Paternity Fraud and Reproductive Freedom

The first article in this series (Legally Obscene) identified the injustice of forcing male victims of rape and statutory rape to pay child support to the women who raped them and became pregnant and produced children as a result. The second article went into a bit more depth surrounding consent and “willingness” as it concerns the hegemonic relationship between sexual predators and their prey, and 14th Amendment issues of equal protection of the law for male victims.

This segment will address issues of paternity fraud and reproductive freedom. This latter issue having been a cornerstone of the women’s movement of the 1960’s and 70’s that resulted in a woman’s right to choose and take control of her own body. Reproductive freedom holds similar significance for men.

The idea of reproductive freedom for women is born of the risk present in their own biology as it pertains to pregnancy and childbirth. Pregnancy carries risk to a woman’s health and well-being and therefore it is imperative that she have the freedom to control that risk. This entails everything from the right to withhold consent to sexual relations, to the use of contraception, to the decision to terminate a pregnancy or bear a child. The risk is a factor of her biology. In a similar vein, male biology carries its own risk.

A man’s sperm is a necessary component of reproduction. It is impossible to reproduce without it. Therefore ownership and control of a man’s sperm must remain with the man. Anytime a woman obtains and uses a man’s sperm to impregnate herself without his consent, it must be considered theft. Just as a woman should have the right to control her body, a man should have the right to control his. Reproduction without his consent can have serious repercussions on his physical, psychological, and emotional well-being.

The use of a man’s sperm without his consent, whether obtained by theft or by fraud, should be illegal. Reproductive freedom allows both a man and a woman to choose when and with whom they will have a child.

There is a second component to reproductive freedom that should either be afforded to both men and women, or to neither. This is the freedom to choose whether or not to parent a child that has already been born. This choice is not accompanied by biological risk to either the man or the woman. It is a matter of ethics, morality, and law. Currently, in the United States, mothers hold all the rights in this regard and fathers hold none. This situation is a blatant violation of the equal protection clause of the 14th Amendment as the parental rights and responsibilities of one parent are determined by the decisions of the other based solely upon the sex of the parent. A father’s rights and responsibilities are determined by the mother.

In most states, the father of a child is said to be the man who is married to the mother at the time of conception. This is true whether or not the man is the biological father and it can be legally binding even if it is later determined that he is biologically unrelated. The mother is under no legal obligation to disclose to her husband that another man fathered her child. This is one form of paternity fraud and one way that a woman determines the father’s rights and responsibilities to her child. She denies paternal rights to the biological father and affords them to her spouse, thus denying reproductive freedom to two men at once.

If the mother of a child is not married, she is under no legal obligation to name a father and thereby deny reproductive freedom to the child’s father. Conversely, she may also name anyone she so chooses whether he is the father or not. In some jurisdictions this is more than enough to obtain an order for child support. Both the failure to name a father and the intentional naming of the wrong father constitute forms of paternity fraud and allow the mother to determine the father’s parental rights and responsibilities.

Mothers are also afforded the right to abdicate parental responsibility by unilaterally surrendering their children for adoption. In many states, any mother can take a newborn infant to any fire station or emergency room and hand over the child “No name, no shame, no blame” as the saying goes. She doesn’t have to name herself, let alone the father. It is only slightly more complicated for an unmarried mother to surrender older children. In most cases, if she hasn’t named a father, he need not be notified and she is under no obligation to name him. The unilateral decision to surrender a child for adoption is another method a mother can use to determine the rights of the father. While it is generally not well known, in some states putative father registries exist in order to protect the rights of a father who is not married to the mother of his child.

Putative Father Registries

According to the Ohio.gov website and the Department of Job and Family Services a putative father is:

“a man who may be a child’s father, but who is not married to the child’s mother on or before the date that the child is born, or who has not established paternity of the child in a court or administrative proceeding or completed an acknowledgement of paternity affidavit before the filing of an adoption petition for the child.”

Many states have such registries. Should a putative father fail to register within a specified time (30 days after the birth of the child in Ohio), he loses all rights to his child, unless of course, the child’s mother later decides to name him (usually after deciding she wishes to collect child support). On the surface, this appears to be a good idea; it is a way for a father to assert his rights. In practice, putative father registries are a gross violation of a man’s reproductive freedom.

First, they are poorly publicized. Very few men have ever heard of them. If a man doesn’t know such a registry exists, how could he possibly register? Second, they are time limited. If a man fails to register within a specified timeframe, he loses his rights. This serves the state better than it serves the father. It allows the state to grant the adoption of a child without interference from the child’s father. Third, it is a complete invasion of privacy.

Registration consists of full disclosure to the state of the sexual nature of a relationship a man has with a woman. This isn’t simply a one-time thing. A man is required to disclose every sexual relationship he has in order to claim his rights should a child result from that relationship. In addition, should the relationship be ongoing, he must continually re-register; keeping the state informed of his sex life every step of the way.

While it might be argued that registration is completely voluntary and therefore the state is not forcing men to disclose personal and private information, the state is, in fact, coercing men to surrender this information under threat of taking away their children. It is difficult to conceive of a more malignant use of state authority.

Solutions

In order to establish reproductive freedoms for men that are equivalent to the reproductive freedoms enjoyed by women, several steps must be taken. Paternity fraud must be addressed, putative father registries eliminated, and men should be granted the freedom to abdicate parental rights and responsibilities in a similar manner permitted to women. In addition, women must be required to name the potential father(s) of her children so they may be informed they are potentially the father of a child.

Ownership of a man’s sperm must remain with the man who produced it. Without his specific consent (vaginal intercourse would imply consent to conceive), it should be a criminal act for anyone to use his sperm for any purpose whatsoever. The man should also be exempt from any civil liability for such use including child support.

Paternity fraud in all its forms should be a criminal act. No man should be held civilly liable, including for child support, for the theft or the fraudulent acquisition and use of his sperm. No man should be held civilly liable (including child support) without his consent for a child fathered by another man. This should include cases where the man was initially deceived into believing he was the father or the child. This crime could be reduced and/or eliminated by requiring that paternity testing be conducted on all children at birth. All potential fathers could then be tested and a determination of paternity could be made.*

As mentioned previously, the ability to abdicate parental rights and responsibilities should be extended to men. The implementation of this could be difficult; however notification of the potential father could be in the mother’s best interest should she be unwilling or unable to provide care for the child once it is born. Once a father is notified, he should be given a timeframe in which to notify the mother of his decision. This would allow the mother to use this information when exercising her freedom to choose whether or not to terminate the pregnancy or carry the baby to term, or to surrender it for adoption.

These potential solutions would also address the issues discussed in the first two parts of this series where men are ordered to pay child support for fathering children after being the victim of rape or statutory rape. Reproductive freedom is considered to be a fundamental right for women; it is long overdue that it be considered a fundamental right of men.

*Steps would have to be taken to ensure that the DNA samples and profiles would not be used for any other purpose in order to protect the privacy and rights of individual citizens.

References

Department of Job and Family Services. (date unknown).

The putative father registry. Ohio.gov.

Retrieved on 10/05/2010 from: http://jfs.ohio.gov/pfr/.