The suit addresses the issue of male reproductive rights, contending that lack of such rights violates the U.S. Constitution's equal protection clause.
The gist of the argument: If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood. The activists involved hope to spark discussion even if they lose.
"There's such a spectrum of choice that women have -- it's her body, her pregnancy and she has the ultimate right to make decisions," said Mel Feit, director of the men's center. "I'm trying to find a way for a man also to have some say over decisions that affect his life profoundly."
Feit's organization has been trying since the early 1990s to pursue such a lawsuit, and finally found a suitable plaintiff in Matt Dubay of Saginaw, Mich.
Dubay says he has been ordered to pay $500 a month in child support for a girl born last year to his ex-girlfriend. He contends that the woman knew he didn't want to have a child with her and assured him repeatedly that -- because of a physical condition -- she could not get pregnant.
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State courts have ruled in the past that any inequity experienced by men like Dubay is outweighed by society's interest in ensuring that children get financial support from two parents. ...
Feit, however, says a fatherhood opt-out wouldn't necessarily impose higher costs on society or the mother. A woman who balked at abortion but felt she couldn't afford to raise a child could put the baby up for adoption, he said.
Jennifer Brown of the women's rights advocacy group Legal Momentum objected to the men's center comparing Dubay's lawsuit to Roe v. Wade, the 1973 Supreme Court ruling establishing a woman's right to have an abortion.
"Roe is based on an extreme intrusion by the government -- literally to force a woman to continue a pregnancy she doesn't want," Brown said. "There's nothing equivalent for men. They have the same ability as women to use contraception, to get sterilized."
Feit counters that the suit's reference to abortion rights is apt.
"Roe says a woman can choose to have intimacy and still have control over subsequent consequences," he said. "No one has ever asked a federal court if that means men should have some similar say."
"The problem is this is so politically incorrect," Feit added. "The public is still dealing with the pre-Roe ethic when it comes to men, that if a man fathers a child, he should accept responsibility."
Feit doesn't advocate an unlimited fatherhood opt-out; he proposes a brief period in which a man, after learning of an unintended pregnancy, could decline parental responsibilities if the relationship was one in which neither partner had desired a child.
Some discussion of the issue here, here, and here; and a particularly interesting two-part discussion by neo-neocon, to which I will return later.
Whatever the merit of Dubay's and the NCM's legal claim, I do think that the case illustrates rather strongly the unfairness to men of the current legal regime. With legal abortion, a woman who gets pregnant can get out of this situation with minimal consequences (unless you believe that an abortion is a profound trauma, which it does not seem to be for most women). For a man in his mid-20s to be ordered to pay $500 a month for the next 18 years -- and presumably more if his income increases -- is no trivial burden. It means a radically altered lifestyle, including seriously reduced opportunities to have a real family if he wants one.
I'm also struck by the attitude taken by feminists like Shakespeare's Sister, who says:
Men have plenty of “say” over this decision—but it all happens before the pregnancy. They have “say” over the women with whom they choose to have sex. They have “say” over whether they choose to discuss in depth with a partner what they would do in the case of an unintended pregnancy—and what their partners would do. They have “say” over whether they put a condom on.
I'm struck by it, of course, because it reminds me so much of what right-to-lifers tell women -- perhaps most pithily encapsulated in a photo I saw many years ago, in pre-Internet days, of an anti-abortion demonstrator (male) holding a placard that says, YOU HAVE A CHOICE: DON'T SCREW.
Shakespeare's Sister also says:
A man and a woman make a child together. If the man doesn’t want the child, he should be able to opt out of the responsibility, and the woman should be responsible. Of course, the flip side of this coin, which is left out of the article, is that men’s rights advocates also believe if a woman doesn’t want the child, she should be forced to be responsible to carry it to term at the man’s wishes. (In the latter case, this is usually referred to as “fathers’ rights,” although they like to leave any reference to “fatherhood” out of the discussion of the former, as in this case, where the child is not even referred to as his daughter; the use of language alone is informative as to how these men want it both ways.) You’ll notice in both cases, the woman is expected to be responsible—by allowing the father freedom from child support payments, by either getting an abortion or giving the child up for adoption if she can’t support the child on her own, or by not getting an abortion or giving up the child for adoption even if she doesn’t want a child but the father does. Funny how that works.
As far as I know, this is factually incorrect: the men's groups that support a paternal veto for abortion are distinct from those that support "choice for men." Unless Shakespeare's Sister can produce actual examples of men's rights advocates who support both, her statement is quite misleading. And by the way, under the present Roe regime, the reality is, precisely, the flip side of her sarcastic summary of the men's rights position: A man and a woman make a child together; if the woman doesn’t want the child, she should be able to opt out of the responsibility, but if a man doesn’t want the child, he should be forced to be responsible to support that child until adulthood at the woman’s wishes.
Neo-neocon takes a much less belligerent approach; but she, too, ends up coming down on the side of her present regime. Her basic conclusion: there is no good solution to this problem because of the basic reproductive asymmetry of men and women, and the present approach -- imperfect as it is -- may be the best there is. And she may be right about that, but I do think that she underestimates the unfairness of the current system toward men, and the extent to which it favors women rather than children.
In neo's words:
[T]his is where another overriding principle, the "best interests of the child" comes in. And this, once again, is because the child was not a party to that contract, and the child is the helpless result of the decisions of both these adults, and as such must be protected. It is in society's interests to protect that child--or so goes the argument--and to compel both parents to support that child financially until it reaches its majority.
But consider this: a single mother is not obligated to seek child support from the father. For instance, in 1999, according to the Census Bureau (warning: PDF file), 38% of all single mothers with minor children, and 52% of never-married mothers, did not have a legal child support award. Of the mothers without an award, nearly 40% said that they did not seek an award either because they didn't want the father to pay child support or because they didn't want the child to have contact with the father. (11% also said that paternity had not been established.) Under the law, the government can compel the mother to name the father, and seek child support from him against the mother's wishes, in one case only: if the mother applies for government welfare benefits. In other words, a mother's choice to have no contact or even potential contact with the father of her child cannot be overridden by societal interest in the child having support from both parents.
A single woman can also exercise her reproductive autonomy by going to a sperm bank, thus denying her child any chance of getting a penny from the man who supplied the DNA, and the government will do nothing to stop her. Sperm donors have long been protected by law from child support liability.
Also, in her comments, neo raises an interesting scenario:
As a factual matter, I'm not sure this is correct. Usually, the father is at a disadvantage in such lawsuits, and I wouldn't be surprised if he typically forfeited child support. At least, in cases I have followed in which the birth father contested an adoption, the mother's potential child support obligations never came up as an issue. Maybe some family law specialists can shed some light here?
[I]f the unwed father successfully stops a mother from giving a child away for adoption, she is compelled to pay him child support for that child (although she never wanted or expected to), and he is free to raise it.
As it happens, I wrote an article on men's reproductive rights for Salon.com six years ago, and I think its conclusion is still relevant here:
Given [biological] realities, it may be nearly impossible to come up with a solution that wouldn't be unfair either to men or to women. The current situation is clearly inequitable to men. But allow a veto for fathers, and it raises the disturbing specter of giving a man authority over a woman's body. Allow choice for men, and some will find it galling that a woman who wants to avoid the burden of parenthood has to undergo surgery or drug treatment with unpleasant side effects while a man merely fills out some forms.The argument for at least notifying the prospective father of an abortion (with a waiver for cases in which the woman has a reasonable fear of bodily harm from the man, or the pregnancy results from rape), seems compelling. [Arthur] Shostak, co-author of "Men and Abortion," believes that a man should have an opportunity to "plead his case" to a woman if he wants her to have their baby.
There is also a strong case for providing some options for men to terminate their paternity. (At the very least, a woman who never bothered to let the man know that he was a daddy shouldn't be able to hit him up for back pay 10 or 15 years later.)
Of course, "choice for men" could have complications beyond the issue of children's economic welfare; for one, the man could later have a change of heart. While proposals for a "paper abortion" would make the procedure irrevocable, [men's rights advocate] Fred Hayward concedes that "it's a tough one," since sometimes the child could clearly benefit from reestablishing a relationship with the father.
[Melanie] McCulley [an attorney who advocates "choice for men"] believes that a quick, early paternity termination would be better for the child than long, traumatic and often ultimately unsuccessful battles to extract money from an unwilling father. More intriguing, some proponents of men's right to choose, such as Jack Kammer, author of the online book "If Men Have All the Power How Come Women Make the Rules," argue that the option of declining fatherhood would make child abandonment less common.
"The notion of fatherhood as a trap, a burden, a yoke is strong in male culture," says Kammer. "By making fatherhood a choice, we will allow it to become an obligation freely taken, not to be resented or avoided."
And that, advocates for men say, is the real point -- not men's ability to control women or to desert children, but the ability to have input in decisions that profoundly affect their lives.
Maybe there is no good answer to the dilemma of male reproductive rights. Still, it is an issue that should prompt us to rethink some deeply held assumptions. It should make us realize that, if men who want a right to be released from their parental obligations seem callously egocentric to many people, that's how women who want abortion on demand look to many anti-abortion advocates. It should make us ponder the fact that, while paternal desertion is often cited as evidence of male irresponsibility and selfishness, more than a million American women every year walk away from the burdens of motherhood.
Above all, perhaps, the issue of men's reproductive autonomy brings home the fact that abortion can create a radical imbalance rather than equality between the sexes. For years, women have been sending a mixed message to men: Sometimes we expect them to be full partners in child-rearing, sometimes we treat them as little more than sperm donors, walking cash machines or bystanders. If men's parental role is to be taken seriously, women need to assume a moral, if not legal, obligation to involve their partners in any decision about pregnancy and we all need to have a serious conversation about men's reproductive rights -- no matter where that conversation may lead.
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