Tuesday, March 29, 2005

Seminal Intent

Appalling: This story illustrates a real problem with child support law:
Dr. Richard O. 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. [emphasis added]
If your intuition is the same as mine, it says this is very wrong. To put the intuition in words: the child would not have been conceived were it not for the unilateral decision of Sharon Irons to impregnate herself. Phillips should therefore bear no liability for the outcome of Irons’s choice.

But a court disagreed and decreed that Phillips should pay child support. Irons claims to have gotten pregnant “the old-fashioned way,” and maybe she’s telling the truth. But as a legal matter the judge said how the child was conceived was irrelevant. Why? Because it was his semen, end of story. (Here’s one account of the arguments in court.) The case is bizarre, but not entirely unique. The “interests of the child” doctrine has led to similar conclusions in similar cases, according to one op-ed. For example, male victims of statutory rape have allegedly been forced pay child support. (I can’t vouch for the accuracy of the examples used.)

The driving force behind decisions like these is the “interests of the child” doctrine, which says the child is entitled to financial support regardless of anyone’s culpability in creating the child. Of course, we want children to be taken of. But that doesn’t justify holding someone responsible solely because his DNA is involved. If the goal were simply to assure financial support for a child, we could – with as much justification – pick a male name randomly out of a hat and require the lottery “winner” to pay child support. I suspect most people would be uncomfortable with this procedure because the “winner” didn’t create the child. But the same is true of Richard Phillips (assuming he's telling the truth), as he participated in an activity that will never, without deliberate and subsequent action on someone else’s part, lead to pregnancy.

The result is not just unfair, but also inefficient. Holding people liable for harms they haven’t caused gives people an incentive to do too little of the liability-triggering activity. An analogy: Suppose you stop a stranger to ask directions, and a few minutes later he gets hit by a car. He sues you for damages, and the court agrees, even though you did nothing to increase his likelihood of getting hit. What incentive does this give to future people in your position? They won’t ask for directions as often, leading to more time wasted by lost people (and their long-suffering female companions). Similarly, holding men responsible for their genetic offspring, even when (as Phillips claims in this case) they did not cause the offspring to come into being, gives them an incentive to engage in less oral sex, mutual masturbation, and other activities that do not create the risk of pregnancy. It also gives them an incentive to take excessive precautions when they do engage in sexual activities (such as flushing condoms down the toilet, thus creating a risk of clogging to avoid allowing the condom's contents to stick around).


Blar said...

I think that the inefficiency you talk about is pretty negligible. The probabilities are too small to have much of an impact on anyone's behavior. It just adds a teeny marginal expected cost to having any kind of sexual activity with a crazy lady.

This law might even have a net effect of increasing efficiency. Court cases can function a lot more smoothly if they can just look at the DNA, without going through the difficult task of verifying who's telling the truth when the man and woman make opposing claims like this. Since the number of men who would be willing to lie about this sort of behavior is probably much bigger than the number of women willing to engage in it (on account of the difference in commitment required), the efficiency for the legal system probably swamps any change-in-behavior inefficiencies.

(In statutory rape cases, there wouldn't be this efficiency concern for the legal system, but I don't think that the male parties in those cases would be very sensitive to these incentives or that it would be such a bad thing if they were sensitive to them.)

If these arguments are correct, you'll just have to settle for basing your outrage on the extreme unfairness, without getting additional support from inefficiency.

Alcuin Bramerton said...

A traditional Norfolk koan may assist:

A thin man with a toothbrush
Stuck up his nose
Walks into a poodle parlour in Purley.

The woman behind the counter
Looks at him.
The thin man with the toothbrush
Stuck up his nose
Looks back.

"What can I do for you, sir?"
Says the woman.
"I'd like to buy an industrial-strength
Toothbrush-remover, please."

"Show me your poodle."
"I don't run a poodle."
"Do you have a poodle
Which runs itself?"
"I don't believe
In the existence of poodles."

"Then for both business
And metaphysical reasons,
I must terminate this conversation."

More may be encountered:

Andrew Gray said...

...as he participated in an activity that will never, without deliberate and subsequent action on someone else’s part, lead to pregnancy.

At the risk of being overly pedantic - it's vanishingly improbable, but it has been known to occur accidentally.

VERKUYL, D.A., (1988). Oral conception. Impregnation via the proximal gastrointestinal tract in a patient with an aplastic distal vagina. Case report. British Journal of Obstetrics & Gynaecology. 95(9), pp.933-4

ex Africa semper aliquid novi...

JB said...

This case is really disturbing. I think blar has a point with the increasing the cost of sex with crazy women, but I imagine the costs there are already pretty high. But I completely agree, I think the idea behind this case is insane precisely because oral sex is an act which does not lead to pregnancy (well except for 1 in 1 billion apparently...oh well).

In any event, this reminds of a discussion in my con law class on abortion, where some were discussing that perhaps equal protection mandates abortion, I suggested the opposite that currently by allowing abortions equal protection is violated as to men.

Women are able to terminate their complete duty to a child, men never can and their duty is at the whim of the putative mother. I think just as good case could be made (as the case that equal protection requires abortion), that equal protection would seem to require an opportunity for the man to terminate his duty to the child, but that will probably never happen.

Gil said...

A Modest Proposal

I propose that whenever a judge wants to grant child support while considering how the child was conceived irrelevant that it should be the judge himself (or herself) who should be forced to pay the child support. This would be even more efficient than in the current case because it wouldn't even require a DNA test! I don't think it would be any less just or efficient; and it would have the added benefit of encouraging judges to actually consider justice in their decisions.

Anonymous said...

My intuition tells me that this is very wrong and extremely deceitful on the part of the woman. And out of principle, the man should not be ordered to pay any child support. But upon reading more into the case, I doubt the credibility the man's claims. I guess it's possible to become pregnant from semen saved from oral sex, but I don't believe that's what really happend. The woman also counters him by saying she became pregnant through copulation. It's another "he said she said" situation. The man claims they never had actual intercourse, but apparently it wasn't just a fling, they were dating on and off in med school and after. I seriously doubt his claim that they *never* had sex.

I can also see why the judge ordered the man to pay $800 in child support. An ex a while back who's studying to become a surgeon told me once that they make upwards of $200,000+. Not only that, Sharon Irons is also a doctor. Their combined income is over $300,000. $800 a month isn't that much of a sacrifice (I'm not saying that this is right nor that i agree with the judge's ruling.) But I think the decision was to serve an example for men who will try to worm out of child support by claiming they didn't know the woman wasn't on birth control. It's more common for men to lie in these situations than the women.

But I do have to say this: Why in the world would a woman in her right mind (who is obviously intelligent) decide to have a child that is unwanted? What kind of life would this child have knowing that the daddy never wanted her? People are so selfish sometimes. If a woman just wanted good seed, I think there should be some kind of document that she signs similar to one signed at a sperm bank where she takes sole responsibility of the child. In this case, she clearly can financially.

I feel sorry for this child who will grow up with some psychological hang-ups because of this. The world needs another mal-adjusted adult. But luckily her mommy and daddy will have a trust for her to blow through in years of therapy.

People are so stupid and selfish.


MLS said...

Glen, you've got only half the story. True, the man was ordered to pay child support. But the court also held that he had a viable claim against the woman because she “deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy, to use plaintiff’s sperm in an unorthodox, unanticipated manner yielding extreme consequences.” I would presume that a partial measure of damages could be the amount that he is compelled to pay in child support.

In any case, your whole premise is somewhat flawed. You write, "Holding people liable for harms they haven’t caused gives people an incentive to do too little of the liability-triggering activity." But a child isn't a "harm" and child support isn't a theory of tort liability.

Glen Whitman said...

Blar and SK both make good points about "he said, she said" situations. I think there's a pretty good case for using genetic paternity as the *default* rule for child support, unless strong evidence shows the man's claim is correct. But what really irked me about this case was the judge's position that the mode of conception was *irrelevant*. He would have required child support even if the mother admitted the father was telling the truth.

JB -- you make an interesting point, which I've actually addressed before:

Glen Whitman said...

MLS -- I realize that child support isn't treated as tort liability under the current system. My point is that it should be. While I agree it's odd to think of a child as a "harm," a child is most certainly a financial liability. So who should be responsible for carrying that liability? I think some of the principles of tort law should apply in answering that question.

Anonymous said...

Stories of depraved persons recovering used condoms from the trash makes me glad I always flush my used rubbers down the toilet after sex. Seems to me to be the only senisible method of disposal putting them out of reach, regardless of warnings not to flush them.

Anonymous said...

Play it safe. Always flush your used condom down the toilet!

Anonymous said...

Dispite warnings that flushing used condoms down the toilet causes problems, it has never caused me any problems.

Anonymous said...

I trust my girlfriend implicitly, but I still always flush our used rubbers down the toilet