Unwilling Fathers and Abortion: Terminating Men's Child Support Obligations?
| Author | Sally Sheldon |
| Published date | 01 March 2003 |
| DOI | http://doi.org/10.1111/1468-2230.6602001 |
| Date | 01 March 2003 |
THE
MODERN LAW REVIEW
Volume 66 March 2003 No 2
Unwilling Fathers and Abortion: Terminating Men’s
Child Support Obligations?
Sally Sheldon
n
There is broad agreement across the western industrialised world that men who
father children outside of marriage share in an obligation to support their offspring
financially. Against this consensus, some men’s groups have claimed that if women
are accorded control over the decision to continue or to terminate a pregnancy then
it is unfair to hold genetic fathers financially liable for child support. This paper
assesses the merits of this claim from a feminist perspective. Having considered a
number of arguments, it suggests that the currently accepted grounding of child
support liability (in voluntary creation of need) provides little scope for refuting
the men’s groups’ argument. The paper then moves on to argue that voluntary
creation of need is, however, inadequate as a basis for child support liability, and
that the current analysis offers compelling grounds for preferring a collective
model of support obligations.
To saddle a man with at least eighteen years of expensive, exhausting child support liability
on the basis of a haphazard vicissitude of life seems to shock the conscience and be arbitrary,
capricious, and unreasonable, where childbirth results from the mother’s free choice ya
man no longer has any control over the course of a pregnancy he has biologically brought
about [and] it is unjust to impose responsibility where there is no ability to exercise control.
Although the father played an initial physical role in the creation of the fetus, he no longer
has any control over the process which converts his biological act into personhood. The
father’s participation in the procreative process begins and ends with the sexual act; from the
moment of conception on, all control and authority concerning the fate of the pregnancy
rests with the mother. The father’s role, in terms of decision making power, is reduced to
impotent bystander yAs the authority to cause a birth has shifted exclusively to the
woman, so too should the responsibility flowing from the result of her unilateral exercise of
that authority shift to her solely, away from the helpless third-party father.
1
n
Law Department, Keele University. The research for this paper was carried out during my time
as a visiting scholar on the Gender, Sexuality and the Family Program at Cornell University. I am
grateful to Keele University for allowing me sabbatical leave and to Martha Fineman and Kristine
Shaw for the warmth of the welcome and the continued intellectual stimulation which they
provided during my visit. I would also like to thank Marie Fox, Daniel Monk, Steve Wilkinson
and the anonymous readers for the MLR for their insightful and constructive comments on earlier
drafts of this paper.
1 M. B. Kapp, ‘The Father’s (Lack of ) Rights and Responsibilities in the Abortion Decision: An
Examination of the Legal-Ethical Implications’ (1982) 9 Ohio NULR 370, 376–377.
rThe Modern Law Review Limited 2003 (MLR 66:2, March). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK, and 350 Main Street, Malden, MA 02148, USA. 175
Introduction
There seems to be broad agreement in much of the western industrialised world
that men who father children out of marriage share an obligation to support them
financially. As one leading American family lawyer puts it:
[t]he duty that parents have to support their children rests, in our culture, on the widely
shared belief in each person’s responsibility for his voluntary actions and in deeply rooted
notions of what it means to be a parent. Conservatives feel additional anger when they, as
taxpayers, are required to pay for children born of nonmarital relationships that they
consider immoral. Liberals feel anger of another sort. They deplore the gendered nature of
the problem. They know that it is men who walk away from their children, and women left in
poverty who bear the burden.’
2
Against this consensus, some commentators (who, for the purpose of this article, I
will refer to as ‘men’s advocates’) cry foul.
3
They claim that if women have
complete control over the decision to continue or to terminate a pregnancy then it
is unfair to hold genetic fathers financially liable for child support.
4
As a feminist, I have long assumed that all genetic fathers should share in the
costs of raising a child for broadly the reasons which Chambers identifies above as
‘liberal’. Women are clearly disproportionately burdened (in both financial and
other ways) by the care of children and this is a significant part of any convincing
explanation of the feminisation of poverty.
5
This gross inequity would only be
exacerbated by removing men’s automatic liability for child support. Yet, on its
2 D. L. Chambers, ‘Fathers, the Welfare System and the Virtues and Perils of Child-Support
Enforcement’ (1995) 81 Va L Rev 2575, 2588. Gwendolyn Mink detects the same consensus
between conservatives, moderates, and liberals and many middle-class feminists, noting that
‘across thirty years of welfare reform, the only true faith has been in the child support obligation
of the absent father’, see G. Mink, Welfare’s End (Ithaca: Cornell University Press, 1998) 78.
3 The men’s and fathers’ rights movement is a disparate, complex and evolving body representing a
variety of (sometimes conflicting) interests, see: A. Gavanas, ‘The Fatherhood Responsibility
Movement: the Centrality of Marriage, Work and Male Sexuality in Reconstructions of
Masculinity and Fatherhood’, in B. Hobson (ed), Making Men into Fathers: Men, Masculinities
and the Social Politics of Fathers (Cambridge: Cambridge University Press, 2002), and W. F.
Horn, D. Blankenhorn and M. B. Pearlstein, The Fatherhood Movement: A Call to Action
(Lanham and Oxford: Lexington Books, 1999). I use ‘men’s advocates’ as a convenient shorthand
and do not mean to imply that all those who write on men’s studies or masculinities, or even all of
those involved in the men’s and fathers’ movement(s) would agree with the views advanced in this
name.
4 That putative fathers have no legal right to prevent their sexual partners from terminating
pregnancies has been established in the UK in the cases of Paton vBPAS [1979] QB 276,CvS
[1988] QB 135, aff’d CA, and Kelly vKelly [1997] 2 FLR 828; in the European Court of Human
Rights (at least for early pregnancy) in Paton vUK (1980) 3 EHRR 408; in Canada in Murphy v
Dodd (11 July 1989), Toronto 1566/89 (Ont S C) and Tremblay vDaigle [1989] S C R 530, 62 DLR
(4
th
) 634; and the USA in Rothenberger v Doe (1977) 149 NJ Super 478; 374 A 2d 57; Coleman v
Coleman (1984) 57 Md. App 755; 471 A 2d 1115. The unconstitutionality of spousal consent, veto
or consultation provisions has also been established in the USA in Planned Parenthood of Central
Missouri vDanforth, CS Ct 1976) 428 US 52, 96 S Ct 2831 and Planned Parenthood vCasey (S Ct
1992) 505 US 833, 112 S Ct 2791.
5 62 per cent of lone parent families (the vast majority of which are headed by women) were
officially defined as living in poverty in 1998/9, compared to only 24 per cent of two parent
families, see Department of Social Security Households Below Average Income: 1994/95–1998/9
(2000). By talking of ‘burdens’ here, I do not mean to suggest that raising children does not also
bring benefits. Rather, following Martha Fineman, I am using ‘burden’ to signify ‘that there are
costs associated with what women typically do as caretakers in society. These labors may provide
‘‘joy,’’ but they are also burdensome and have material costs and consequences. Not to recognize
them as ‘‘burdens’’ is to ignore the costs to women and to continue to make women’s labor
invisible, as well as to condone that it is uncompensated.’ M. Fineman, The Neutered Mother, the
Sexual Family and Other Twentieth Century Tragedies (NY and London: Routledge, 1995) 162.
The Modern Law Review [Vol. 66
176 rThe Modern Law Review Limited 2003
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