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Is Sex of Any Kind Consent to Child Support?

Surely there is almost nothing worse than abandoning one’s own children–and often their mother–because one refuses to take responsibility for one’s sexual behavior.  This is why it is a very good thing that we continue to tighten child support laws and their enforcement.

But for what sort of sexual actions must a father be responsible in this way?  Legally, all it appears that men (and even boys!) can be responsible for almost all of them:

Courts have ruled that boys who were statutorily raped by older women must pay child support. Courts have ruled that when a woman has taken the semen from a condom a man used for sex with a different woman and has inserted it in herself, the man must still pay child support. Courts have ruled that when a woman has concealed her pregnancy (denying the man the right to be a father) and then sued for child support a decade later, the man must still pay child support…Few if any men are relieved of child support obligations due to the circumstances of the pregnancy, no matter how bizarre or unjust. [Find some details on these kinds of cases here.]

And for another bizarre example, check out this case:

Phillips accuses Dr. Sharon Irons of a “calculated, profound personal betrayal” after their affair six years ago, saying she secretly kept semen after they had oral sex, then used it to get pregnant.

He said he didn’t find out about the child for nearly two years, when Irons filed a paternity lawsuit. DNA tests confirmed Phillips was the father, the court papers state.

Phillips was ordered to pay about $800 a month in child support, said Irons’ attorney, Enrico Mirabelli.

Even upon appeal, the court ruled the following:

The judges backed the lower court decision to dismiss the fraud and theft claims, agreeing with Irons that she didn’t steal the sperm.

“She asserts that when plaintiff ‘delivered’ his sperm, it was a gift — an absolute and irrevocable transfer of title to property from a donor to a donee,” the decision said. “There was no agreement that the original deposit would be returned upon request.”

And in a recent column at FindLaw, Professor and Frederick B. Lacey Scholar at Rutgers Law School, Sherry Colb, makes the following important legal and moral point:

Some say, in response, that the man, in effect, agreed to have the child when he had sex with a woman and thus risked such an outcome. On this view, a man who engages in sexual intercourse assumes the risk of becoming a father. If he wants to avoid paternity, he must abstain from sex or undergo sterilization. Because pregnancy as well as its termination have such physically intimate consequences for a woman, the man — physically separate from these experiences — loses control over paternity once he consents to having intercourse.

This argument, of course, is in some tension with the notion that a woman does not consent to maternity when she engages in intercourse.  Such tension is surely not lost on disgruntled fathers.

Indeed.  We certainly need some legal and moral coherence in our culture’s understanding of the connection between consent to sex and consent to procreation.

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15 Comments

  1. These are interesting and provocative cases. I’m not familiar with the court cases cited. The situations described are definitely sad stories that depart from the ideal depiction of married procreative love found in the norms of official magisterial teachings.

    Charles, what do you make of Sherry Colb’s blog post? First, I’m not sure why the reader should believe Phillips over Irons. How are we to know whether his version of the story is more accurate or whether this is a creative attempt to win a court case? But beyond that, I find Colb’s analysis of “involuntary paternity” overly simplistic. If the courts limit parental responsibility to those parents who intended their sexual loving to be procreative, that would seem to exclude a large number of couples. Colb says that Phillips, who says that he engaged in voluntary oral sex with Irons, did nothing that forseeably risked pregnancy “so the genetic link between him and the resulting baby is of no greater significance than that of two siblings who are wide apart in age.” What do you make of this claim? If Colb wants to absolve some parents from financial responsibility for their children because they do not intend to become parents, this would have far-reaching implications. Some might say that these cases reinforce the Church’s claim that sexual intercourse is only appropriate within marriage. And there seems to be some wisdom in the suggestion that if you want to avoid paternity, you should abstain from sex. If it is true that child support laws tend to focus on the best interest of the child, that is a good thing, right? I think the natural law tradition of Catholic sexual ethics would offer some wisdom here. But I’m curious. How would you elaborate on your understanding of the relationship between consent to sex and consent to procreation?

  2. Hello Charles,
    Firstly, let me say best of luck with your new blog.

    Secondly, I have a question. I am not sure I understand what precisely you are arguing for/critiquing. At the beginning of your post, you say, “Surely there is almost nothing worse than abandoning one’s own children–and often their mother–because one refuses to take responsibility for one’s sexual behavior. This is why it is a very good thing that we continue to tighten child support laws and their enforcement.” but then later in your post you seem to point out a sort of injustice or double standard between the fact that the a man consents to fatherhood with sex but a woman doesn’t.

    I assume that the claim that a “woman does not consent to motherhood when she has intercourse” refers to the legality of abortion, right?

    So I guess my question is, are you arguing for something other than the criminalization/illegalization of abortion? I am not here critiquing that argument, just asking for some clarification as to whether that is your argument here. Or are you asking for some sort of alteration to paternity law?

    Also, in your final statement you call for coherence in our understanding of the relationship between consent to sex and consent to procreation but you also included cases where boys were victims of statutory rape and were still compelled to be legal fathers so is your argument that only those who consent to intercourse should be legally forced to be parents?

  3. to clarify my question (after posting I realized it might have been unclear) you open by saying that child support laws should be even stricter than they already are but the body of your post is a rather convincing argument that, at least in certain cases, they are too strict.

  4. “We certainly need some legal and moral coherence in our culture’s understanding of the connection between consent to sex and consent to procreation.”

    I agree. I tend towards the “man is on warning” theory of sexual relations.

    However, nowhere in these excerpts you give is the idea put forwards that child support is just that – child support. The (semi-coherent) rationale behind all of these cases is strangely moral – it is not the child’s fault, whatever may have happened between the two parents, and the child ought to be supported. That is the only real rationale that could survive an order for child support to an adolescent who had been molested. However, despite the laundry list of things in the first excerpt, I am curious to see how incoherent child support orders ARE, in the great majority of cases, rather than how insane the margins.

    With that said, I am not sure why one should (or even could) expect coherence in legal and moral thought in relationship to anything sexual in our society, given that societal treatment of sexual morality (and most morality) is incoherent – as noted by John Haldane:

    “In questions of value and conduct, the prevailing analytical orthodoxy is that ethics is about promoting or respecting the good of persons, where that good is understood as consisting in the satisfaction of considered preferences. Putting these orthodoxies of human nature and value together yields consciousness-centered utilitarianism or, equivalently, hedonistic consequentialism.”

    Child support is a normative good thrown into the consequentialist / subjective world of sexual relations, and anything normative is bound to be jarring and cause incoherence.

  5. Cathleen Kaveny posted your blog at Commonweal which prompted my reply.

    First off, it is great to have a blog to read and offer food for thought and reflection. In that good spirit I do have to admit that I have some issues with your provocative piece,

    1. From a strictly legal point of view I am reminded of the legal dictum that tough cases make for bad law which I interpret to mean that boundary cases of the law need to be redressed in different ways than simply throwing out the law. In the vast, vast majority of cases women are tasked with the responsibility of caring for children and suing for child support is a huge hassle. You have to sit in a courtroom for hours and endure delays. Besides, many women do not even avail themselves to the formal court or legal process for child support and simply suck it up. It is not worth all the hassles, red tape, which ultimately is a big waste of time as they get nothing in return for their efforts.

    2. From a moral point of view, the trajectory of the argument appeals to a perennial caricature of women as seductresses and as out to trap men into marriages or relationships they don’t want. Or alternatively out to tempt and bedevil the holy men on their quest for sanctity. Regressive ground I think!!!

  6. While oral sex and intercourse have similar statuses in Catholic sexual ethics, the physical acts and natural results are extremely different. While oral sex is considered “sex” by some but not by others, it does not result in procreation unless extreme measures are taken (i.e., Irons). As a natural result of and the evolutionary reason for intercourse is procreation, I would agree that consent to intercourse is an agreement to paternity and fatherly responsibilities; however, oral sex does not serve the same biological/procreative purpose. I agree that the issue needs to be analyzed primarily through the lens of the child (similar to the Responsibility to Protect in the post “Initial Response to Obama’s Lybia Speech”) and that caring for the child is THE foremost responsibility of the parents, courts, and society-at-large, but I would be cautious in claiming that Phillips, who chose a sex act without the possibility of procreation, is the target of blame. While Phillips needs to be (and has the right to be) in the life of his child, and while oral sex and intercourse are both considered sex acts by Catholic moral theology, Phillips seems to unduly blamed and labeled as neglectful by the courts when he chose a sex act that did not have the natural possibility of creating new life and when Irons chose to hide the child from him.

  7. Note to George: There’s an often-repeated saying that just because you’re paranoid doesn’t mean they’re NOT out to get you. Well, just because there are unfair stereotypes of women does not mean that some women don’t exhibit the behavior of the unfair stereotype.

    What I find most appalling is the idea that a minor male who is the victim of statutory rape could be required to pay child support. I find the idea of forcing a woman who is pregnant due to rape to carry the baby to term to be unreasonable, but at least she can give the baby up for adoption if she so chooses. That a boy who is the victim of statutory rape, although he doesn’t have to experience a pregnancy, can be forced to pay to raise the child strikes me as an incredible injustice. It is holding him responsible for the consequences of his own rape.

    On the other hand (and I wish I could put this in very tiny type), I suppose if the boy wanted custody of the baby, I would be inclined to say he had rights as the father. And if he has rights (if he wants them) may he not have responsibilities (even if he doesn’t want them)? That is something to think about.

    I don’t see, in a case like this, that the law is obliged to do what is in the best interest of the baby, if that means forcing the young male to pay child support. It is true that the baby bears no responsibility for the way in which it was conceived, but I see no reason why a baby has more rights than a parent-by-rape. If a woman can give a child up for adoption, then certainly the father under these circumstances can forego the responsibility of being a parent.

  8. @George, I didn’t use that stereotype of women (which, at least in my circles, isn’t perennial…but rather seems like something from an era that has long past us by) any more than I used the stereotype of men as ‘deadbeat dads’ when I said it was important to continue to tighten laws around child support. I just think it is a very interesting question to ask “what kind of sex makes one responsible for such support?”

    @Katie. What I’m arguing for in this post is something very simple: coherence in our culture (and public argument) about what sorts of activities makes (both men and women) responsible for supporting their biological children. We are willing to go to great lengths to get men to do so, and I support these lengths and more (but, like David, would stop short of forcing boys to do so), but then let’s not say say ‘consent to sex is not consent to procreation in other contexts.’

    @Jonathon. But especially from a legal point of view, we aren’t ‘act-utilitarians’…our culture rather understands the legal and moral value of rules and principles. And I’m just asking that we apply them coherently. This has been done in many other contexts…the large social movements, for instance.

    @ Emily. I’m not sure it matters who we believe…rather, I’m interested in the courts’ rulings that it didn’t matter and that the semen is a ‘gift’ from the man to his partner in any sexual situation. That sets up an incoherency, it seems to me, between how men are expected to connect sex and support of children and how women are. Also, I see an important moral (and legal?) difference between “reasonably foreseeing pregnancy” and “having sex with the intention of getting pregnant.” Finally, I do think there is great wisdom is the Church’s teaching that sex is only appropriate in a marriage…and this discussion, especially as it shows the unfair situation into which some other conclusion puts future children, is powerful evidence of this.

  9. “But especially from a legal point of view, we aren’t ‘act-utilitarians’…our culture rather understands the legal and moral value of rules and principles.”

    I would say rather that our culture “understood” those things. I see a greater movement towards viewing law as a device to prevent others from interfering with one’s own satisfactions, and (more recently), towards a positive enabling of these so-called rights (witness Pres. Obama’s lamentation over the negative rights of the Constitution).

    While we maintain a connection between law and morality, aside from the criminal law, I think the Judeo-Christian underpinning of common law is increasingly attenuated in favor of some form of act-utilitarianism.

    Christian Smith’s work in interviewing young religious believers and finding a massive increase in “moralistic therapeutic deism” indicates to some degree that such a trend will only continue in the future.

    • What do you make, Jonathon, of the overwhelming support for a positive right to health care for those who, say, have pre-existing conditions?

  10. Charles,

    I am not sure why that wouldn’t fit in with the idea of act-utilitarianism, or perhaps the related rule consequentialism. Combine the Rawlsian idea that the government is responsible for ensuring equality of outcome (fairness, or distributive justice) with the idea that the important lens of analysis is “satisfaction of considered preferences” and you come up with the idea that government should be responsible for providing satisfaction of considered preferences for those that cannot otherwise get them.

    Now, there may be those who differ, and (of course) part of the blog itself is to work towards avoiding the “one size fits all” analysis. So, within these proponents might also be, for instance, Roman Catholics otherwise opposed to euthanasia or other forms of satisfaction of preferences.

  11. I think it certainly ‘fits’ with rule-utilitarianism (or perhaps a Singer-esque ‘two level’ utilitarianism), but I don’t think that’s what the general feeling is from people I talk to who support covering those with pre-existing conditions. They don’t make some kind of ‘best consequences’ argument…they instead talk about the intrinsic dignity of sick, vulnerable persons and what this means for our responsibility toward them as a community.

  12. I suppose it depends on who you talk to, and whether the language they are using is deliberate and considered, or learned. I certainly talk to people who use the language you describe, some who know what it means, others who (I suspect, because of their other ideological commitments) do not. The ones you speak of are likely the “within these proponents might also be, for instance, Roman Catholics otherwise opposed to euthanasia or other forms of satisfaction of preferences” of which I spoke previously.

  13. Hi Charles,
    Thanks for responding to my question. I don’t think I articulated my question with sufficient clarity.

    In order to get the type of coherence you call for, it would seem as though we would either have to make paternity laws less strict or make abortion illegal or at least less legal. Is that a fair characterization of the range of remedies available to us? If so, which are you calling for or would advocate for?

    • Hi Katie…while the point I’m trying to make has implications for abortion, it does so only with regard to the question of whether a pregnant female has a duty to support a prenatal child that is acknowledged to be a person. Abortion, as you know, has wild complexity that goes far beyond that (already complex) question. Nothing about what I said has any implications, for instance, about the moral status of the fetus or about public policy questions about abortion.

      That said, I don’t think we should limit the implications here to abortion…rather, I think the kind of connection that the laws cited above make between sex and support of children have broad implications across a host of ethical issues.

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