« Connecting the Wrong Dots | Main | Transparency »

August 02, 2013

Friday Inflammatory Debate Topic

From the comments following a post by Ann Althouse:

I have a question, Pr. Althouse. Would you view it as wrong for a man to ask women to sign a contract stating that she would not seek child support for any children resulting from sexual relations? Would such a contract be enforceable? (Assume it is properly signed and witnessed etc.)

We stopped reading the discussion there (no time), but have a question:

On what equitable basis should the legal system allow a mother to unilaterally sign away half her child's legal right to child support? It is called "child support" and not "maternal support" for a reason. And if you think women already exercise way too much power over what the abortion crowd like to call reproductive rights, why should we give them any more?

It never ceases to amaze us how everyone discusses unintended pregnancies as though the child has no interests that might deserve protection. We see an awful lot of conservatives do that, and often they're the ones who think abortion is murder. So they clearly realize that unborn children are people, too. Unless, of course, their so-called rights inconvenience the wrong parent.

Amazing. One might almost be justified in concluding that this whole balancing competing interests thingy isn't as simple as it seems on the Internet.

Posted by Cassandra at August 2, 2013 07:17 AM

Trackback Pings

TrackBack URL for this entry:
http://www.villainouscompany.com/mt/mt-tb.cgi/4722

Comments

[Devil's Advocate][inflamatory]
On what equitable basis should the legal system allow a mother to unilaterally sign away 100% of her child's right to life?

Is the former really a worse thing for the legal system to allow than the latter?
[/inflamatory][/Devil's Advocate]

It seems to me, that the answer to both questions should be "None at all".

Posted by: Yu-Ain Gonnano at August 2, 2013 11:05 AM

I'm with YAG on this, with the usual exception re: abortion.

Posted by: Grim at August 2, 2013 11:27 AM

Even if the answer to both questions should be "None at all" the reality is that abortion is legal and completely at the discretion of the mother. So the question being addressed in Althouse's posts is whether giving the mother total discretion over whether the child is born should mean giving the father total discretion over whether he will support the child financially. Do two wrongs make a right?

I have said in the past that I would, in fact, give unwed mothers total power over and responsibility for any children they bear and I would have no problem with a law that did just that; it would make the situation clear to both the potential mother and the potential father. However, for a man to claim that if *she* gets to choose whether to bring the child to term then *he* gets to choose whether to support the child descends to the level of "she started it" in the context of a situation that cries out for adult behavior; reveals an appalling lack of common decency toward the child (and, frankly, the mother - and why is the guy sleeping with such a manipulative, calculating, immoral monster in the first place); and reeks of revenge, retribution, and cowardly weaseling out of a situation the guy got himself into knowing exactly what the consequences could be.

Men know sex can lead to pregnancy; know women have total control over whether to bear the child; and know they can be on the hook for child support. Whining about reality doesn't change it. Change the law; get a vasectomy; avoid sex with grasping, manipulative money-grubbers; or take a risk.

As for the proposed contract, a later commenter at Althouse says it would be invalidated, claiming similar contracts with regard to artificial insemination have been. It would, however, probably take care of the problem anyhow since I suspect any woman confronted with such a contract would rethink her decision to have sex with the man presenting it.


Posted by: Elise at August 2, 2013 12:16 PM

a later commenter at Althouse says it would be invalidated, claiming similar contracts with regard to artificial insemination have been. It would, however, probably take care of the problem anyhow since I suspect any woman confronted with such a contract would rethink her decision to have sex with the man presenting it.

*snort* :)

I'm wondering what consideration (from the man) would support the supposed "contract"? I'm not sure merely providing sex would constitute the legal consideration needed for enforcement :p

Posted by: Cass at August 2, 2013 12:25 PM

Monsieur Devil:

re -

On what equitable basis should the legal system allow a mother to unilaterally sign away 100% of her child's right to life? Is the former really a worse thing for the legal system to allow than the latter?

It's not really so much a question of "what's worse" in my mind as, "If you recognize the interest of the child in the first case (i.e., it's a person with some set of rights) why on earth would you not recognize them in the second?

Posted by: Cass at August 2, 2013 12:29 PM

"If you recognize the interest of the child in the first case (i.e., it's a person with some set of rights) why on earth would you not recognize them in the second?

[Devil's Advocate]
And if the courts do not recognize the interest of the child in the first case (i.e. that it's not a person and without even so much as the right to live, how on earth could the court recognize a right to monetary support?
[/Devil's Advocate]


It would, however, probably take care of the problem anyhow since I suspect any woman confronted with such a contract would rethink her decision to have sex with the man presenting it.

Any woman of quality would. But I bet you some of those women Tiger Woods had affairs with still would. Let's face it, if they were women of quality, they wouldn't have been sleeping with a douchebag married man in the first place.

That said, I do agree with you, Elise & Cass, that this type of "contract" should not be enforced. Believing, as I do, that this non-consenting non-adult, does have enforcable rights that can't be signed away by a third party, if you don't want the responsibility then keep your knees closed and your pants zipped up.

That said, in a nation putitively under the rule of law, I do struggle with a legal structure that basically says this non-consenting non-adult sometimes has rights and sometimes doesn't and that these sometimes rights are only enforcible against some people but not others.

*Once* the legal system declares the child has no interests and no right to life in and of itself, the legal system is stuck with that premise. It is not up to the lower judges to decide if the law is good policy or not. It is not up to the lower judges to decide if the law is moral or not. Even if it were wrong, the legal system must act as if it were correct.

So, from a legal standpoint, this isn't a question of two wrongs making a right. Legally, the first "wrong" isn't.

This is the type of problem you get when you start with a wrong premise.

Posted by: Yu-Ain Gonnano at August 2, 2013 01:26 PM

a legal structure that basically says this non-consenting non-adult sometimes has rights and sometimes doesn't and that these sometimes rights are only enforcible against some people but not others.

What the law really says is that this non-consenting, non-adult has no independent rights until he or she is born (or gets to 26 weeks or to 20 weeks or survives for a while outside the womb or whatever cut-off we're using this week in this State). Thus the unborn non-consenting, non-adult has no rights which can be enforced against anyone. Once the non-consenting, non-adult is born (and in some cases, survives for a while), he or she has full rights which can be enforced against his or her father.

The bottom line in our current legal system is that the unborn are not people so they have no rights.

Posted by: Elise at August 2, 2013 10:31 PM

I'm wondering what consideration (from the man) would support the supposed "contract"? I'm not sure merely providing sex would constitute the legal consideration needed for enforcement :p

It would certainly be interesting to hear the argument in court over whether the sex provided actually constituted something of sufficient value to make the contract enforceable. :+)

Posted by: Elise at August 2, 2013 10:33 PM

The bottom line in our current legal system is that the unborn are not people so they have no rights.

That is evil, and must be corrected. Until it is, the law is wicked on this point and should be accorded no deference. It's certainly no basis for beginning a conversation on what the law should do with other analogous matters, unless we want to endorse -- as you say -- two wrongs making a right.

Posted by: Grim at August 2, 2013 11:20 PM

Since men are routinely deceived into pregnancy and then denied access, communications and authority with and over their developing children, the question being asked is not "Should children be considered people." That's a huffy red herring.

The question is simply to remove the free option of deception, and the subsequent financial and emotional exploitation of the man, by making the woman responsible for any deception. After all, only she knows if she is lying.

Further, as matters stand, there *is* a state-enforced contract being imposed on the man: if he has sex with a woman who deceives him, he will have a financial obligation but will not have a parenting opportunity. He will go to jail if he doesn't hold up his financial obligation; the woman will be rewarded for her deception. So here the hypothetical is just a speculation of pre-empting a status quo condition that provides power and options to a woman

I know four women who have deceived men into pregnancy, and they are all highly educated, professional women. Post-pregnancy they went to court to get money while denying access and any functional form of custody. The men are ATM machines.

Turning around on the snark about how the contract suggestion would be a great antidote to any sexual impulse, so would this response by the woman: "Absolutely not. I may or may not decide to use you as a sperm donor and 18 year income stream; that's the way the world has always worked. Think of it as bringing a frisson of risk and danger to our little interlude!"

So the question is both simple and instructive, because it immediately reveals respondents' opinion on the inequities the state has applied to fathers, and often reveals a feminist astonishment that any man would have authority as well responsibility for a pregnancy decision (or the decision to end a pregnancy).

The comment above to the effect that a man should sterilize himself if he doesn't want to pay for an act of deception by a woman is contemptible. It is a great example of the sort of thing that is rendered absolutely clear if we reverse the sexes: I rather doubt respectable people are walking around telling single mothers that they forgot to sterilize themselves, so pay for their own children that they had outside of a functioning partnership.

Posted by: BuenaVista at August 3, 2013 09:01 AM

Since men are routinely deceived into pregnancy and then denied access, communications and authority with and over their developing children...

What is the evidence to back this assertion up? I know it happens, but "routinely"? That requires more than an assertion. FWIW, the reverse happens too - birth control sabotage is used by men, against women (I expect with similar frequency). It's just that we don't hear that argument made when the topic is men's reproductive rights, just as we don't hear the male side when feminists are yammering on about women's reproductive rights.

Birth control is - or ought to be - a non-delegatable responsibility for any adult who does not want children.

The comment above to the effect that a man should sterilize himself if he doesn't want to pay for an act of deception by a woman is contemptible. It is a great example of the sort of thing that is rendered absolutely clear if we reverse the sexes: I rather doubt respectable people are walking around telling single mothers that they forgot to sterilize themselves, so pay for their own children that they had outside of a functioning partnership.

Nice way to ignore the fact that such a decision harms an innocent 3rd party - the man in question's own child, whose conception could have been easily prevented.

Getting a vasectomy was one of several suggestions, not the only course of action. And for men who plan to sleep around (and know they do not want children), it's not a bad option. I would say the same for a woman who wants to sleep around and knows she never wants kids.

When my husband told me he only wanted 2 children, I had my tubes tied. I actually wanted more kids, but I believe marriage is for life and decided that made the most sense even though it went against what I wanted. Oh, and my doctors refused to perform a tubal ligation without my husband's permission, so that doesn't only happen to men :p

Men who don't want children can also use condoms, or better yet condoms plus spermicidal foam. Used properly the respective effectiveness rates are 97 and 99%. Refusing to sleep with women one doesn't know well (otherwise known as "avoiding risky sex") is a good option too.

There's no such thing as a right to consequence free sex.

Posted by: Cassandra at August 3, 2013 09:53 AM

That's a huffy red herring.

What Cassandra said. (I have to say that the image of a huffy red herring made my morning.)

In the absence of the incredibly icky case of a woman stealing a man's sperm via dumpster diving for a used condom, it is awfully difficult to deceive a man into pregnancy. Perhaps there are nifty drugs out there that render men incapable of deciding whether to have sex without rendering them incapable of having it but I don't know what they are and I doubt many women have access to them.

So here the hypothetical is just a speculation of pre-empting a status quo condition that provides power and options to a woman.

Giving power and options to women doesn't mean leaving men with no power and no options. It just means leaving men with power and options they don't want, things like not engaging in sex with women they don't know well; being diligent about birth control themselves; refraining from sex altogether; working to change the existing laws; getting a vasectomy; taking a clearly defined chance of ending up in an 18-year commitment. (Eighteen years? Really? What, your kid gets out of high school and it's sayonara, baby?)

If the issue is really that men can become "ATM machines" with no "access, communications and authority with and over their developing children" then it seems to me what men should be complaining about is not being used as a funding source but being denied parental rights. Perhaps the proposed contract should state that the mother and father will share custody of and all (not just financial) responsibility for any children resulting from sexual relations. That might actually be enforceable and would, I'm sure, take care of men's concerns in this area.

Posted by: Elise at August 3, 2013 12:01 PM

I'm addressing presumptive paternity, paternity as a property of the state, the consequences and the illogic of women who say, "Well, you shouldn't have slept with her then" when a woman deceives a man into pregnancy.

I'm not addressing your personal experiences -- since they have no bearing on the issue Althouse raised and you commented upon here. I'm also not addressing the impact on the child, because that is a separate issue. (Though I did note that women who deceive men to get pregnant are obviously not seeking a relationship with the man, and the odds that any child born into such circumstances will have cooperative partners for parents is approximately zero.)

So I get it: you believe in presumptive paternity and that fraud or theft in sexual relations is a risk all men must absorb. You also believe that the frequency with which someone commits this fraud or form of theft is relevant, which is an odd response given that you seem interested in the discussion topic -- just not a differing point of view on the topic. (FYI, the CDC says about 10 percent of men experience reproductive coercion.) (It's also an odd point of view for a woman to take given that sexual assault was once deemed very rare, in contrast with today.) If a woman sabotages a mans birth control, or lies about her own, again, this is the penalty the man must absorb: it's one of the costs of having sex. Last, if the woman straight up steals the man's sperm, as this woman did, again, tough luck dudes. Abstain or sterilize yourself, because otherwise you will go to jail if you are defrauded into pregnancy and decline to pay for the privilege. http://www.nbcnews.com/id/7024930#.Uf0eN-Bc6Z8

This is illogical on multiple levels, but mostly because it attempts to defend a double standard of the status quo on the basis of feelings and personal anecdote. On a policy basis it asserts that fraud and theft are appropriately protected as women's rights

It is illegal in most jurisdictions to defraud a sexual partner wrt to STD or HIV transmission; it is illegal in California and Tennesee to commit "Rape by fraud" -- lying to secure non-coercive sex. It is now rape in many jurisdictions to have sex with a woman who's had wine with dinner (i.e., she's no longer capable of informed consent.) My point is that the abstraction of the parental waiver -- which aims to take rewarded deceit out of the sexual relationship -- seems very consistent with these established attitudes toward other forms of deceit in sexual relationships. To be consistent you'd need to reject them too. But I doubt you would.

Posted by: BuenaVista at August 3, 2013 12:03 PM

That is evil, and must be corrected. Until it is, the law is wicked on this point and should be accorded no deference. It's certainly no basis for beginning a conversation on what the law should do with other analogous matters, unless we want to endorse -- as you say -- two wrongs making a right.

I'm pretty sure I agree with your conclusion, Grim, although perhaps not with your reason for reaching it. The fact that abortion is legal does not and should not inform the discussion about child support. The argument that because a woman can choose whether to carry her child to term therefore a man can choose whether to support his child always seems to me to be, at bottom, quite ugly, coming down to something like: Don't look at me for money; you could have had an abortion and this problem wouldn't exist.

I support first trimester abortion and always have but I have to admit that the current casualness about abortion is coarsening. We lose something of our humanity when we move away from "legal, safe, and rare" to "NBD".

Posted by: Elise at August 3, 2013 12:16 PM

Elise, you're all over the map, but I guess you're saying that "oopsie" pregnancies are, and should remain, the privilege of women. Because that's just the way it goes. Don't like it, don't have sex or get sterilized, because women should not be expected to bear responsibility for their decision to lie about contraception or steal sperm. The intellectual contortions women practice -- it's the same on the left or the right -- to fault men for women's reproductive fraud are extreme.

And that's fine. Most women feel that way. If you have boys and they grow up to be abstinent men, until they're virgin-married and they are then happy to assign unilateral control of their reproductive decisions to their wives, that's a completely reasonable position to take. I just take a more equitable view of the subject, and think men and women should be responsible for their own behavior.

Going off on the tangent about how my hypothetical man is a lousy dad is just a shaming diversion, and since you don't know who I am or what kind of dad I am, and I'm not discussing the right of a man to be a deadbeat, I'm not going there. It is amusing, though, that you both admit that single fathers are hosed by the US family system, and then recommend that it's their problem to fix -- as though, again, a woman's privileges under the current regime are both obvious and beneficial to her, while the penalties imposed on men are not her problem. (They are, as marriage rates are collapsing, but that's another thread as well.)

Posted by: BuenaVista at August 3, 2013 12:18 PM

It's a new position for me, Elise, because my reasons have changed.

As a teenager I used to be pro-choice, in the sense that I knew I was against abortion but figured I could prevent being responsible for any by being responsible for my own sexual conduct. While I thought abortion was wrong, I also thought that it was properly a moral rather than a legal issue.

As an undergraduate, I was introduced to formal philosophical arguments about abortion, and came to believe that the status of the child was unknowable. Thus, I became entrenched in the belief that abortion was always immoral, but precisely because we couldn't be sure we were killing a human being. In other analogous circumstances (say, deer hunting), we would be thought to be doing wrong if we showed reckless disregard in killing what might or might not be another human.

But now I have been studying metaphysics for a long time, and I have reached a conclusion that -- while not directly related to abortion at all -- convinces me that we can know, and indeed cannot reasonably reject, that the child is an individual human being from the moment its genetic code is set. In a very short form, the question has to do with natural laws: what they are, and where they come from. What they seem to be is not logical laws, but consequences of forms of organization. (For example, water will dissolve salt because they are arranged in a form that is compatible -- but it will only dissolve so much salt because the pattern will fill up. Thus it is not a logical law that water dissolves salt, but a consequence of their form of organization.)

That means that "to be X" is merely to have the form of organization of "X". A human isn't the matter that composes his or her body, in other words, because that matter -- oxygen, iron, say -- is constantly being replaced with other matter with the same form. What makes you human is that the new stuff is being put in the right order, the right form, so that you are constantly being made and remade from the environment.

Thus an individual human being is simply a human being with an individual form -- say a genetic code, or DNA. And the child has a form that is unique and individual, and human.

This isn't really an argument about abortion, as I said: it's an argument about nature, and began with questions like gravity and what it means to be a 'natural kind' like salt, or why nature seems to be lawlike in its behavior. The conclusions I drew thinking about those things simply have consequences for the debate about when a child is an individual human being.

I think there is no doubt about the child's individuality nor its humanity. The only question left is when individual human beings should be able to be killed at the discretion of others, without recourse to the protection of the law.

Posted by: Grim at August 3, 2013 12:43 PM

I don't actually remember saying men needed to remain virgins until marriage. There's a lot of territory between "don't have sex until you're married" and "don't sleep with people you don't know well". However, we could argue about this all day so let's not.

Instead, tell me how the law should read, BuenaVista. If a woman gets pregnant without her partner's consent, the father has no responsibility at all, in any way, for the resulting child? If a woman gets pregnant without her partner's consent, the father can force her to have an abortion? Either of these remedies only applies if she somehow "defrauded" him? If so, what do you mean by defrauding: any time either party's birth control fails; only her using birth control and it failing; her actually lying about using birth control; her stealing his sperm? And what is the standard to determine whether she defrauded him: what he claims, what she claims, a third party witness?

What law do you want to see enacted?

Posted by: Elise at August 3, 2013 12:49 PM

I think there is no doubt about the child's individuality nor its humanity. The only question left is when individual human beings should be able to be killed at the discretion of others, without recourse to the protection of the law.

This echoes a discussion I had recently with a friend about people who claimed abortion was murder from conception but were willing to allow exceptions for pregnancies resulting from rape and incest. (Yes, I know, not everyone in that camp does but some do.) She believed allowing these exceptions meant they didn't *really* think it was murder.

I didn't think of the response at the time but later thought that the rationale behind it comes down to some form of justifiable homicide or perhaps self-defense. I'm not saying that everyone should agree abortion in the case of rape or incest is allowed even when all other abortions are not; I'm just saying that I think that framing provides a logically/naturally/morally coherent framework for considering abortion murder but still allowing exceptions for certain extreme cases.

All of which may or may not actually relate to your argument. I do not always follow you well. :+)

For me, a very powerful discussion of abortion is one by Megan McArdle. Her discussion of personhood is haunting:

A really, really long post ...

Cassandra, I don't want to turn this into another big fight about abortion so if I'm drifting too far off topic, please let me know and I'll shut up.

Posted by: Elise at August 3, 2013 01:02 PM

I must be very difficult to follow, given how often I hear that. I'm sorry for that. I certainly don't mean to be. In this case it's just that I'm condensing 10,000 words on natural philosophy into a brief blog comment.

Nevertheless, I think you understood me fine based on what you follow up with. The problem with self-defense as an analogue is that there actually is a legal process associated with ensuring that it was not misused. I think we might reasonably establish a similar one here.

Whether rape or incest satisfy 'self-defense' concerns people might disagree about, of course; I don't think they do. But when the pregnancy will kill the mother if continued, clearly self-defense is a strong analogy. The personhood of the child need not be compromised to accept abortion in these cases.

Posted by: Grim at August 3, 2013 01:23 PM

Pardon me, let me clarify this:

Whether rape or incest satisfy 'self-defense' concerns people might disagree about, of course; I don't think they do.

I think they clearly satisfy self-defense standards if the deadly force is being used against the rapist. It's only when the deadly force is directed at the child that I don't think they can meet the standard.

Posted by: Grim at August 3, 2013 01:25 PM

This straw man actually reveals that you don't understand what this matter is all about:

"I don't actually remember saying men needed to remain virgins until marriage. There's a lot of territory between "don't have sex until you're married" and "don't sleep with people you don't know well"."

Knowing someone well is a meaningless concept when the subject is the law awarding fraud and theft privileges to a woman, privileges that are available to her at her exclusive options. Your comment is just a rehash of the Jezebal-style taunt, "It's your fault, loser, if you don't know someone well enough to know that she'll turn on you why are you involved, etc." You're saying, in other words, that in the 70% of the cases of divorce that are initiated by women it's the guy's fault for marrying her because he "didn't know her well." It's also a economically illiterate comment because it ignores the fact that humans respond to incentives and getting paid $25K a year for 18 years constitutes a meaningful incentive.

Yes, I think men and women should be able to sign contracts that resolve how they are going to handle expected or unexpected pregnancies. It won't happen, just as prenups now are increasingly litigated and tossed out; feminism creating a class of special pleaders. But why should a woman have the right to impose paternity and expense on a man she has lied to? We don't reward fraud in any other human activity. It's pretty bizarre the way women of all stripes think this is normal, if the activity is sexual relations. Essentially, it confirms what the CDC says: 10 percent of births involved coerced/defrauded men.

The rest of your post is just a series of straw men and red herrings as you speculate on some sort of thinking that I'm not offering. I entered this conversation because I think it is completely normal for two adults to have the right to contractually determine how they handle a planned or unplanned pregnancy, and given how the law treats coerced paternity now it seems like a great idea for men, women and children. It is interesting (here as elsewhere) to see the same talking points from women:

a. it's his problem
b. don't have sex then, not my problem you believe women
c. get sterilized then
d. he's a fool to go out with a liar
e. what about the children!
f. he's obviously a deadbeat dad, shame him
g. not all women are like that
h. it's not fraud if it involves a man's DNA

None of these responses look at the question of making both men and women responsible for their deceit, in the matter of creating a human being. They're simply avoidant. I speculate that women love having this power over men, which is fine. If you have boys I'd spend sometime discussing the matter with them, but that's a personal perspective

I don't believe in abortion (where's that coming from?) but beyond that I don't comment on it publicly, though here I'll say that coerced abortion under any circumstances is a monstrous idea.

Posted by: BuenaVista at August 3, 2013 01:31 PM

I think they clearly satisfy self-defense standards if the deadly force is being used against the rapist. It's only when the deadly force is directed at the child that I don't think they can meet the standard.

Requiring a woman (or, worse yet, a girl) to carry to term a child conceived in incest or rape seems to me intolerably cruel. There are women who do so and do it with an open heart and I admire and respect them greatly but not all women are capable of holding up under those circumstances. I understand the child is blameless and does not deserve to die because of the actions of his or her father. But I also understand that continuing a pregnancy that arose in those conditions will be brutally difficult for many women, to the point of doing lasting psychological damage.

Posted by: Elise at August 3, 2013 02:38 PM

...seems to me intolerably cruel.

I think it's at least as cruel to steal the child's entire life, of course. But let's look at your answer in light of the analogy you had proposed. You're suggesting that the law is cruel to protect the child's life, if the cost is the woman's psychological damage. That's a little different from the standard we normally apply with self-defense, whereby psychological (as opposed to physical) damage does not ordinarily justify lethal force.

Here's a thought experiment that may be helpful: say that, in a few years, it becomes possible to construct an artificial womb that can successfully bring a child to term from very early. Now victims of rape or incest need not carry the pregnancy to term, but can be free of it without killing the child.

It seems intuitive to me that we might endorse a right to be free not to carry such a pregnancy to term without endorsing a right to kill the child. Some might say now (though I obviously would not agree) that since it is impossible to pull those two issues apart, we can decide in favor of the woman's right to be free of the pregnancy even though the exercise of that right costs the child his or her entire life. Others in other jurisdictions might say that the child's right to his or her life outweighs the mother's right to be free of the pregnancy, though recognizing that her right is being violated, provide some tangible compensation for her suffering.

But then we have a standard that might someday allow the child's right to be expressed, when the technology improves. Someday we might hope that both the mother's right and the child's right can be fully expressed. And that seems to me like what we ought to want, once it is possible.

The question, though, is whether the mother (and father) can be compelled to pay for the child as a mother and father would ordinarily be. Well, the father should be unable to do so if we've done our job, because he will be dead or in prison. Asking the mother to support the child to adulthood would surely qualify as cruel on your terms, if asking her to carry the child for nine months does.

So we would need some answer to that problem, if it is unacceptably cruel to allow the child to impose on the mother. Adoption and charity might make up the difference in many cases, of course.

Posted by: Grim at August 3, 2013 04:42 PM

Someday we might hope that both the mother's right and the child's right can be fully expressed. And that seems to me like what we ought to want, once it is possible.

I agree this would resolve this issue.


Asking the mother to support the child to adulthood would surely qualify as cruel on your terms, if asking her to carry the child for nine months does.

So we would need some answer to that problem, if it is unacceptably cruel to allow the child to impose on the mother. Adoption and charity might make up the difference in many cases, of course.

It is my understanding that a woman can today be relieved of all responsibility for and rights with regard to a child, simply by signing the appropriate papers giving the child up for adoption. If I'm right about that then we already have the answer to the problem. We don't need anything new. If I'm wrong then we would need to create such a mechanism.

Your artificial womb experiment does, of course, raise the issue of human surrogacy. Can we use human surrogacy now to handle this problem? I'm not familiar enough with the mechanics of it to know but if we can - or shortly will be able to - that's another possibility.

Posted by: Elise at August 3, 2013 05:09 PM

That's a good point, and one about which I am likewise not well-informed. But it's a possible alternative to endorsing abortion in these cases, respecting both the child's right to life and also the mother's right to be free of a responsibility to carry a rapist's child to term.

Posted by: Grim at August 3, 2013 05:15 PM

Observations:
1. Explosive topic, but even tough issues can be discussed (argued) by people of good cheer and civility.
2. Gotta say Elise is spot on %1000 percent correct about 'not having sex w/ someone you don't know well.'
- while the main thread here has focused on the high level issues of abortion, and the 'rights' of the parties involved, there are actually *lots* of good reasons to avoid casual sex:
. . . STD's, including some really awful incurable die horribly variety
. . . the significant chance of emotional distress (yes, for men as well)
. . . the *huge* issue of a potential child; which doubles back to the issues of abortion and child support ($$$). I think it's better to focus on the issue of parental responsibility.
. . . and last, but not least, if you're willing to bang/be banged regularly by whoever is handy & willing, then it is unlikely that the very real physical joy/pleasure of sex will be 'special' with your spousal unit. Sex can/should be a great way to deepen a relationship by providing mutually satisfying pleasure.

Best Regards,

Posted by: CAPT Mike at August 3, 2013 07:33 PM

Elise, I so rarely disagree with you, but I think this is one occasion. I agree, of course, that's it's intolerably cruel to inflict a pregnancy on a woman through rape or incest. So cruel that I could almost be persuaded that the penalty to the man should be that we harvest his organs to pay for a lifetime of child support before we put a bullet between his eyes. But I just can't get from there to killing the child. Which is not to say that I don't understand and deeply empathize with the overwhelmed mother who checks out emotionally and says just get this thing out of me, I refuse to think about it. At that point, it's a tiny fetus, a potential baby, someone she's never seen, and hard to take seriously in the storm of tragedy that's just hit her. But if she were equally overwhelmed and deserving of sympathy and about to kill a 3-month-old infant as a result, I'd still want to step in to save the infant even if I didn't want to punish her.

Turning to the other old, old argument we're seeing her: I'm not sure I'll ever be persuaded that a man can be released from obligations to his own offspring by the duplicity of the woman he chose to have sex with--not even if she's some kind of master con artist. (If she knocked him out and extracted his sperm by surgery, that's another matter.) The problem doesn't seem to be that a guy too often finds he's pledged a lifetime of honorable commitment to a sexual partner he believes he knows well and can trust, only to find she's a world-class grifter who set him up so she could steal his child and extract child-support for 21 years. The classic problem in the real world is a sexual fling or casual marriage inspired by a superficial attraction ("she's gorgeous! I'd like to schtupp/marry her!"), followed by the astounded realization that her good looks don't make her a principled partner or mother. It's the rough equivalent of a woman who is shocked to the core to find that the guy with a flashy convertible might run out on her if she gets knocked up.

Posted by: Texan99 at August 4, 2013 09:39 AM

The problem with allowing men to escape their parental obligations towards children they've fathered (even in the case of fraud, which at best involves negligence in the use of birth control and at worst involves active refusal to use it) is that - just like rape accusations - there's almost NEVER going to be any evidence to prove the allegation of fraud.

It's not as though people don't lie about sex all the time (especially when the negative consequences of same surface). How are courts supposed to establish that a woman "stole" a man's sperm?

The ability to create life is an awesome power. If you don't want to be a parent and if you're old enough to have sex, you ought to be old enough to prevent innocent people from being hurt by your decision to do so.

And honestly, how does that even happen? How freaking hard is it to get up and go to the bathroom and flush the durned thing down the toilet? Women trust the wrong people (or are negligent) all the time, and there are serious consequences for doing so: rape that can't be proven in court and usually goes unpunished, or pregnancy.

I don't advocate changing the law to make it so all women have to do is lodge an accusation in order to send someone to jail for rape. That violates common sense. Our whole justice system is based on the presumption of innocence and guilt based on evidence that meets the standard.

Why on earth would I - would anyone? - want to change the law so all a man has to do is lodge an accusation of birth control fraud/duplicity and he can skate away from his responsibilities?

It's the same standard, and it means BOTH men and women have to exercise personal responsibility. NO ONE gets to not use birth control (or use it negligently). Even pregnancies that end in abortion are negative consequences. Abortions aren't free - neither are pregnancy tests. And there is a psychic cost to deciding to kill a life growing within you.

Sorry, but I have zero sympathy for guys who think they should be able to sleep with anyone they want to, not use birth control at all (or use it carelessly), and shrug off their duty to the innocent child that is conceived as a result of their fecklessness.

I think exactly the same of women.

On the other matter, though I really don't want to get into a debate over abortion, I see a real difference between ending a pregnancy long before the fetus is sentient and murder. With great moral reservations, I can't see prosecuting women who choose to end a pregnancy swiftly, at the beginning, before the fetus can feel pain or looks anything like a human being for murder. And that's really what we're talking about. In the case of rape or incest, it gets even worse - we'd have to prosecute rape and incest victims who ended their pregnancies with murder. This is the logical conclusion of treating a tiny cluster of cells exactly the same as a human baby that can survive outside the womb) as a full-fledged person.

Do we really want to give the state that much power? Do we really want such rigid and inflexible laws?

I can't overstate my moral reservations about where I come down on this, and I pray that I will never be either certain or comfortable with my position. But it wasn't lightly arrived at. Frankly, there's only a hair's breadth of daylight between "fully human from the moment of conception" and the Catholic church's position that using birth control at all is a sin.

IMO, that's really the only completely consistent moral position on conception/life/the humanity of the unborn that makes any sense to me.

I have absolutely no trouble understanding Grim's and Tex's positions. But I think that talking about cruelty to a non-sentient cluster of cells doesn't make much sense. I oppose later term abortions for many reasons, but one of the strongest is my sense that it is indeed cruelty to a being advanced enough to feel pain and even quite possibly fear.

But I have difficulty with the notion that a birth control method that prevents an egg and sperm from joining is OK, but somehow just a few seconds later if we stop two joined cells from subdividing, this is cruel or murder. There are birth control methods that prevent a fertilized egg from implanting itself. If we believe that fertilized egg can experience cruelty and has a soul, then these methods are murder.

And what about ecotopic pregnancies? They end a human life, too.

For all these reasons, cruelty can't be the deciding argument for me. In any case, I think it considerably less cruel to intervene at that point than to force (not allow, because she always has that choice, but force) a girl or woman who was raped to carry a pregnancy to term. I would hope if I were in that position, that I'd have the courage and grace to choose life.

But the idea of using force in this instance horrifies me.

Posted by: Cassandra at August 4, 2013 11:02 AM

In case there's any doubt as to where I come down on the original question (should we allow women to unilaterally contract away a future child's right to support from one of its parents), I think such a contract would almost certainly fail two tests:

1. Lack of consideration - to be enforceable in court, contracts require that both sides give something up. It's not apparent to me what the man gives up here. Possibly he gives up something he doesn't want (visitation) in return for a release from his duty to the child (NOT the mother).

But I don't see how one person can give away something that doesn't even belong to them?

2. It's a contract against public policy. Our public policy is very clear that parents have a duty to support their children. Any contract that encourages men to be careless about birth control because won't be held accountable for the support of human beings they create has got to violate the well established idea that parents have a duty to their children.

Posted by: Cassandra at August 4, 2013 11:14 AM

The truth is I agree with you about abortion at a very early stage, or at least I agree nearly enough that I wouldn't dream of interfering in anyone else's decision about it. That is, I think it's a perilous path and by no means a morally or psychologically neutral step, or one without dire consequences to the relationship between the parents. Still, there's no way I equate it with a later abortion, especially an abortion at or near viability. Termination of an ectopic pregnancy (by definition early) is potentially tragic and wrenching, but it's simply nothing like Kermit Gosnell territory or the shattering horror of having to abort a late-term pregnancy that genuinely threatens the mother's life. There we're getting into an area that's a lot more like having to smother your child so his cries don't alert the Nazis to your whole family's hiding place in the attic: you don't easily recover from that, no matter how necessary or justified it may seem to be.

Posted by: Texan99 at August 4, 2013 07:00 PM

Tex and I have a very similar position on rapists, at least forcible ones, whom I hope will be dead before they are in any position to support the child (although I like the suggestion about organ harvesting them).

But I don't agree, obviously, that how people feel is a very relevant concern. You're interested in whether the child might feel fear or pain; it seems more justifiable to you to kill them before they might than when they would.

To me that sounds like saying that it's only right to rob someone when they are asleep, so they won't be frightened at the time. Or, even more, like it is proper to kill the sleeping person while you rob them (of their entire life, in the analogy), so they won't have to feel fear or pain later when they wake and realize how much danger they were in.

The child is going to have the awareness in time, just as the sleeping person will have it in time. It isn't better to kill someone while they sleep: in fact, if you're going to kill someone for your own reasons, you ought to look them in the eye.

Posted by: Grim at August 4, 2013 08:37 PM

Tex and I have a very similar position on rapists, at least forcible ones, whom I hope will be dead before they are in any position to support the child (although I like the suggestion about organ harvesting them).

You may hope all you wish, but the number of rapists who are killed for raping a woman in America is vanishingly small and I don't see that changing any time soon.

As to the cruelty aspect (your word, and the one I was specifically responding to) of abortion, the word has a very specific meaning. You may have meant to use another word, but it simply doesn't fit very early abortions. Abortion may well be morally wrong for other reasons (I've already conceded that). I'm fairly certain that it is. But "cruelty" isn't one of them:

Cruelty:

1. Causing pain or suffering.

2. Having or showing a sadistic disregard for the pain or suffering of others.

The idea that it's cruel "to steal the child's entire life" can only be true if the child is aware it has a life and a future. It presupposes a victim aware enough to understand what's going on, and moreover, to suffer pain because of that awareness. That isn't even true of a newborn baby, yet most of us understand we shouldn't kill newborns for other reasons.

It also wouldn't be true of giving someone a lethal injection while they were sleeping - if they're not aware they're dying and feel no pain, it's not "cruel". It's still wrong, though.

Posted by: Cassandra at August 4, 2013 09:23 PM

As to the cruelty aspect (your word, and the one I was specifically responding to) of abortion, the word has a very specific meaning. You may have meant to use another word....

It was Elise's word originally. I wouldn't have chosen it even in her context, because the law she was critiquing was pointed at saving the life of the child -- not at inflicting suffering. Thus, the intent of the law couldn't be cruel.

The idea that it's cruel "to steal the child's entire life" can only be true if the child is aware it has a life and a future.

I don't think that's true at all. You can treat ants cruelly. They don't have much awareness, and may not even experience pain in any conscious way. But you still are doing something wicked, and children who do this are rightly called to account.

Posted by: Grim at August 4, 2013 09:59 PM

You can treat ants cruelly. They don't have much awareness, and may not even experience pain in any conscious way. But you still are doing something wicked, and children who do this are rightly called to account.

Grim, we're debating the meaning of a word. Sadistic and cruel are related words. Both connote taking pleasure in the suffering of others. I very much doubt that most women who have abortions take pleasure in the thought that they are causing suffering.

The problem, as it relates to the abortion rights movement at least, is that they don't even entertain the possibility that the baby might suffer (or even that there's intelligent life involved). Wicked and cruel, on the other hand, don't have the same meaning. One can be wicked (or do something wrong) for all sorts of reasons having nothing to do with cruelty.

The wickedness in killing a bunch of ants is debatable (and on point, here). People have a tendency to consider the pain/suffering of other life forms - as well as any "rights" they may have - in direct relation to their hierarchy on the sentient life continuum. Everyone sees what's wrong with killing a puppy.

Few see any moral problem with killing an ant or a cockroach. Or uprooting a plant. Or squashing a slug. Delighting in doing so indicates a depraved nature, but killing a bug isn't something most people would call immoral.

Likewise, we treat all sorts of even advanced life forms differently, depending on the motive in killing them. So most people think it's OK to kill a mammal for meat. Many think hunting for sport is cruel and immoral, and others don't. Our moral sense seems to be 'evolving' in that regard, probably at least in part because we can go to the store and buy packaged meat that was likewise killed ...by someone else.

There are even people who think it's "cruel" to hunt overpopulated mammals who are starving.

Nonetheless, the definition of "cruel" is either that one causes pain/suffering or enjoys doing so or acts with reckless disregard for having done so. If there is no suffering, then there can't be cruelty. The suffering of the victim is a necessary element. There may be other moral wrongs (failure to respect the sanctity of life, for instance) but there we have the problem of people failing to respect the sanctity of life in all sorts of contexts every single day (eating meat, squashing bugs, etc).

So maybe it's only human life that must be respected? OK, what's human and why should human life be respected more than the life of an intelligent animal like a dog or a horse or an elephant or a dolphin? There's no real question in my mind that most people acknowledge some sort of hierarchal ranking here, if not in theory, then definitely in practice.

We're not supposed to talk about it because it's unpleasant but that doesn't change the fact that this is actually the way most people think of life. People want bright lines, but there aren't many on this topic at least. It's hard to think of a single rule that we can apply consistently here.

Posted by: Cass at August 5, 2013 07:06 AM

Lot's of good comments, that I don't have time to address right now. But I did want to address this:

Thus the unborn non-consenting, non-adult has no rights which can be enforced against anyone.

This is not correct. That bastard in Cleveland was to be given the death sentence (before the plea agreement), not for the kidnappings, beatings and rape of those three girls, but for the murder of the unborn children. The court certainly held that they had rights that may be enforced. If the unborn children had no right to life, then he could not have murdered them.

This is what I mean by "sometimes Rights". If the dad ends the pregnancy then it's murder. If the mom does it, it's just the removal of a worthless lump of cells.

Posted by: Yu-Ain Gonnano at August 5, 2013 09:55 AM

Grim, we're debating the meaning of a word. Sadistic and cruel are related words. Both connote taking pleasure in the suffering of others. I very much doubt that most women who have abortions take pleasure in the thought that they are causing suffering.

Right, I agree with that. Let's go back and review how we got here, before we fight about something we don't actually disagree about (like we usually do).

Elise said this:

Requiring a woman (or, worse yet, a girl) to carry to term a child conceived in incest or rape seems to me intolerably cruel.

I responded:

I think it's at least as cruel to steal the child's entire life, of course.

Now, I don't think lawmakers who try to protect the lives of children by passing laws against abortion are being "cruel" in the sense of wantonly wishing to cause suffering to women who are rape victims. I think they're motivated by a legitimate interest in protecting the child.

Insofar as laws like this are "cruel," then, it can only be because they completely dismiss the woman's legitimate interest. That could be construed as a kind of cruelty, and in fact the only kind in which I think the word can properly apply.

So, by reading Elise as meaning "cruel" in that sense, I was simply doing her the honor of assuming the best possible argument from her. I assume she can't mean that the lawmakers really just want to hurt rape victims. She could, though, mean that they are hardening their hearts against her legitimate claim to prefer another cause they care about more.

It is in that sense that "it is at least as cruel to steal the child's whole life." It is exactly the same thing. You would be utterly dismissing the child's legitimate interest -- indeed, every interest he or she could ever have -- in favor of the woman's interest. You must harden your heart against the legitimate claims of the child, every claim to every joy he or she might ever have, in preference to the woman's claim.

As we went on to discuss, I think the woman's claim is really legitimate. I thought we came up with a reasonably good compromise position in that discussion, in fact, pointed at trying to find a way to honor fully both the woman's legitimate interest and the child's.

Now if you want "cruel" to mean something different, that's fine -- it's a word with several shades of meaning. In the context of that discussion, though, this is what I took it to mean because those other shades wouldn't be appropriate to the initial use. (Not, that is, unless like the propagandists from 2012 you believed that every Republican lawmaker secretly hates and wants to hurt women; but I assume that none of us here in fact thinks that is the case. They are failing to consider her interests fairly, but I don't think it's because of any hatred for women that they do it.)

Posted by: Grim at August 5, 2013 09:57 AM

Lot's of good comments, that I don't have time to address right now. But I did want to address this:

"Thus the unborn non-consenting, non-adult has no rights which can be enforced against anyone."

This is not correct. That bastard in Cleveland was to be given the death sentence (before the plea agreement), not for the kidnappings, beatings and rape of those three girls, but for the murder of the unborn children. The court certainly held that they had rights that may be enforced. If the unborn children had no right to life, then he could not have murdered them.

This is what I mean by "sometimes Rights". If the dad ends the pregnancy then it's murder. If the mom does it, it's just the removal of a worthless lump of cells.

After I wrote that, I wondered if anyone would spot the flaw. I agree that is a giant hole in our thinking about abortion. I think that the McArdle piece I linked to provides a big piece of the puzzle here: unborn children are the property of the mother, subject only to her will. She can dispose of them as she wishes but no one else can. (That's why when I used the term "independent rights" in my early comment.)

I don't think I've ever read a pro-abortion writer on the topic of whether causing an undesired miscarriage should be considered murder and, if so, why. I would be interested to do so if anyone knows of such a writer who has addressed the subject rigorously.

Posted by: Elise at August 5, 2013 11:18 AM

Okay, I swear the italics were there in Preview. Everything up to "worthless clump of cells" is me quoting YAG. Sigh.

Posted by: Elise at August 5, 2013 11:19 AM

Although. I think the issue of whether causing an unwanted miscarriage is murder ties back into my friend’s argument. Her position was that if you say abortion is murder but you allow exceptions for rape and incest then you don’t really believe abortion is murder. My (belated) response was that there is a way to hold that position in a logically/morally consistent way: the concept of self-defense or justifiable homicide.

So it seems to me there are two ways to justify abortion. One is the idea that abortion (particularly in the first 3 months) does not end a human life; it merely ends a clump of cells or the potential of human life or however one wants to think about it. If one takes that position, then there is no way causing an unwanted miscarriage can be considered murder.

The second way is to say that abortion does end a human life but not allowing a woman to have an abortion violates her right to bodily integrity and that right to bodily integrity must be given equal weight with the life of the unborn. Thus taking the life of the unborn is a form of justifiable homicide: one is preserving the right to bodily integrity by sacrificing the life of the unborn. Using that justification one can easily claim that for a woman to have an abortion is okay but for someone else to cause an unwanted termination of pregnancy is wrong because the someone else has no competing interest that outweighs the life of the unborn.

This second view also allows for the “no abortion except for rape or incest” position. Here the competing right is not to bodily integrity but to something along the lines of cruel and unusual suffering. One can get an abortion to avoid the woman’s extreme suffering at having to carry a child conceived in rape or incest to term so, again, taking the life of the unborn is a form of justifiable homicide.

Posted by: Elise at August 5, 2013 12:07 PM

I know this will be disjointed.

Re: coercive pregnancies

Not really sympathetic.
1) If you don't want children, it's your responsibility to make sure that doesn't happen. And that goes for both men and women.

2) As for the law "rewarding" the fraudulent party, the solution seems to be to get custody yourself. That removes any "reward" to the fraudulent party without further harming the child. Which, if you've been defrauded, would likely be sufficient, especially since civil courts don't require "beyond reasonable doubt" just "more likely than not". If you didn't want custody, see 1) above.

3) As for one gender using this crime more than the other, well, I bet if you looked, the vast majority of that 10% of defrauded men are poor black teenagers given the illegitamacy rate in that community. Not exactly a population ripe for financial exploitation. So I highly doubt that that is the motivating factor.

In the absence of the incredibly icky case of a woman stealing a man's sperm via dumpster diving for a used condom, it is awfully difficult to deceive a man into pregnancy. Perhaps there are nifty drugs out there that render men incapable of deciding whether to have sex without rendering them incapable of having it but I don't know what they are and I doubt many women have access to them.

Well, the first is done by lying about taking birth control pills. This type of fraud typically shows up in fairly long term relationship.

For the second, it's called alcohol. :-) Or at least, as some women have claimed when the shoe was on the other foot.

Can we use human surrogacy now to handle this problem?

I don't think so. Surragacy, today, is done prior to implantation. By the time the victim knows they are pregnant it is too late.

(Eighteen years? Really? What, your kid gets out of high school and it's sayonara, baby?)

After 18 years, the support would go directly to the child, not through the mother.

There are birth control methods that prevent a fertilized egg from implanting itself. If we believe that fertilized egg can experience cruelty and has a soul, then these methods are murder.

We actually decided against using an IUD for this very reason.

And what about ecotopic pregnancies? They end a human life, too.

In this case, it really isn't a question of ending a human life. A human life will come to an end one way or the other. The only real question is will it be one or two. An ectopic pregnancy is a real, imminent, and reasonable threat to the life (or grave bodily harm) to the mother. A self-defence analogy seems to work here.

Re: Rape induced pregnancy. Horrific all the way around. There is no answer that does not involve the use of force against someone: either the death of the child by allowing the abortion or the threat of jail for the mother (and doctor) by not allowing it.

Posted by: Yu-Ain Gonnano at August 5, 2013 12:10 PM

I never thought very hard about whether it was OK to terminate a very early fetus until I was facing the option of fertility drugs and in vitro fertilization. I found I couldn't face the idea of getting 8 fertilized embryos and discarding 6 or 7 of them. Which is not to say that I want to prevent someone else from doing it, but it stopped being possible for me when it became concrete instead of theoretical. This is not a question of cruelty for me, exactly; my decision may well have meant that a lovely baby was never born who might otherwise have been. I'm just more comfortable never getting one started than having to flush one down the toilet, even at an incredibly early stage. That wasn't ever how I thought about it when I was younger and badly wanted not to become pregnant.

Posted by: Texan99 at August 5, 2013 07:24 PM

I found I couldn't face the idea of getting 8 fertilized embryos and discarding 6 or 7 of them.

I'm not at all sure I could, either. Cruelty has nothing to do with it for me - it's more of a moral sentiment than a reasoned position in my case. I can see how someone might come to the same position for very different reasons.

I can't really explain what bothers me about the idea because (IMO) my objections aren't completely rational. The closest explanation I can come to is that deliberately creating life knowing in advance that you'll end up extinguishing it is too casual a treatment of life.

Though I tend to take a hard line on the duty to use birth control, I also recognize how often it fails even for older, married folks. There's a reason I had my tubes tied at 23 after we decided our family was complete. I am absolutely certain that, had I not done so, I would have gotten pregnant at least one more time (and possibly more than once). I don't think I could have used birth control successfully for another 25 or so years without ever screwing up.

When you apply the failure rates of even the most successful b/c methods to the number of times you'll have sex in 25 years, the math is hard to argue with. That's one reason I believe the duty to use b/c is not something either party can ever delegate if they are serious about not having children.

Over any longer time period, the odds will catch up with you. None of this is rocket science, either.

Posted by: Cassandra at August 6, 2013 05:59 AM