Essay: The Law of Economics and of Parenthood: How Gender Inequality Impacts Social Welfare

I just finished going through this paper.

The notion of child support is historically rooted in contract law. As Blackstone points out, one of the terms of the marriage contract is to provide for the care of the children of the marriage. That term of the contract survives termination of the agreement. However, that obligation is created through contract - mutual agreement.

When illegitimate children became a problem, the quickest and easiest solution was to create a equitable remedy that looked like child support, but was something less. It had to be something less, because the King of England, for example, could never have been said to "agree" to supporting an illegitimate child he had with one of his maids. Such a child was wanted by the maid, but not by the King. Therein was the dilemma. Should the King have to pay for the child according to his means - what he was able to provide? If not, then does that mean the King should not have to pay for the child at all and allow it to die? The "moral obligation" doctrine created a duty for the father of such a child - as a matter of public policy, not law - to provide for the child's "necessary" care. The equitable compromise was that the child was an innocent victim of the mother and father's disagreement. It would be unconscionable to allow the child to die, simply because the father did not want it. It would however, be unfair to allow the mother and child to enjoy the full breadth of the father's support for a child he never consented to. The father's obligation ended with basic shelter, clothing, and food. The father had no obligation to save the child from illness, nor to fund the child's medical treatment. The father had no obligation to provide education to the child, nor to fund the child's education and lifestyle choices. The nature of the equitable "moral obligation" doctrine and the contractually-created "child support obligation" were materially distinct.

As the paper points out, the trouble started when the courts misunderstood and misapplied the two doctrines - bleeding the two together. This first began with trying to treat illegitimate children and legitimate children the same. A basic tenant of family law is the best interest of the child standard. However, even when determining the best interest of the child, children are not entitled to the world. In fact, all that children are "entitled" to are parents that are neither abusive nor neglectful. Although this standard is difficult to satisfy in the context of abortion, it is easily satisfied in the context of adoption. When a mother leaves her child in the hands of the State, or adopts the child out, she is being neither abusive nor neglectful of the child. If the mother cannot provide for the child, she is actually doing the right thing by allowing the child to enjoy life in the hands of people who are able to financially care for the child, and perhaps the child is more likely to find itself in the care of two parents - as part of a loving family. This was the unstated dynamic that the natural law Blackstone was referring to created with respect to children. However, the law now created the same child support obligation for parents who never consented to providing financially for the support of the child.

Roughly around the same time illegitimate children received the right to receive child support, sans contract or consent of the parent, the Supreme Court decided on Roe v. Wade. Although the case had nothing to do with child support, at least directly, it actually did more damage to the family unit, child welfare, and men's rights than it did good to women's rights. In the years following Roe v. Wade, the number of abortions women had in the United States actually fell significantly. However, what began to rise significantly were the number of single-parent, specifically, single-mother homes. Births to single mothers began to skyrocket, with more than 75% of births, in some demographics, occurring from single mothers, bringing children into single mother homes. Roe v. Wade, in conjunction with illegitimate children cases had created a child welfare crisis.

Women now had it (and still have it) both ways. If a woman wanted to be a mother, all she needed was a man's sperm. It didn't matter if the man was dead or alive, whether the man actually consented to being a father or not, or whether the sperm was obtained through rape or fraud. When it comes to sperm, the law imposes strict liability. Thus, the only thing standing between a woman and her dreams of being a mother or having a little baby isn't a man's consent, isn't her ability to afford or support the child, isn't obtaining a man's consent to support her child, but merely obtaining a man's sperm. However, if a woman did not want to be a mother, she could abort, or she could not list the father on the child's birth certificate and adopt out or leave the child in the hands of the State. The choice is entirely hers. In other words, she can "elect" whether she wants child support liability or not.

Thus, a man cannot force a woman to be a mother against her will. Only if she wants to enjoy parental rights will she ever elect to assume parental liabilities. However, a woman can force a man to be a father against his will. If she wants to enjoy parental rights and has possession of his sperm, all she needs to do is get pregnant and not elect to terminate her parental rights (through abortion, adopting out, or leaving the child at a safe haven). Doing so will impose parental liabilities on the man, which he need not first consent to, and which he cannot escape - even for a child he never wanted. This is not equality. This is not what feminists were fighting for. True feminists would be crying in their grave at this tragedy, for the law creates the same injustice for men as it sought to destroy for women. The law does more than prevent men from oppressing women; it allows for women to oppress men. When the law speaks of meaningful rights, it is talking about women. When the law speaks of liabilities, it is referring to men. The law gives women alone both the power and choice of creating parental rights, destroying parental rights, assuming liabilities, and imposing liabilities. The law gives men only the obligation to pay for the choices a woman will ultimately make, and enjoy parental rights only incidental to a woman's desire to be a mother.

This is not equality; this is gender-based, sex-based, biology-based slavery. As the paper puts it beautifully, nature has endowed women with the power to create life. Men cannot try to take Roe v. Wade away from women. The choice of whether to create or not create new life is a power that is exclusively feminine, and the law cannot properly ever attempt to allocate such rights equally between men and women. However, parental rights and liabilities are not a creature of nature, but a creation of the law. Accordingly, the law has no reason to create or perpetuate inequality between men and women. The same way a woman cannot be forced to be a mother to a child she does not want is the same way a man should be allowed to not be a father to a child he does not want.

The paper proposes a viable alternative framework for the child welfare, child support, and parental rights and liabilities model. It is definitely worth the read and forwarding to your political representatives for consideration!