.
1.5.2008 2:55pm
TruePath (aka logicnazi) (mail) (www):
Sorry 2 more reallly really quick points.


1) Some of those harmed the worst by making guys pay child support after one night stands/summer flings are the intelligent liberated women this sort of women's justice movement is aiming to protect. None of my female friends in grad school would ever actually carry some child they had on some fling to term and certainly would never demand child support. However, the fact that some girls try slimeily (a few is enough) makes it harder to convince the guys it's okay to sleep with them. (I for instance won't sleep with pro-lifers).

2) A friend of mine from high school is now finishing up grad school in physics out in princeton. She wants to have children on her own (with extended family support) if she can't meet a guy she might want to marry in 2 years and reasonably finds genetic material from someone she knows more appealing than a sperm bank. Even if she found a donor to trust her totally the law means they would be on the hook in an emergency the net result being strictly praedo inferior.

-----

If you think kids need more money then cut taxes (or give more subsidies) to those economic groups. On the other hand if you think these subsidies encourage women to just have more kids than child support does the same thing. Either way I think we need to move away from these nonsensical fairness based arguments and start looking at some hard sociological data about what laws create the best benefits.
1.5.2008 2:57pm
TruePath (aka logicnazi) (mail) (www):
American Psikhushka:

I was actually thinking they were showing mercy to the other commenters.
1.5.2008 2:59pm
American Psikhushka (mail) (www):
BruceM-

I don't see a distinction between copulation and masturbation. Why should the manner in which sperm unites with egg matter? If we're willing to allow a man and a woman to create life and to enter into an enforcable contract regarding the support of that life, why should it matter whether that life was created in a laboratory or the old fashioned way?

It is impossible to unintentionally get pregnant from masturbation. In the stolen sperm situation we are talking about intentionally bypassing working contraception, intentional insemination, and likely false representation in filings and the like.
1.5.2008 3:03pm
Patrick216:
In my state (Ohio), in the overwhelming majority of cases, courts award child support based on a statutory formula that factors in how many children there are, the incomes and liabilities of both parents, and the percentage of time the children stay with the obligor parent.

What makes the child support system really rough on non-custodial parents ("dads") is that the system doesn't adequately take into account the necessity of the man to pay for his own living expenses. When a couple is married or cohabitating, both parents' incomes pay for a single set of shared living expenses. Suddenly, mom becomes responsible for paying for a house, food, utilities, etc. for herself and her kids, and dad becomes responsible for paying for housing, food, utilities for himself AND some of mom's.

If you're a guy making $100,000 a year, you can probably afford to do that -- though you'll find yourself living in a $500 a month one bedroom apartment in a bad neighborhood. If you're a working class guy making $30,000, or even a middle class guy making $55,000 or so, it becomes a lot tougher. Where I think the child support laws get goofy is how they deal with men who are not -able- to make their support obligations. It's one thing to track down and punish truly "deadbeat dads" who have the money to pay and refuse; quite another to force a guy to become homeless to make support payments, and to take away his driver's license and throw him in modern debtor's prison if he is unable to pay.

I can tell you one thing -- I'm single, I have no kids, and the more and more 30-something and 40-something divorced men I encounter who have suffered the crushing consequences of divorce, the more I'm convinced I'm best off by staying the way I am.
1.5.2008 3:14pm
JTM:
I'm know I'm in the minority here, but I would hold the father responsible for child support in all of the scenarios presented above.

There was a reason why parents in the past counseled boys about behaving appropriately with sexual matters, and not just to protect the girls, but for the boy's own sake. Bodily fluids, if left about, can result in procreation. Given that a crying infant without the means of support should always be society's paramount concern, there is good reason to impose strict liability on the father's conduct. This includes not just careless sex, but also the thoughtless tossing of a condom where anyone can access it.

In the case at issue, the parents attempted to agree to create a child without a father and only one parent to provide support. Contrary to the libertarian viewpoint that the "contract" between the two parents should be enforced to the detriment of the child, society as a whole should declare these types of agreements to be void and let the chips fall where they may.
1.5.2008 3:40pm
American Psikhushka (mail) (www):
mea-

Male rape can happen, and all sexual violence should be taken seriously but in discussions of parental rights and especially in a discussion involving (even tangentially) abortion rights, throwing in male rape and weird unusual behavior by harlots stealing sperm is a red herring because it really is the weird outlier that sticks out because it is so unusual and rare.

I know of several "stolen sperm" cases personally. I can't get into specifics because they haven't been litigated/etc. yet. (I realize one can claim that this is a cheap argumentation tactic, but I had to mention it because I want the word to get out and the public to start realizing that this occurs.) Maybe its a regional thing, but if I know of several personally I would bet there are dozens, if not hundreds or more, nationwide.

So if the laws make it possible to basically get away with unilaterally enslaving someone and tying them to you for a significant portion of their life, don't you think it would be a good idea to do something about it? (And no, I'm not heartless, any children in a case like this are victims too.)

If I were the judge in that case, and the facts did show that such a crazy thing had happened, I would be thinking that the risk of pregnancy shot up because of the behavior of the woman but I'd want to know if the man had sex with her earlier using that condom because in that case he did consent to some risk of pregnancy because contraceptive failures do happen. So unless the man was solitary in his actions that led to the discarded condom, then it is fair for the law to allocate some responsibility to the man for actions (sex using condom) that created a risk that a child would result from his actions.

This is irrelevant. In the stolen sperm hypothetical we are talking about the woman intentionally bypassing working birth control (the man doesn't even need to have had sex, or any contact whatsoever, with her), intentionally inseminating herself, and then most likely making fraudulent filings and the like. Talking about any other sexual contact is emotionally manipulative fluff. Same thing with any talk about the difficulty of childbirth, etc. - the women in these hypotheticals went out of their way to intentionally bypass working contraception and to intentionally inseminate themselves.

I would also be concerned about the welfare of the child: How competent is the woman to have custody of the child if she acts in such a manner? And if she is crazy then is there an alternative to dumping the child into the foster care system? So I'd be hoping that in a situation where precious bodily fluids are actually stolen that the law could take all the weird facts into account in assessing both custody and parental obligations.

This is something we agree on. Although I wouldn't assume they're crazy, the biological clock, baby rabies, etc. are pretty powerful motivators.

The fact that in some cases she can and does have an abortion doesn't detract from the fact that in virtually any sexual encounter between heterosexuals there is a risk of pregnancy that could lead to a baby being born. If you don't like the potential consequences don't engage in the behavior.

More emotionally manipulative yet irrelevant material. We're talking about intentionally (and literally) injecting this risk back into the situation as a certainty by bypassing properly functioning contraception.
1.5.2008 3:44pm
American Psikhushka (mail) (www):
Let me stipulate for the record here that as a fellow part-irishman I empathize with the sperm donor McKiernan in the case above.

They're ALWAYS after our lucky charms.
1.5.2008 3:47pm
NI:

I can tell you one thing -- I'm single, I have no kids, and the more and more 30-something and 40-something divorced men I encounter who have suffered the crushing consequences of divorce, the more I'm convinced I'm best off by staying the way I am.


Yup. And I think one collateral consequence of all of this is that since virtually every man out there now knows that husbands and fathers get screwed in family court (and not in a good way), as time goes by fewer and fewer men are going to be willing to take the risk of becoming husbands and fathers. Since there is no longer any stigma to premarital sex, or even living together, and since birth control pretty much works, they no longer have to.

One more comment: My own father died when I was a small child so I grew up in a home without a father. I know from experience that growing up fatherless is a terrible thing. Any woman who deliberately and intentionally plans for a child to grow up fatherless is, in my opinion, unfit to be a parent almost by definition.
1.5.2008 4:11pm
American Psikhushka (mail) (www):
JTM-

Bodily fluids, if left about, can result in procreation.

Not without tortious and probably criminal behavior.


Given that a crying infant without the means of support should always be society's paramount concern, there is good reason to impose strict liability on the father's conduct. This includes not just careless sex, but also the thoughtless tossing of a condom where anyone can access it.

Hmmm. Can I break into your house and take the money and valuables that you thoughtlessly toss there? Can I steal the car that you thoughtlessly park in your driveway? So if you let me on the property should it be assumed that you are giving me license to steal all these things? Of course not. The women in the stolen sperm scenarios are engaging in acts of blatant selfishness and dishonesty. Letting them victimize and use men and victimize and use children without any consequences - in fact in most cases being rewarded - is disgusting. They wanted babies and they didn't want to go about it the right way - consensually. So they just took what they wanted without caring about the consequences to others. That's equivalent to theft or rape using the state to provide the force.
1.5.2008 4:21pm
BruceM (mail) (www):
American Psikhushka, you've misquoted me. You quoted AK's response to my post which he made at 1.4.2008 11:40pm.
1.5.2008 4:25pm
Acksiom (mail) (www):
And I'm still waiting, as usual and always when this topic arises, for someone to provide a valid and supportable explanation as to why a woman should be automatically entitled, as the default state, to use my genetic information to reproduce ITFP.

As usual and always, I question that unconsidered presumption. I agreed to no contract allowing her to do so; it's MY genetic information, it belongs to ME, and if I don't want a child made with it, how exactly is she supposed to be entitled to do so anyways?

How exactly is her mere access to the primary means of transportation of that information supposed to entitle her to use it to create a child?

In fact, how exactly is her mere possession of my ejaculate, whether by gift, sale, theft, or other means, supposed to entitle her to use the personal and individual information it contains in ANY way? Can she give it to a friend or family member so that they can reproduce with it?

It's MY genetic information. It belongs to ME. And if I categorically DENY anyone else the right to use it for any purpose whatsoever, what grounds can they possibly have for doing so anyways?
1.5.2008 4:40pm
American Psikhushka (mail) (www):
BruceM-

American Psikhushka, you've misquoted me. You quoted AK's response to my post which he made at 1.4.2008 11:40pm.

Sorry. My mistake.
1.5.2008 4:41pm
tvk:
American Psikhushka, your point actually reinforces my point. Most men assume that they have some remedy if the woman takes seman from a used condom (though even I believe that is an unrealistic extreme case). These men in fact have no remedy. And that is why they underestimate their risk ex ante. But the iron law of politics is that those who are ignorant have no power and get screwed. So they will continue to be screwed.
1.5.2008 4:59pm
Brian K (mail):
I think one possible solution to all of the problems posed would be to set up a period of time where the male can opt-out of paying child support. This can be made equivalent to the female opt-out period (i.e. abortion).

If the father opts-out, then he is also waiving his right to be involved in the child's life. if he changes his mind in the future, he can work out some agreement with the mother or current guardian(s).

The default amount of child support would be determined by the amount of custody the non-custodial parent has. If the father has 50% custody, then he pays 50% of the costs of raising the child. If the mother has 20% custody, then she pays 20% of the cost. Obviously, this default award can be altered by the parents at their will. If one parent has 20% of custody, but refuses or is unable to see the child for whatever reason, then they sill pay 20% of the costs.

Marriage or a long term committed relationship presumes that both parents will support the child equally. In the case of divorce or break up, this will be the default amount.

This takes care of the rare incident where the woman lies to the man or uses the condom to impregnate herself as the male can just opt out of child support.

In the case of artificial insemination, the male automatically gives up any right to see the child and automatically opts-out of child support.

However, there are some problems with this proposal.
1) it assumes that both the future father learns about the conception at about the same time that the mother does. obviously, this isn't always true. i think this can be solved in a less than ideal manner by giving the father a set amount of time after finding out that he has a child to opt out of support. this would avoid the perverse incentive of the mother to delay telling the father about the child until the child is already born and would incentivize telling the father right away.

2) What do you do if one of the parents is unfit and as a result can't see the child? I think it would be fair to force the unfit parent to still pay some support even if they have zero custody.

3) I don't know how to work out the case where the father wants the child and the mother wants to abort. Should the mother be able to abort unilaterally? should she have to carry to term and then give sole custody to the father? I think it would be best if this was determined on a case by case basis between the future parents.

4) how do you deal with a child born as a result of rape? I think the parent who was raped should get full custody and full support from the rapist. This doesn't matter if the female or the male was raped. Although this still has problems because of statutory rape that I don't know how to solve.

5) I suppose there will still be some odd scenarios that aren't covered by the above proposal. they can be taken care of on a case by case basis through the courts.
1.5.2008 5:22pm
Brian Macker (mail) (www):
The obligation to support the child seems to arise from the fact that the child didn't ask to be created and when it is created in is put in a state of incapacitation. In any other case a person who intentionally or unintentionally puts someone in such a state they would become responsible for them. For instance, I someone were to drug another person in the desert they couldn't just leave them there to die.

In the case of in vitro and artificial insemination it's not just the biological parents that have participated in the creation of the baby. The doctor, the sperm bank, etc all participated and to a certain degree should be held accountable for supporting the baby.

I think the same is true for any other kind of genetic experimentation, cloning, or genetic enhancements. All parties involved should be open to lawsuits on behalf of the child.
1.5.2008 6:04pm
JTM:

But the iron law of politics is that those who are ignorant have no power and get screwed. So they will continue to be screwed.


This is too funny. Many seem to forget about the initial screwing that led to the predicament. Incredibly, no one appears wiling to hold the Gomers who willingly (and with smiles on their faces, no doubt) allowed themselves into these predicaments any responsibility whatsoever.
1.5.2008 7:07pm
reznil:
Shouldn't a contract excusing a sperm donor from child support obligations be enforceable per substantive due process? I mean, if a state tried to void such a contract on public policy grounds, the court should just say that the right to the procreation (including the terms of procreation, see Griswold, Roe, Casey) is a fundamental right and strike down the state law.

Furthermore, if the public policy behind child support is to make sure that the child is financially supported, then all sorts of laws conflict with public policy. For example, how many kids a family can have should be tied to their income, with the poor being forbidden to reproduce. Maybe that rule is not able to be administered; how about a law that forbids having children without two parents (of any sex) set to provide for the child?
1.5.2008 9:27pm
Pliny, the Elder (mail):
Pub Editor

It is not possible for the governmetn to deport thier children who were born here; thye are US citizens and ICE would lack jurisdiction. Judge Pregerson apparently cannot understand statutes, but we need not join him in invincible ignorance. The idea he pitches, that because we provide the windfall of birthright citizenship to all those who are born here, with a very few exceptions, we must extend that windfall to their parents is ridiculous. Interesting, if such a set of rules actually violates the civil rights of the children, that makes the parents guilty of criminal conspiracy to deny the children of those rights. Odd result.
1.5.2008 9:39pm
A. Zarkov (mail):
Here is a hypothetical. A man gives a medical laboratory a semen sample for a diagnosis. A female lab technician who knows the identity of the patient steals part of sample and uses it to get pregnant. Does he now have to pay child support because he is the genetic parent? He’s not a sperm donor, so I would think he’s vulnerable. Can he sue the medical laboratory? We certainly can’t say the man was careless.
1.5.2008 9:54pm
mischief (mail):

Another axiom says we can’t “punish” children for the actions of their parents. Ergo a genetic father is out of luck unless the mother has a higher income or can find someone else to support the child.


Or he commits suicide.

Indeed, by that argument, children are punished every year by all sorts of diseases that kill their fathers.
1.5.2008 10:02pm
Elliot123 (mail):
This seems rather simple. Don't donate sperm. Especially don't do it for a friend. The woman doesn't get the kid she wants. So what?
1.5.2008 10:27pm
Fred (mail):
I would be idly curious as to what made this woman change her mind after 5 years and demand child support but the question that this discussion raises in me is this: If the "woman has no right to waive child support because this right belongs not to her but to the child" then can she be required to seek child support? Meaning that if the rights of the kids make it ok for her to go to court seeking child support then by choosing not to go to court she would be depriving them of their rights wouldn't she?
1.5.2008 11:11pm
ReaderY:
As the North Carolina court of Appeals put it when turning down a claim that a woman had committed fraud when she falsely said she was using contraception, "the law of the child is not the law of the market" and contract law simply does not apply.

I see no reason why this basic centuries-old common law rule should be any less sound just because a little bit of technology is involved.
1.6.2008 12:28am
Waldensian (mail):

Waldensian, don't you think that a man who assumes that a woman is telling the truth, particularly about sex, is negligent? Sure women can lie about birth control and still entrap a man into getting her pregnant and paying child support, but the man still assumed the risk.

You are just restating the false reasoning. Give me one other example, in our legal system, where contributory negligence can be used as a defense to an intentional tort claim. The very idea is bizarre.
1.6.2008 12:37am
Waldensian (mail):

Waldensian: you make some good points, but you should know that the Sixth Circuit rejected similar arguments in Dubay v. Wells, 06-2107 (6th Cir., Nov. 6, 2007).

The Courts just don't care about my good points. Just ask Frank Serpico (yes, that Frank Serpico). The man got around.
1.6.2008 12:38am
Waldensian (mail):

Waldensian, don't you think that a man who assumes that a woman is telling the truth, particularly about sex, is negligent?

It occurs to me that this must have been tongue-in-cheek, because nobody could be that overtly sexist. Sorry I took you seriously. But it does point up the problem nicely: a system in which men are deemed to have assumed the risk of serious intentional misconduct by women is a system that, quite obviously, assumes women cannot and should not be trusted. At that point, the law is considering them to be worse than minors, really.
1.6.2008 12:42am
Waldensian (mail):

Law is about allocating responsibility and it is perfectly fair for men to be on the hook for their share of the potential financial consequences of their sexual actions. Women via biology are always left facing the potential physical consequences. It is fair that both parties are held responsible for the financial consequences of raising a child.

So if law is "about allocating responsibility," then a woman who intentionally and admittedly deceived a man with respect to contraception (e.g., told him she was taking the pill when she wasn't, with the intent to become pregnant) -- and who thus intentionally sought "the potential physical consequences" of pregnancy -- should at the very least be held more responsible than the man for the financial consequences of the child being born, right?

Note that, in any other legal scenario, the woman's fraud would clearly be considered the proximate cause of the financial damage, and her attempted defense that the man "assumed the risk of her fraud" would be dismissed as a matter of law. Possibly with sanctions.

So the woman should at least pay more, right? Or the man ought to have some sort of action over against the woman for damages, correct?

After all, law is about allocating responsibility. And I think that in the case I have outlined, it would just be absurd to say that the man is more, or equally, responsible, when the woman has defrauded him intentionally.

Or should contraceptive fraud be the perfect crime?
1.6.2008 1:00am
Gene (mail):
-American Psikhushka


However, courts have as far I know held that the fact of statutory rape is irrelevant to the validity of child support obligations.


I think the two situations are easily distinguished. In the statutory rape case you're still talking about accidental conception with consensual sexual
partners. In the case of stolen sperm you are talking about the intentional bypass of working contraception and intentional conception. Then most likely
fraudulent misrepresentations and filings and perjury in any related legal actions.

I don't see the difference. Conception was not accidental but the direct consequence of the statutory rape. Consent is legally irrelevant to statutory rape, because a minor is by law not capable of consenting to sexual intercourse, whether voluntary or not. The reason why the analogy to statutory rape is applicable is that the law and society has made the judgment call that the innocence of the child permits enslavement of the male, even where the conception is the result of an act considered reprehensible by law. The fact that the child is innocent must therefore trump any consideration of the responsibility of the woman. I believe that forced abortion should be an option in such cases. A rapist should simply not be allowed to keep the fruits of her crime, and prior to viability the fetus has no right to be born. If the degree of consent is to make any logical difference, a statutory rape victim therefore has an even stronger case for relief from economic responsibility. The court in S.F basically responded that any illegality on the part of the mother was irrelevant to the father's support obligations.
1.6.2008 2:18am
A. Zarkov (mail):
“The woman doesn't get the kid she wants. So what?”

Exactly. Moreover I think the solution to the sperm donor paternity problem is simple: stop institutional sperm donation. We could make exceptions for infertile married couples provided they legally adopt the child and purchase life insurance sufficient to support the child. Single women will just have to find mates or go childless.
1.6.2008 4:16am
A. Zarkov (mail):
ReaderY:

"I see no reason why this basic centuries-old common law rule should be any less sound just because a little bit of technology is involved."

So you think a man submitting a semen sample to a medical lab should be responsible if it gets misused to create a pregnancy? What is the man supposed to do in this case, not get the medical test he needs?
1.6.2008 4:21am
A. Zarkov (mail):

Waldensian:

“The Courts just don't care about my good points.”

You got it. With respect to matters regarding race, women’s “rights” and the environment, American jurisprudence has gone off to the gamma quadrant. In many respects we are starting to resemble the former Soviet Union. Everything is political, even the weather (global warming). We have false dogmas that must remain unquestioned in the public domain lest you get condemned as a racist, or a sexist.
1.6.2008 4:31am
Acksiom (mail) (www):
And I continue to still be waiting, as usual and always when this topic arises, for someone to provide a valid and supportable explanation as to why a woman should be automatically entitled, as the default state, to use my genetic information to reproduce ITFP.

Again, as usual and always, I question that unconsidered presumption. I agreed to no contract allowing her to do so; it's MY genetic information, it belongs to ME, and if I don't want a child made with it, how exactly is she supposed to be entitled to do so anyways?

How exactly is her mere access to the primary means of transportation of that information supposed to entitle her to use it to create a child?

In fact, how exactly is her mere possession of my ejaculate, whether by gift, sale, theft, or other means, supposed to entitle her to use the personal and individual information it contains in ANY way? Can she give it to a friend or family member so that they can reproduce with it?

It's MY genetic information. It belongs to ME. And if I categorically DENY anyone else the right (pardon me; I correct myself) permission to use it for any purpose whatsoever, what grounds can they possibly have for doing so anyways?

It's amusing how this entirely serious argument is always so conspicuously ignored. Apparently it's just too far outside people's sheep-like conformity comfort zones or something. Perhaps it's that I've yet again presented an undefeatable argument which the opposition refuses to acknowledge out of sheer immature unwillingness to admit to being beaten.

Bottom line: mere intromissive heterosexual intimacy does not automatically trigger a childrearing contract (try pretending it does and look at the insanity to which said proposition inevitably leads). Such intimacy within the bounds of a marriage or civil union contract may, can, and usually does, of course. But the essential point remains: my genetic information is MY PROPERTY, and if another person uses it without my permission, it is THEFT, and how exactly am I supposed to be at all responsible for the consequences of their criminal actions?
1.6.2008 6:09am
Mike G in Corvallis (mail):
American Psikhushka wrote:

I know of several "stolen sperm" cases personally. I can't get into specifics because they haven't been litigated/etc. yet. (I realize one can claim that this is a cheap argumentation tactic, but I had to mention it because I want the word to get out and the public to start realizing that this occurs.) Maybe its a regional thing, but if I know of several personally I would bet there are dozens, if not hundreds or more, nationwide.

Many moons ago a friend of mine in college was dating a girl who gradually became more and more infatuated with him and eventually tried to pressure him into marriage. She wasn't on the pill, so every time they had intercourse he was quite careful to use a condom. One evening she performed fellatio on him, then abruptly retreated to the bathroom to "wash up." Suspicious, he opened the door and found that she was ... er ... attempting to artificially inseminate herself. Fortunately for my friend, she didn't succeed in getting pregnant. Needless to say that was the end of the relationship.

So yes, it does happen.
1.6.2008 7:22am
Mike G in Corvallis (mail):
Acksiom wrote:

But the essential point remains: my genetic information is MY PROPERTY, and if another person uses it without my permission, it is THEFT, and how exactly am I supposed to be at all responsible for the consequences of their criminal actions?

Aha! It's a copyright violation!

God help us if the RIAA gets involved ...
1.6.2008 7:25am
American Psikhushka (mail) (www):
tvk-

American Psikhushka, your point actually reinforces my point. Most men assume that they have some remedy if the woman takes seman from a used condom (though even I believe that is an unrealistic extreme case). These men in fact have no remedy. And that is why they underestimate their risk ex ante. But the iron law of politics is that those who are ignorant have no power and get screwed. So they will continue to be screwed.

Oh they have a remedy, it's called the court system. These women have committed crimes and torts. Certain ignorant and/or corrupt elements of the legal system just haven't been doing their job. I see that changing. I think you underestimate how fed up men are getting at this kind of criminality, dishonesty, and injustice.

(though even I believe that is an unrealistic extreme case).

Perhaps you are one of those I mentioned that idealize women. In any case you should believe it, because it is happening. Women drown their kids, murder their husbands, steal money hand over fist, etc. all the time - why would you think they would think twice about committing such a low risk (for now) crime?
1.6.2008 6:35pm
American Psikhushka (mail) (www):
JTM-

This is too funny. Many seem to forget about the initial screwing that led to the predicament. Incredibly, no one appears wiling to hold the Gomers who willingly (and with smiles on their faces, no doubt) allowed themselves into these predicaments any responsibility whatsoever.

What's funny is these women are criminals and you think they should get a free pass - well, because they're women or something. Or some religious argument.

But the bottom line is they are criminals and tortfeasors. I think the legal system has been largely ignorant to what they've been doing, but that's going to change.
1.6.2008 6:45pm
American Psikhushka (mail) (www):
ReaderY-

I see no reason why this basic centuries-old common law rule should be any less sound just because a little bit of technology is involved.

Because there is more culpability. She has to intentionally steal sperm then intentionally inseminate it. Then she files false claims and misrepresentations with the courts.

And contrary to what the judge said, the laws concerning fraud aren't just the "laws of the market" - someone can deprive another person of rights using fraud. So there are issues of fundamental rights, fundamental due process, etc. involved as well. The laws against fraud aren't there just to protect people while they're buying and selling widgets.
1.6.2008 6:55pm
American Psikhushka (mail) (www):
Waldensian-

You are just restating the false reasoning. Give me one other example, in our legal system, where contributory negligence can be used as a defense to an intentional tort claim. The very idea is bizarre.

I agree. And I think it goes beyond that. Any claim of negligence is specious. The man used birth control and it worked. The woman intentionally and without the man's consent bypassed the effective contraception. That isn't negligent by any stretch of the imagination.

I guess when a bank has a vault with walls only three feet thick and someone tunnels through this and steals the money the bank was somehow "negligent".
1.6.2008 7:09pm
American Psikhushka (mail) (www):
Gene-

Conception was not accidental but the direct consequence of the statutory rape. Consent is legally irrelevant to statutory rape, because a minor is by law not capable of consenting to sexual intercourse, whether voluntary or not. The reason why the analogy to statutory rape is applicable is that the law and society has made the judgment call that the innocence of the child permits enslavement of the male, even where the conception is the result of an act considered reprehensible by law.

I think you're muddying the waters with the statutory rape hypothetical, and mixing it up the the adult's criminal culpability for the statutory rape in the hypothetical.

In the case of conception during a statutory rape the pregnancy is still accidental. So your statutory rape hypothetical is really no different from the usual situation of a couple having sex without birth control or when a condom breaks.

In the case of stolen sperm you have a woman that intentionally stold sperm, intentionally inseminated herself, and then made (most likely) fraudulent filings to the court. The goal was pregnancy and she committed crimes and torts to bring this about. This shouldn't be encouraged or rewarded.

I agree that any children are victims in this along with the man, and that the children need to be provided for. But the woman as the criminal should be sanctioned harshly and the impositions on the man should be minimized in the extreme. Perhaps the father should be given near complete control to dictate terms to the mother of all aspects of custody and support. Maybe not that, but it should be something approaching that. The mother was the criminal that created the situation - if anyone should be "enslaved" it should be her. The current notion of coddling the criminal and further victimizing the victims is disgusting.

I believe that forced abortion should be an option in such cases.

I don't think abortion should be forced in any case. And it is probably unconstitutional, since people have the Constitutional right to refuse medical treatment.
1.6.2008 7:43pm
American Psikhushka (mail) (www):
Mike G-

Many moons ago a friend of mine in college was dating a girl who gradually became more and more infatuated with him and eventually tried to pressure him into marriage. She wasn't on the pill, so every time they had intercourse he was quite careful to use a condom. One evening she performed fellatio on him, then abruptly retreated to the bathroom to "wash up." Suspicious, he opened the door and found that she was ... er ... attempting to artificially inseminate herself. Fortunately for my friend, she didn't succeed in getting pregnant. Needless to say that was the end of the relationship.

So yes, it does happen.


Thanks for posting that. I'll bet if someone started advertising and actively looking for "stolen sperm" cases they would be surprised by the results.
1.6.2008 7:55pm
PTB:
Almost all of this commentary seems to me to be taking place in a parallel universe which I am glad I do not inhabit. I find the conduct of the "parents" in this case to be dubious, contradictory and sad. I find the Pennsylvania court likewise dubious, contradictory and sad, as well as off the reservation- judicially legislating a result. The obligation of support on the part of the "father" is statutorily created- the common law placed no obligation on a father for children fathered out of wedlock. As one of the early commentors noted, in order to encourage "anonymous" sperm donation, many states enacted carve-outs from the statutory duty of support. Pennsylvania had not. The court judicially legislated the carveout into existence. Off the reservation.

Most men are aware of this statutory obligation, even if they try to evade it. The most famous case I know of in this area, decided under New York law, involved Frank Serpico, the subject of a well known movie starring Al Pacino. A Serpico girlfriend, who conceded she was well aware of his aversion to children, stopped taking the pill and conceived a child. He disavowed responsibility, on the basis she had orally agreed early in their relationship never to seek support if she were to conceive a child. She sued. Held: the paramount interest is that of the child, and neither adult "parent" could waive the child's right. I think this is the right result. Despite all the empty theorizing in the comments, I think that is still the right result. The commentors make many questionable assumptions in dealing with this issue, and almost none focus on "the best interests of the child." That is what is the blackletter issue, not the desires, hesitancies, bargains, evasions, lies or fraud of either "parent." A child's life has been brought into being, and the state has the right to require support. If you want to argue from whom, or how much, or for how long, OK. But I don't think a society worth the name can or should rule on this issue with reference wholly, or even partially, to the conduct or motives of the "parents".
1.6.2008 11:02pm
American Psikhushka (mail) (www):
PTB-

Despite all the empty theorizing in the comments, I think that is still the right result.

This thread has been far from "empty theorizing". Under the current practice a woman can steal your sperm, conceive a child without your knowledge or consent, and in effect enslave you for the rest of your life. (Note I said "practice", because there are already some laws on the books that could probably be used to hold them accountable.) And don't drag out the child and claim that ends the argument, because they are victims in this too.

The commentors make many questionable assumptions in dealing with this issue, and almost none focus on "the best interests of the child." That is what is the blackletter issue, not the desires, hesitancies, bargains, evasions, lies or fraud of either "parent."

It's in the best interest of society that criminals not get away with crimes, in the hypotheticals we are talking about these women do. If they knew they would be sanctioned and not have everything they want like they had planned, chances are you will discourage others from doing that in the future. Under the current practice they get everything they want exactly as they wanted it, so the likelihood that others will do so in the future increases, not to mention the suffering you are maintaining in the present. The current practice enables, if not encourages, this type of criminal and tortious behavior.

I have acknowledged that the children in these situations need to be looked after, but the current practice rewards criminals and further victimizes victims in these situations. That isn't in anyones's interest, including the child's.

But I don't think a society worth the name can or should rule on this issue with reference wholly, or even partially, to the conduct or motives of the "parents".

Nonsense. You are talking about encouraging blatant, pathological criminality. That should play a major part in this issue. In these situations one party is attempting to force their wishes on someone else and an unborn child for the rest of all of their lives. Thinking that doesn't acknowledge that that is relevant is what's from a parallel universe.

Sheesh, the old saw about politicians kissing babies has an avalanche of crowd psychology behind it. Or the tactic of muggers throwing dolls at people as an escape tactic. You can justify some of the most twisted and stilted logic imagineable by emotionally manipulating people using children.
1.7.2008 12:39am
Acksiom (mail) (www):
Tell us, O PTB -- what exactly is your definition of "the best interests of the child", and why?

What limits, exactly, do you place upon the power of the State to compel the Citizenry to serve "the best interests" of children, and why?

"The best interests of the child" is not some kind of magic wand that you may use to trivially dissolve away points of view contrary to your own, nor serious counterarguments which invalidate it-- no matter how much you might wish it so, or pretend it to be.

Oh, and another thing -- the State does not have 'rights'. The State only has obligations -- the first and foremost and most fundamental of which is to protect the Citizenry from the State itself.

To say nothing of your apparent gross ignorance regarding "Safe Havens" options -- i.e., State programs allowing for the anonymous and consequence-free deposit of babies with emergency care providers -- the establishment and existence of which in 47 states so far provide more than ample grounds for the serious arguments you falsely characterize as 'empty theorizing'.

Because if a mother can so trivially divest herself of parental obligations, why then cannot a father?

Oh, and your conspicuous lack of address to my longstanding argument about genetic information property rights is noted. As I said, perhaps you simply lack the behavioral maturity needed to be able to admit when you got nothing to come back with, and have lost.
1.7.2008 1:35am
Gene (mail):
-American Psikhushka


I don't think abortion should be forced in any case. And it is probably unconstitutional, since people have the Constitutional right to refuse medical treatment.

Maybe, but you may constitutionally waive most of your rights under a plea bargain. If the woman gets a cut in her sentence in exchange for undergoing an abortion, and the waiver comports with the intentional relinquishment or abandonment of a known right or privilege there is no reason why the state should not do anything constitutionally permissible to prevent the birth of the child. In this case it's better that the child is never born than growing up stigmatized by living in custody of the perpetrator. If the situation were the reverse, no one would seriously contest that a child would be better unborn than growing up in the custody of the father happening to be a rapist. The only reason for the current double standard is the forgiving attitude toward female criminals.
Yes, the child needs support. But the father should not under threat of imprisonment or denial of passport or drivers' license be forced to pay just because society thinks that transferring money from one party to the child is good policy, more than woman should be forced to act as child incubators just because society desires more children.
1.7.2008 6:27am
ed (mail) (www):
Hmmmmm.

Shorter summary:

Don't get married. Don't date.

Rent hookers.
1.7.2008 1:26pm
Cousin Dave (mail):
The question posed is whether a woman can waive her child's right to the father's support. However, note that it's trivially easy for the woman to waive the child's right to the mother's support -- all she has to do is put the child up for adoption. At this point, I humbly suggest it becomes a 14th Amendment problem: fathers and mothers are being treated in a manner that is nowhere near equal under the law.
1.7.2008 2:03pm
mischief (mail):

If the woman gets a cut in her sentence in exchange for undergoing an abortion, and the waiver comports with the intentional relinquishment or abandonment of a known right or privilege there is no reason why the state should not do anything constitutionally permissible to prevent the birth of the child. In this case it's better that the child is never born than growing up stigmatized by living in custody of the perpetrator.


Nothing that forcible termination of parental rights and putting the child up for adoption couldn't fix.

Anyway, first off, are you going to force the father to let his child be torn limb from limb? Or killed by lethal injection in a manner that is now before the Supreme Court as "cruel and unusual" for a hideous murder but is routine for babies? The state has an interest in not enforcing rules that would discourage crime victims from reporting the crime.

Second off, women apply for child support after the birth. We have a case here where a woman applied five years later. What will you do then?

Note that in this case and many others, we currently have children living in just this situation. Do they commit suicide on discovering their origin? I have to think they know better than you what it's like to live with that.


If the situation were the reverse, no one would seriously contest that a child would be better unborn than growing up in the custody of the father happening to be a rapist.


Watch me.

There are people conceived by rape living today; about half of all rape victims in the USA who conceive give birth to their children. And they do not agree that being conceived in rape is worse than not being alive, because they don't commit suicide when they know of their origin. Again, they have to know better than you what it's like.
1.7.2008 6:36pm
Dick King:
Brian K, the situation [that women can get abortions and men can't] is worse than you think.

In almost all states, the mother can abandon a newborn child at a hospital or police station or fire station any time during the [usually] 72 hours after birth with no legal consequences what-so-ever, including child support. [They get a document with a number on it that they can present any time over the next 30 days to reclaim the child. Only then can the child be adopted out.]. Such laws are of course written with facially gender-neutral language, but to exercise rights under such law a parent needs physical possession, which a father is unlikely to obtain.

I propose that a father be given an abandonment privilege of equal length, in any jurisdiction that has a so-called safe haven law. Although the mother gets nine months plus the three days to abandon the child, I don't mind the father having only the three days, as long as he has that. So when does the clock start? It starts when the father is notified of the pregnancy or child. The mother has a choice with three alternatives:

1: She can notify the father well before the baby is born, in fact when an abortion is still easy. She can reasonably decide that she will only keep the pregnancy if the father is not unwilling to support.

2: She can notify the father at birth.

3: She can notify the father later, for whatever reason.

In the current legal regime, the mother occasionally waits until the father would be a stranger to the toddler or youngster, and she judges that the court would never force visitation. This strategy gets the child support for most of the child's minority without any pesky involvement on the part of the father. It has the additional advantage of maximizing child support if visitation in fact does not happen, because in most states the father gets a reduction in child support if he is granted and exercises visitation rights. My proposal would put an end to this strategy, because any father who gets notice of a pregnancy when the child is seven years old will disclaim, or at least the mother who is pulling this stunt has to think he might. My proposal would change the incentives to favor notifying the father as early as possible of the child, which is in itself a good thing.

There would be a streamlined procedure for normal married couples. The father would get the form on the first OB visit, and by default the acknowledgment would be contingent on him actually being the father.

-dk
1.7.2008 6:56pm
Gene (mail):

Nothing that forcible termination of parental rights and putting the child up for adoption couldn't fix.

Certainly, but my response was only to the remark by American Psikhushka that forced abortion would be unconstitutional, with which I agree if the abortion is coerced in the constitutional sense, but not if the treatment is consented to under a plea bargain theory. You may constitutionally waive most constitutionally rights, and the right to refuse medical treatment is no exception and may equally be waived.
Now, I agree with you that forcing abortion, even if done constitutionally, would discourage reporting of crimes, so the better option is still the termination of all parental rights. If the father in a stolen spermor fraud case can't be exempted from all support obligations, he should at least see the justice in the mother not getting any custody and payment going directly to the state.

Second off, women apply for child support after the birth. We have a case here where a woman applied five years later. What will you do then?
I think that child support applications should always be rejected under a time of limitation rule, subject to equitable exceptions, beginning to toll after the birth of the child. Even if one thinks that the current system is overall fair, and child support is to the benifit of the child, women should not have the option of giving birth to the child without notification to the father, thereby denying him the possibility of equitable and timely custody and visitation rights. If the mother claims ignorance of the father, she should be forced to apply for support from the state, and provided that it's later found out that she lied in order to deprive the father of due notification, she should be independently punished for false reporting and forced to reimburse the state for all expenses.
I think that most unfairness inherent in the current system may be addressed by strict enforcement of a time of limitation rule and prosecution for providing false information about the identity of the father, since the woman in a stolen sperm or fraud case would now have to gambit on being caught.
1.7.2008 11:36pm
cherub:
Hypothetical--

Man and Woman are getting married, and sign a prenuptual which states, among other things:

1) Woman shall receive $500 cash immediately following the wedding.

2) Woman shall receive House upon in case of divorce.

3) In case of divorce, Woman shall not seek monetary assistance for any children incurred as a result of marriage.

Things come to pass...marriage, $500, children, divorce, house...

Woman decides that she would like the monetary assistance after all. It appears that she will get it, as she had (apparently) no right to enter into a contract on behalf of a third party. What happens to the rest of the contract?

It would probably be next to impossible to show that Woman negotiated the contract in bad faith, but assuming it could be done, can Man sue for House and $500? In return, does she regain the right to renegotiate monetary assistance, and the sky's the limit?

It would seem that if this were the case, that a sneaky prenup tactic would be to insert any language referring to an unborn child and effectively nullify the contract's limits on monies sought.

------------------------------

It seems like a catch-all would be to require the court to decide percent fault, kind of like in auto accidents, and split up monetary responsibility that way. If this were done, I have a hunch that all but the weirdest cases would have some kind of fault percentage precedent associated with them fairly quickly.

Thus, "sperm-stealing harlot" becomes, say, 1% the guy's fault, unprotected sex in the back of the Buick is 50-50, lying about birth control methods skews things, mistakes/accidents in birth control skew things, etc. While possibly janky, it seems more workable than a strict "is/is not" liability.

Speaking of birth control mistakes, if a surgeon botches a vasectomy, can Dad sue him for part of his child support bill? Or is he on the hook for malpractice, or what?
1.8.2008 12:40am
American Psikhushka (mail) (www):
Gene-

This thread is probably dead but I thought I would put a response in anyway.

Maybe, but you may constitutionally waive most of your rights under a plea bargain. If the woman gets a cut in her sentence in exchange for undergoing an abortion, and the waiver comports with the intentional relinquishment or abandonment of a known right or privilege there is no reason why the state should not do anything constitutionally permissible to prevent the birth of the child. In this case it's better that the child is never born than growing up stigmatized by living in custody of the perpetrator. If the situation were the reverse, no one would seriously contest that a child would be better unborn than growing up in the custody of the father happening to be a rapist. The only reason for the current double standard is the forgiving attitude toward female criminals.

I would still be leery of trying to force abortions on people - even sperm thieves or female rapists - as a policy matter. I just don't think the state should be in that business. The main focus of my concern would be accomodating the father and keeping the violation of his rights to a minimum while providing for the child. Part of the attraction of this crime seems to be in the woman "locking" the guy in and trying to control him - trying to get what she wants and getting someone else to fund it as much as possible.

As far as these kinds of mothers go, I don't think they are necessarily unfit. They are definitely at least a little looney, but this is aimed at becoming mothers, so I don't think they would necessarily be bad mothers. But as I said earlier in the thread part of the sanctions for crimes like this ought to be the father dictating the terms of custody and support if not completely then to a large extent.

If the father in a stolen spermor fraud case can't be exempted from all support obligations, he should at least see the justice in the mother not getting any custody and payment going directly to the state.

As I stated above, goofy as they may be I don't think these women are necessarily going to be terrible mothers, so I think this has the potential to be too damaging to the child. As I stated before I think the father should dictate the terms of custody and support to the greatest degree possible, within reason.
1.8.2008 7:38am