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.