DISCLAIMER: The opinions expressed herein are those of the persons who send in the news items. They do not necessarily reflect those of the National Center For Men, its officers, members, Jim Whinston or Mel Feit.
Kansas: In the state which forced a boy who'd essentially been statutorially raped into legal parenthood, another case is before the Kansas Court of Appeals, and it's been requested to be transferred to the Kansas Supreme Court. See: Spease, et al v. Rooney. I haven't read the case.
Tennessee: A third case has been submitted to the Court of Appeals for the western section of Tennessee, home of the Davis v. Davis case, which said that the party wishing to avoid procreating should normally prevail (that's good). The man's argument in this case looks pretty good to me.
Colorado: The Rocky Mountain News reported on August 2, 1996 that Adams County is attempting to recover AFDC payments from a man who was about 12 when he was forced into parenthood, essentially by statutory rape.
Evidently Clinton has an illegitimate child! The paper published a picture of a boy named Danny, who bears a distinct resemblance to President Clinton, and his mother, Bobbie Ann Williams, passed a lie detector test when she claimed that Danny was Clinton's son! An anthropologist who studied a photo of Clinton and Danny found that they had many close resemblances which are so unusual that the likelihood that he is the father is very good.
Remember this the next time Clinton goes after unmarried fathers to establish paternity or collect child support.
The right to control reproduction is indisputably one deemed of great importance and is vigorously asserted. Its achievement and protection is one of the primary rationale of some advocacy organizations. While the earlier privacy rights discovered by the U.S. Supreme Court in the federal constitution (access to, and use of, contraceptives) involved no dispute between a couple, however, abortion rights subsumed under the label "reproductive freedoms" are today quintessential women's rights, i.e. they are unilateral and sex-specific.
The U.S. Supreme Court established in _Planned Parenthood of Central Missouri v. Danforth_ that states may not allow the husband (let alone an unwed biological father) any say in the abortion decision.
"We now hold that the State may not constitutionally require the consent of the spouse [...] as a condition for abortion during the first 12 weeks of pregnancy. [...] We recognize, of course, that when a woman, with the approval of her physician but without the approval of her husband, decides to terminate her pregnancy, it could be said that she is acting unilaterally. The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Since it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor." 428 U.S. 52.On the other hand, however, the federal government has forced the states to hold fathers responsible for their biological children. Modern paternity statutes provide for the involuntary determination of paternity of children born out of wedlock, and thus establishment of child support obligations. The biological father cannot defend against a paternity suit on the grounds of privacy or denial of reproductive freedom. In addition, he can be required to pay retroactive support and an equitable portion of all prenatal and postnatal related health care expenses of the mother and the child. While the economic and life style consequences of childbearing may be more onerous for women because they automatically become custodial parents upon birth, the key difference is that would-be mothers have the legal right to avert these consequences by means of abortion, while the would-be father has no functionally equivalent mechanism to escape the responsibilities of parenthood.[Also see the more recent Casey decision, in which a husband notification requirement was struck down as unconstitutional Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992).]
Under current law, once conception has occurred women can still chose whether they will become parents, while men have no such choice, whether they are married to the mother or not. If the principle of equal rights with respect to involuntary parenthood is to be take seriously this situation must be remedied.
While the inequality with respect to the right to have a child is not amenable to presentation as a constitutional complaint under a state equal rights amendment (except for cases where a would-be father seeks to prevent the abortion of what would be his child), the constitutionality of involuntary parenthood has already been tested in a Texas court.
In D.W.L. v. M.J.B.C., 601 S.W.2d 475 (1980), an unwilling biological father appealed a judgment establishing his paternity and ordering him to pay child support and attorneys fees. He argued that the woman's right to abortion breaks the nexus between the act of intercourse and the birth of the child. Since the decision to bear or not bear a child belongs to the woman, the man should not be forced to support the child if the woman chooses to bear it. (p. 478).[3] The Court of Appeals disagreed, giving two reasons: (1) that the decision to bear children is a fundamental liberty, and (2) that the U.S. Supreme Court has also held that illegitimate children have the same rights of support as legitimate children.
The first reason is specious. If the decision to bear a child is a fundamental liberty, a woman cannot be forced to abort. Whether or not a court later establishes paternity has nothing to do with it. It does not retro-actively interfere with her liberty to carry her pregnancy to term. The mother's fundamental right is nevertheless relevant to equal rights analysis, because the father has no equivalent right to decide whether he wants to be a parent. The court's second reason is more compelling, but also troublesome. As long as there is no provision for establishing the paternity of all illegitimate children, it depends on the mother (and others with standing to sue for paternity), whether an illegitimate child will enjoy equal rights, i.e. have two parents.
The argument about discrimination on the basis of illegitimacy is flawed for another reason as well: A husband could make an identical complaint about involuntary parenthood if his wife decides to bear a child he does not want to support. There is of course a good public policy reason for holding against the biological father, one that does not apply to the mother. By safe-guarding the would-be mother's right to abortion the state's welfare burden is likely to be reduced because of lower numbers of children born into adverse economic circumstances.
In contrast, if the state recognized the father's complaint against involuntary parenthood he could not be tapped as a source of support for a child ALREADY BORN. Had the court sustained the man's complaint and ruled Texas' paternity statute unconstitutional, it would have torpedoed the policy of recouping AFDC payments to relieve the welfare burden.
Interestingly enough, men who do not want to become fathers may fare better in instances where the child is not yet born. In Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), the now famous frozen-embryo case, the Tennessee Supreme Court ruled that a divorced man could prevent his former wife from using or donating pre-embryos that resulted from the fertilization of her ova with his sperm in a petri dish for later implantation. While carefully using gender-neutral terminology the court recognized that the ex-husband had an equal right to procreational autonomy, which encompasses both the right to procreate and the right to avoid procreation. The court did not create an absolute veto power for the party trying to avoid parenthood, but balanced the interests of the two "gamete- providers," and determined that Mr. Davis should prevail in his efforts not be forced to become a parent against his will.
Men may now apparently also claim an interest in fetal tissue derived from abortions performed on their female sex partners.[2] And as for artificial insemination, New York's first female chief justice, Judith S. Kaye in a recent speech characterized the question of whether sperm donors should have visitation rights as one of the serious issues confronting the family courts (New York Law Journal May 17, 1993, 1).
Editor - I was unable to find where footnote 1 is noted above.[1] This argument was examined by Levy and Duncan (1976) in the wake of _Roe v. Wade_. They concluded that the mother's decision to bear the child does not refute the RATIONAL BASIS for holding fathers at least equally liable with mothers for the support of children resulting from their sexual union, and that paternal support statutes should thus be upheld. But that argument pertains to federal equal protection analysis. The rational-basis test is no longer applicable in Texas, because the ERA made sex a suspect classification; at least since 1987, when the Texas Supreme Court clearly said so. [2] _The Chronicle of Higher Education_ April 7, 1993, A26. ("New, temporary federal guidelines on fetal-tissue research include a controversial provision that restricts scientists from conducting the research if the father of the fetus objects.")
A mere 84% success rate EACH YEAR is like playing russian roulette over the long course of a man's reproductive life, and certainly won't "control" his procreation. A binomial statistical analysis can be used to accurately predict the probability of various numbers of accidental pregnancies over time. For example, after 20 years of using condoms, a man has a only a 4% chance of having had no accidental pregnancies! 4% isn't control!
But there's more. After 20 years of playing russian roulette with condoms, the chances are that a man will experience not one, not two, but THREE accidental pregnancies! Three accidental pregnancies isn't "control", and condoms aren't a substitute for the right to decline legal parenthood.
As Kevin Darcy points out "Is the man's interest in not being made a legal parent not as "fundamental" as the above rights, and thus not as deserving of Strict Scrutiny?"
- an interest in receiving welfare benefits within a year of having moved to a different state (Shapiro v. Thompson, 394 U.S. 618 (1969)).
- an interest in entering into a marriage (Zablocki v. Redhail, 434 U.S. 374 (1978)).
- an interest in securing a decree of divorce (Sosna v. Iowa, 419 U.S. 393 (1975)).
But an 11 judge panel has now overturned that ruling, saying Ruti Nahmani's "right to be a parent is stronger than a man's right not to be a father"!
I have one thing to say about that. Yuk.
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