In a letter to Reason magazine (not yet available online), Brian Sorgatz writes:
It is hypocritical of the government to guarantee a woman’s right to an abortion while forcing a man to pay child support against his will. As Karen DeCrow, former president of the National Organization for Women, said, “If women have the right to choose if they become parents, men have that right, too.”This is an argument to be taken seriously, although I’m not sure whether I agree with it in the final analysis. There is a real incongruity in the way women’s and men’s obligations to potential future offspring are treated. Think of it this way: Both a man and a woman have the opportunity to avoid parenthood by abstaining from sex. But once they’ve had sex, the woman has at least one additional opportunity to avoid parenthood – by having an abortion. The man does not have this option. If he has sex that results in conception, and if the woman chooses to give birth and raise the child, the man is on the hook for child support – whether or not he wanted to have a child at the time of sex, whether or not he favored an abortion, whether or not he wanted to give it up for adoption. I’ll consider a few responses to this line of argument that I don’t think quite work, and then a response I think is more viable.
Paternity suits should be abolished. Every argument in favor of them is a mirror image of an argument against legalized abortion. Compare: “If men don’t want to support their offspring, they should use condoms” with “If women can use the pill, why do they need a right to an abortion?” And when so-called deadbeat dads are labeled irresponsible, it mirrors the anti-abortionists’ stereotype of women who want abortions as irresponsible sluts.
1. The obvious response is to say, “He accepted the risk of having to pay child support when he had sex.” But as Sorgatz indicates, this is an argument that abortion rights advocates always reject when it comes to a woman; “She accepted the risk of having a child when she had sex” is not considered a valid argument against abortion. To put it another way, the woman does not accept that risk when she has sex; the incongruity demands justification.
2. Another response is to note the potentially dire consequences of Sorgatz’s policy. Wouldn’t we end up with lots of children being raised by single moms, without any financial support from their fathers? Sounds plausible. Then again, the incentives would change. Knowing they could not obligate their sexual partners to pay child support, more women might (a) refuse to have sex in the first place without some contractual promise of support, (b) use more reliable birth control methods, or (c) have more abortions. On the other hand, they might just rely more on public welfare – indeed, reducing the welfare burden is one major reason the government works so hard to identify deadbeat dads and make them pay. However, the fact that the government has established exploitable welfare programs is not the fault of men who choose to have sex. Blaming such men for creating a burden on the welfare system is a little like blaming the Gap for letting your teenage daughter run up a monstrous credit card bill. If you wanted to avoid that burden, you should have refused your daughter the credit card (or given her a card with a low credit limit). And besides, the welfare burden argument could be directed just as plausibly against women who choose not to have abortions, thereby creating more future welfare cases.
3. Another response notes that repudiation of child support is not thoroughly analogous to abortion. An abortion prevents a child from ever coming into existence, whereas the repudiation of child support denies funds to a child who already exists. If we think of child support as an obligation owed to the child, not to the child’s mother, then the situations differ because an abortion avoids creating the source of the obligation. There are two difficulties with this argument. First, our legal system does not really treat the obligation to support one’s child as unavoidable. If both parents choose not to keep the child, it can be put up for adoption, and neither biological parent will be obligated to provide for it – even if no one but an orphanage will take it. Yet when the biological mother decides to keep the child, the father is financially obligated. Thus, the woman has the ability, post-sex, to create a financial obligation on the man.
Second, from an economic perspective, there is something perverse about imposing liability on the party who has the least opportunity to prevent that liability from existing in the first place. The man has one opportunity to prevent the occurrence of a child (abstaining from sex), while the woman has two (abstaining from sex, having an abortion). In general, if you want to give people the right incentives, you want to place liability on those who have the greatest capacity to reduce its incidence. In the current system, where liability is distributed over both parties, the woman who chooses to carry a child to term (and keep it rather than give it up for adoption) imposes an external cost on whoever else has to pay for it – either the father or the state. The result is an inefficiently small number of abortions.
4. In my opinion, all the above responses are inadequate, although #3 comes close to satisfying me. But here is a response that I do find (relatively) convincing. Think of sexual activity as creating an implicit contract about how to deal with any consequences that arise. Ideally, the contracts would be explicit: people about to engage in coitus would specify in detail the terms of their intercourse, including the obligations of each party vis-à-vis any pregnancy that might arise from the act. If the parties could not reach mutually agreeable terms, they would not have sex. Of course, this would never happen, because people about to have sex are not inclined to stop long enough to have a summit meeting, write up an agreement, call a contract lawyer, etc. In other words, transaction costs are too high, so people rely on a vague, implicit contract instead.
In this kind of situation, the legal system must decide the default terms of the contract. I suggest it should do so by asking the following hypothetical: If people did take the time to agree on a contract, what would the terms be? We can never know the answer for sure, in part because different couples would likely reach different contracts, while an implicit contract by its nature is one-size-fits-all. But the economic theory of bargaining gives some hints as to the likely outcome. Contracts rarely impose perfectly symmetrical duties; instead, what the parties give and receive depends on their threat points, meaning what their positions would be if no bargain were reached. In this case, there is good reason to believe that women have a stronger threat point. If popular stereotypes are correct, then men (in general) desire sex more, and thus they are willing to make more concessions to get it. Even if they are dealing with a particular woman who wants sex a great deal, she likely has many outside options (other willing partners), and that competitive pressure will tend to reduce the man’s relative bargaining power. Finally, the potential downside of the bargain, pregnancy, is a more serious burden for women, and therefore more favorable terms will be necessary to induce women’s cooperation.
In short, if women and men wrote contracts before sex, it seems pretty likely that women would successfully demand a variety of concessions from men. The resulting contract might look a lot like the status quo. You might characterize the contract as having three signature lines – one for the man, and two for the woman. Each person “signs” the contract once by having sex. But no child, and no parental obligations, result unless the woman “signs” a second time by not having an abortion. Essentially, the contract includes an option to be exercised at a later time by one party. This is quite common in the world of business – stock options, for example, give the owner a right (but not obligation) to buy stock at a specified price at a later date – so I see no reason to rule them out of sex contracts.
One implication of the contractual approach I’ve outlined here is that the status quo ought to be modified to allow explicit “opting out” of the one-size-fits-all contract. The courts of law cannot avoid imagining implicit contracts from time to time, because people often engage in transactions without written terms, and even written contracts often leave some contingencies unaddressed. But an implicit contract only establishes a default, which can usually be overridden by an explicit contract with different terms. In the present case, anyone would be able to demand a modified and explicit contract as a pre-condition of sex. If the other party refused, then either (a) they wouldn’t have sex, or (b) they’d have sex anyway, in which case the default rules would apply. In practice, I suspect this system would look very much like the status quo, because most people would continue to have sex without lengthy negotiations. But the right to opt out would free the system from the troubling appearance of coercion and discriminatory treatment observed by Sorgatz.
P.S. To anti-abortion folks: Yes, I'm pro-abortion. But I've had that argument too many times for it to be interesting anymore, so this post takes the correctness of the pro-abortion position as given.