Male hazards

On Valentine’s Day of all days, Glenn Reynolds linked a fascinating article (by fellow University of Tennessee law professor Michael J. Higdon) titled “Fatherhood by Conscription: Nonconsensual Insemination and the Duty of Child Support.” Quipped Glenn,

I was thinking of writing an article on this subject someday, entitled “Ejaculation As An Ultrahazardous Activity.”

As most lawyers know, “Ultrahazardous Activity” equals “Strict Liability.” Depending on the consequences of ejaculation it certainly can be ultrahazardous.

From the abstract:

Nathaniel, was a California teenager who became a father in 1995. The mother of Nathaniel’s child was named Ricci, and at the time of conception, she was thirty-four years old. Nathaniel, however, was merely fifteen. Although Nathaniel admitted to having sex with Ricci voluntarily about five times, the fact that he was under sixteen years of age at the time made it legally impossible for him to consent to sexual intercourse. In other words, under California law, Nathaniel was not only a new father, but was also a victim of statutory rape. Nonetheless, in a subsequent action for child support, the court held that Nathaniel was liable for the support of the child who was born as a result of his rape. According to the court, “Victims have rights. Here, the victim also has responsibilities.”

Much of the law relating to child support is based on the fact that it is typically in a child’s best interest to receive financial support from mothers as well as fathers. So strong is this precept that courts will hold a father liable for child support even in the face of wrongful conduct by the mother. Thus, child support is essentially a form of strict liability with the justification being that the child is an innocent party, and, therefore, it is the child’s interests and welfare that the court must look to in adjudicating support. At first glance, such a standard seems eminently reasonable. Few would argue with the proposition that, if a man voluntarily has sex with a woman and a child results, then he should be liable for child support. The problem with the court’s current approach, however, is that the standard is so strict that even those men who never consented to the sexual act that caused the pregnancy are nonetheless liable for the support of the resulting child. These men include males who became fathers as a result of statutory rape and also adult males who became fathers either as a result of sexual assault or having their sperm stolen and used by a woman for purposes of self-insemination. In all such cases, these “fathers” have been held liable for child support.

If we follow out current legal reasoning, the age of the father is utterly irrelevant; even if a woman managed to seduce and become pregnant from the sperm of a fertile 11 year old boy, the kid would still be stuck having to pay child support! Laugh if you want, but that’s the law.

The author proposes treating involuntary underage fathers in a manner similar to the way sperm donors are treated, and I thoroughly agree.

But when I read the above, I was reminded me of a man I knew who fathered a child when he was under eighteen, and reached his majority as a “deadbeat dad” and a bureaucratically hunted man. He was a homeless drifter who would often live in tents, and I put him up for awhile, hearing his drunken tale of woe over and over again. While I felt sorry for him, whether he deserves sympathy is not the point here. What I have noticed is that for whatever reason, society has an obsession with holding men responsible for fathering children, whereas the mother tends to be considered a “victim” whose children have a right to be cared for by the state. Fathers are expected to work and contribute money to support their children, while mothers are not. Instead, they are seen as automatically entitled to child support from the state.

The state pays, and demands that the father contribute. But no similar demands are placed upon the mother. 

Another thing which strikes me as manifestly unfair is that the mother at all times has the right to opt out of motherhood — whether by aborting her fetus while pregnant or placing her child for adoption after it is born. The father has no such option. He is simply stuck with fatherhood.

This is in a country which enshrines the right to “equal protection under the law.” 

You’d almost think they want to make being male an ultrahazardous activity.

UPDATE: Notwithstanding the strict liability doctrine, I just found what appears to be a loophole in the law. Fathers who are undocumented aliens appear to be able to escape legal scrutiny entirely, at least according to the laws of one state:

Stephanie Hernandez gave birth to a baby girl in Nashville’s Baptist Hospital on August 31, 2007. She was not married at the time. No father’s name was listed on the birth certificate, meaning that the father had no legal paternity rights or obligations. 

Deadbeat Dad?  Nope. Her fiance, whom she later married, was at her side the entire time. Hernandez, a US citizen, and her undocumented immigrant fiance, were prevented from placing his name on the birth certificate by Tennessee law. The law requires an unmarried dad to produce government-issued ID to appear on the birth certificate, but this is denied to undocumented immigrants.

Meanwhile, Tennessee appears to have no qualms about immigration status when it comes to child support collections. Calls to a local child support office and a Tennessee observer knowledgeable about these issues confirmed that an undocumented mother can indeed collect child support.

So, the mom gets child support but because the father is not a citizen, he escapes liability for having to contribute, and won’t have to worry about being a deadbeat dad.

So maybe it’s not so much maleness that’s risky, so much as American maleness.