Academic

Natural Fathers?

By Julie Shapiro

Having once again been interrupted by current events, I return to my earlier topic–can we separate parentage from genetic linkage. I’ve gone at this in steps, starting by considering a sperm donor and working my way to a one-night-stand guy.

In that last post I was exploring the differences between a sperm donor and the one night stand guy. It’s easy for me to say with confidence that it is better that the donor not be a father. I’m considering arguments for treating the one night stand guy differently. They are both genetically related, so no grounds for distinction there. And curiously, as to the intent of the man, the donor actually does intend to create a child and the one-night-stand guy almost assuredly does not. While that’s a difference, it’s one that hardly seems to leave to treating the one-night-stand guy as a father when you don’t treat the donor as a father.

That lead me to think about another difference–the woman’s intent. A woman using a sperm donor intends to be a parent. A woman in a one-night-stand usually doesn’t. The last post noted the oddity of having his status as a parent turn on her intent, but there’s more to be said, so I’m returning to this.

I want to focus, somewhat cautiously, on the importance of being able to choose to become a parent or, perhaps more saliently, to choose not to become a parent. I take it as a given that women should have the right to control their reproductive destiny. For me that means that women must have meaningful access to birth control and to abortion. (I realize, of course, that this hardly describes reality, but I will nonetheless reason from this position.) Meaningful access to abortion means a woman can choose not to become a parent even when she has become pregnant.

What about the corresponding freedom for men? A man has no right to insist that a woman have an abortion, even where it is quite clear that he is the source of the sperm. (To be clear, I think that’s as it should be.)

I know various explanations for this asymmetry. Often when we discuss this in class my students focus on the man’s opportunity to choose whether or not to engage in sex. And while it is true that a man can always ensure non-parenthood by not engaging in procreative sex, that’s not an entirely satisfying answer. For the woman can choose to engage in procreative sex and can, as a result, become pregnant, and can still avoid becoming a parent by electing to have an abortion. For a man, once he chooses to engage in sex, the rest of the chain of events is out of his control. So while this “he already chose” argument is not without some validity, it’s also not totally satisfying.

Suppose instead we accept my proposal that the man is not a father to any child that results from that one-night-stand? Then it seems more reasonable that he would have no say in whether a child is born or not for the woman’s decision to have (or not have) an abortion does not determine his parenthood. To put it a differently, he has less interest (at least legally speaking) in the outcome of her pregnancy and so he has a much weaker claim to a voice in the decision-making.

I think this suggests a larger point, though it hardly establishes it: Assigning paternity to a man by virtue of his genetic connection alone supports men’s control over women. It gives men a powerful claim to an interest in children and therefore in the lives of women who are raising children that they do not have to earn. We think of this as a natural state of affairs even as we think of the man as a “natural father”. I think it is time to more closely examine this particular state of nature.

-Julie Shapiro (cross posted to Related Topics)

Full post as published by Feminist Law Professors on February 11, 2008 (boomark / email).