The courts have properly determined that a man should neither be able to force a woman to have an abortion nor to prevent her from having one, should she so choose. Justice therefore dictates that if a woman makes a unilateral decision to bring pregnancy to term, and the biological father does not, and cannot, share in this decision, he should not be liable for 21 years of support.

That’s according to Karen DeCrow, president of the National Organization for Women (NOW) from 1974 to 1979. “Or, put another way, autonomous women making independent decisions about their lives should not expect men to finance their choice.”

This page is an exploration (in FAQ form) of the idea of legal paternal surrender, which would allow men to opt-out of the responsibilities of parenthood within a certain time-frame, in order to bring them closer to women in terms of reproductive rights and options.

Sections:

Current situation Proposal: legal paternal surrender Details Consequences

(Length: 3,000 words)

1. Current situation

1.1 What’s wrong with the way things are now?

Women’s options to avoid the responsibilities of parenthood (for reasons of life goals, finances, health, etc.) are much more numerous and more robust than men’s.

Before sex, women have various forms of birth control, such as hormonal birth control, IUDs, and sterilization (tubal ligation). During sex, they can use female condoms. Very soon after sex they can use the morning after pill. Longer after sex they can generally get an abortion. After giving birth they can put the child up for adoption (without the father’s knowledge, or possibly against the father’s wishes—see stories in the National Post and The Atlantic), or make use of safe haven laws that provide a similar option.

For men? There’s sterilization (a vasectomy), condoms, and that’s pretty much it.

1.2 Abortion isn’t perfectly accessible for all women.

Accessibility of abortion is a valid issue and improvements can be made, especially in the United States. But even in the U.S. it seems clear that more women have the option than don’t. 42% of unintended/mistimed pregnancies in the U.S. are aborted (Guttmacher Institute), and we can safely assume that many in the other 58% who gave birth did so because they decided to keep the child rather than because they were unable to access an abortion.

1.3 Men’s lack of options is unfortunate, but is there anything we can do?

Aside from the disparity in birth control (due to a combination of biology, research, and regulation), the current system is a result of laws and policies allowing certain rights and options (abortion, adoption, safe haven laws) but not others. Maybe the current situation is right and maybe it’s wrong, but it’s not inevitable or the only possible set-up. There are options that we can give to men.

1.4 Why aren’t men’s birth control options enough?

Why aren’t women’s birth control options enough? Why do they need later options?

Because birth control sometimes fails. According to a New York Times article, two years of condom use results in 4% pregnancies (perfect use) or 33% pregnancies (typical use). For women’s birth control pills, the numbers are 1% and 17%.

The failure of birth control can be a mistake or intentional. In the U.S.A, 10.4% of men (almost 12 million men) reported ever having an intimate partner who tried to get pregnant when they did not want to or tried to stop them from using birth control (CDC’s National Intimate Partner and Sexual Violence Survey for 2010, page 48). If his partner lies about being on birth control, should we just tell him he was wrong to trust her? Or should we give him an opt-out (like a woman has if a man sabotages her birth control)?

1.5 If a man doesn’t want children, shouldn’t he just be abstinent and not have sex?

If this doesn’t apply to women for abortion, it shouldn’t apply to men either.

2. Proposal

2.1 What would legal paternal surrender involve?

It would allow a man to opt-out of all rights and responsibilities associated with the child (including visitation rights and child support obligations), as long as he does this early in the pregnancy, so she can know when making her decision on abortion.

2.2 Abortion is about bodily autonomy, and it doesn’t leave a child in existence to support. LPS is different in both regards. How are they comparable?

Legal paternal surrender is not the equivalent of abortion. It’s the closest equivalent of women’s multiple options after the act of sex, and some of those (adoption and safe haven laws) leave a child and aren’t about bodily autonomy. Also, legal paternal surrender doesn’t necessarily leave a child, because the woman can still abort after it.

2.3 Adoption and safe haven laws are about freeing women from childcare obligations, not about freeing them from financial obligations.

We don’t expect women who give their child up for adoption (or use safe haven laws) to pay child support to foster care or the adoptive family; most would see that as cruel! And abortion activists are concerned with it being not just available but also subsidized and cheap/free. So clearly we also care about financial obligations for women.

2.4 Child support is about the well-being of the child, not the rights of the parent.

Women who use adoption or safe haven laws (and men who are sperm donors) are not expected to pay child support, even though it would be in the best interest of the child. And we don’t (to my knowledge) turn down women trying to use adoption or safe haven laws if their decision is determined to not be in the best interest of the child.

So the best interest of the child is not the only factor in determining policy. (Although see the discussion in § 4 on whether there would really be a negative effect on children.)

2.5 How much do financial obligations really matter?

Enough that the most common reason for women having an abortion is “they could not afford a child at the time and were unmarried” (42%) (Orlando Women’s Center).

The New York Times has an illuminating article on poor men and child support. From a 2007 study, 70% of arrears were owed by people who reported less than $10,000 a year in income, and they were expected to hand over on average 83% of their income. And in some places, child support is based on what the man would be expected to earn if he had a full time job at minimum or median wage, regardless of his actual situation.

Some jurisdictions even have a policy of jailing men who are behind on payments, which traps “poor men in a cycle of debt, unemployment and imprisonment”.

“Parents who are truly destitute go to jail over and over again for child support debt simply because they’re poor,” said Sarah Geraghty, a lawyer with the Southern Center for Human Rights, which filed a class-action lawsuit in Georgia on behalf of parents incarcerated without legal representation for failure to pay. “We see many cases in which the person is released, they’re given three months to pay a large amount of money, and then if they can’t do that they’re tossed right back in the county jail.”

Another NYT article mentions that some jurisdictions also take away people’s driver’s licenses for falling behind on child support, which is almost as bad as jail for employment (depending on the availability of public transit).

So clearly financial burdens matter. Fixing the system of enforcement would help, but LPS would help even more.

2.6 Women can’t opt-out of the physical consequences of pregnancy. Why should men be able to opt-out of the financial ones?

Women are the ones to get pregnant. That’s a biological fact that we can’t change (with current levels of technology). Are we really going to punish men with fewer legal rights to make up for that? That seems vindictive, and it ignores two key facts.

First, being the ones to get pregnant gives doesn’t just give women a disadvantage (having to deal with the physical consequences of pregnancy). It also gives them an advantage: always having the final say over whether the child is born. They won’t be in a position where they want the child but their partner decides to abort it.

Second, one of women’s options, having an abortion, substantially reduces the physical consequences of pregnancy. The Orlando Women’s Center says there’s “no reason for a patient to experience pain or discomfort during an abortion procedure”.

It’s entirely valid to talk about how we can bring men up to women’s level in terms of ability to opt-out of financial consequences. We should also do what we can to further lessen the physical consequences of pregnancy for women.

2.7 Aren’t adoption and safe haven laws gender neutral? Can’t men use them too?

Safe haven laws often specify the mother or the custodial parent (page 2), who’s usually the mother. But even with laws that are gender-neutral, these options require possession of the child (and usually the other parent not knowing about the child). Men are much less likely to be in this position, and so men are generally unable to use these options.

2.8 Isn’t this about men wanting to be deadbeats and evade responsibility?

Kim Gandy, a more recent president of the National Organization of Women, dismisses LPS by saying that “[m]en have been trying to get out of responsibility for their children for years”. But this same “you had sex, now live up to the consequences” attitude could apply just as easily to women. Are women who get an abortion or use adoption just “deadbeats” who are “evading responsibility”? On the contrary, they’re more often see as “brave” and “independent” (at least among progressives).

2.9 Does this devalue fatherhood?

Making motherhood a choice for women doesn’t devalue it, and I don’t see why it would be any different for fatherhood and men.

3. Details

3.1 If the man can opt-out, isn’t the woman left alone to raise the child? What if she can’t afford it?

She can raise the child on her own if she wants to, but she doesn’t have to. If she can’t afford to raise the child on her own then she should make use of those options: especially abortion, but also adoption and safe haven laws. Remember that the man’s decision would be required well within the time period when she can get an abortion.

3.2 What if she wants the child but can’t afford it on her own? Isn’t the man denying her the right to have a child?

Is it a woman’s right to have a child, in the sense that someone who declines to provide her resources to support her in this is infringing on her rights? If that’s the case, don’t we have to say that a man who refuses to impregnate a woman who wants to get pregnant is also “denying her the ability to have a child” by not providing genetic resources? (Actually, some people aren’t too far off that. Here’s a 2006 article on The Guardian that’s skeptical about better birth control options for men because “women risk losing control of conception”—she worries that men would continue to have the option not to have children even after their partner wants to. Here’s a 2010 article from The Daily Mail opposing men’s birth control because it would “end those happy little ‘accidents’”).

To go back to the issue of money, why can’t she pick a random person on the street and say “you must pay for my child, or else you’re denying me the right to have a child”? The difference is that a random man on the street didn’t have sex with her, but to the extent that a man has special obligations because he had sex, those obligations would be to the child rather than to the woman and her life goals. (And see the discussions in § 2 and § 4 on the well-being of the child.)

3.3 What if she’s religious and doesn’t want to have an abortion?

That’s her personal choice. Just as his religious views shouldn’t limit her rights, her religious views shouldn’t limit his rights. And she still has the option for adoption and safe haven laws. Those are more painful than abortion, but if she’s against abortion then she’d be giving birth anyway.

3.4 What if she doesn’t have access to abortion?

LPS only makes sense in the context of abortion being available and accessible. Without abortion, LPS doesn’t make sense. However, the fact that abortion isn’t perfectly accessible doesn’t mean we should ignore LPS. The problems with abortion access are closer to being fixed than LPS is to being enacted (and abortion has a much bigger movement and more momentum), and so it’s very unlikely that we’re in danger of LPS being achieved first, if that’s a concern.

3.5 What about the cost of the abortion? Should she have to handle that on her own?

If men have the same opt-out ability as women, it seems fair that they should provide their share of the cost of an abortion. There are many ways to do this that depend on your political views: a fee for LPS, universal healthcare funded by taxation, or insurance regulations (in the United States) like those in Obamacare that require men to buy maternity coverage to subsidize the people who actually use it.

3.6 Would a system of LPS completely remove child support as a concept?

No. Child support obligations would still apply if the man didn’t use his ability to opt-out, just like how a woman who doesn’t make use of abortion, adoption, or safe haven laws can still be responsible for child support (in the less likely event that the man ends up with custody). For example, if a married couple has a child together and then five years later they divorce, the man is well past his ability to opt-out (because the woman is past her ability to have an abortion). If she gets custody then he would have to pay child support.

3.7 What happens if the woman doesn’t inform the man of the pregnancy in a timely manner?

It wouldn’t make sense to let her take away his option for LPS by just waiting too long to tell him. She would forfeit her right to learn his decision early on if she doesn’t allow him to make the decision early on.

3.8 What happens if the man takes LPS, the woman gives birth, and man decides he wants to come into the child’s life later on?

There are a few different options. It could be prohibited, or it could be allowed but rather harsh (requires back payments of child support), or it could be allowed but less harsh (requires him to start paying child support). Harsher approaches make sense if we want to discourage LPS except for those who are really serious, while lighter approaches make sense if we want to encourage men to come into the picture when they can. Regardless, if he is given the option then he’d need approval from the woman to add him into the child’s life (kind of like a step parent).

3.9 Would LPS even be possible in marriage?

I can’t see how it would make sense in that context, so probably not. Marriage (or some other type of official union) could be a way for a man to commit to supporting the child, and for a woman who wants a child to ensure support.

4. Consequences

4.1 Won’t giving men the ability to opt-out result in more abortions happening?

It would probably result result in more abortions, but the fact that we’ve legalized abortion suggests that we aren’t making our policy decisions based on what results in the fewest abortions. If we’re going to have abortion be legal then we have to accept that people are going to use it.

4.2 We can say that the women who can’t afford the child should get an abortion, but what happens if some don’t? Won’t this result in more children with less financial support?

A system of LPS would result in less child support money being paid. However, women would have an incentive to seek out willing fathers, and so a decrease in money from unwilling fathers might be partially balanced out by an increase in money from willing fathers, who are now more sought after. Also, because men would have an incentive to make their choice known early on, women would have earlier and more accurate information about what financial support to expect, allowing them to make better choices regarding whether to have an abortion. This means fewer women foregoing abortion because they expect support but being surprised later when the man can’t or won’t pay, making her regret her decision not to abort.

It’s hard to know how all of these factors would balance out. It would likely rely heavily on cultural attitudes. A policy of LPS, combined with social taboos on women giving birth to children they can’t afford (maximizing the effect of having extra information when deciding how to abort) and taboos on men using their option for LPS unless they really needed to (minimizing the loss of child-support money being paid) could plausibly reduce the number of children born with inadequate financial support, while giving men the option to take LPS when they really need it.

4.3 What about the developmental and behavioural benefits of having a father involved in the life of the child?

These exist, but if a man is in the position where he wants to use his option for LPS, he probably wasn’t going to have significant involvement as a father who’s present in the child’s life. And LPS could actually improve the situation, because if an unwilling father can’t be made to contribute financially, a woman who wants to have a kid has incentive to find a willing father for financial reasons, and he’s much more likely to want to be involved in the child’s life.

In addition, it seems that people tend to feel more enthusiasm and engagement for things they choose than things they don’t, and so making parenthood a choice for men could mean that those who decide to take it are more enthusiastic and more invested than they would be if they were forced into it through circumstances and a lack of legal options.

4.4 What if men stop becoming concerned about birth control, like wearing condoms?

We certainly don’t want to see that happen, but it’s entirely manageable. Women can take charge themselves and use one of their options like the pill, or insist that the man use condoms, or for extra safety they can use both (especially for casual encounters where the concern includes STDs and not just pregnancy).

4.4 What about the demographic issues (population decline) of having more abortions?

This is potentially a valid concern, depending on one’s view of demographics and what the ideal population size is, but it applies to abortion itself just as much. If a growing population is very important to you then you probably don’t support abortion, either.