Is Forced Fatherhood Fair?

By LAURIE SHRAGE
This weekend millions of Americans will happily celebrate the role that fathers play in their
families. For some families, though specifically those in which dads role was not freely
assumed, but legally mandated Fathers Day can be an emotionally complicated occasion.
And that somewhat messy reality raises a question that is worth examining today as the very
definition of parents and families continues to undergo legal and social transformation.
Womens rights advocates have long struggled for motherhood to be a voluntary condition, and
not one imposed by nature or culture. In places where women and girls have access to affordable
and safe contraception and abortion services, and where there are programs to assist mothers in
distress find foster or adoptive parents, voluntary motherhood is basically a reality. In many
states, infant safe haven laws allow a birth mother to walk away from her newborn baby if she
leaves it unharmed at a designated facility.
If a man accidentally conceives a child with a woman, and does not want to raise the child with
her, what are his choices? Surprisingly, he has few options in the United States. He can urge her
to seek an abortion, but ultimately that decision is hers to make. Should she decide to continue
the pregnancy and raise the child, and should she or our government attempt to establish him as
the legal father, he can be stuck with years of child support payments.
Do men now have less reproductive autonomy than women? Should men have more control
over when and how they become parents, as many women now do?
The political philosopher Elizabeth Brake has argued that our policies should give men who
accidentally impregnate a woman more options, and that feminists should oppose policies that
make fatherhood compulsory. In a 2005 article in the Journal of Applied Philosophy she wrote,
if womens partial responsibility for pregnancy does not obligate them to support a fetus, then
mens partial responsibility for pregnancy does not obligate them to support a resulting child. At
most, according to Brake, men should be responsible for helping with the medical expenses and
other costs of a pregnancy for which they are partly responsible.
Few feminists, including Brake, would grant men the right to coerce a woman to have (or not to
have) an abortion, because they recognize a womans right to control her own body. However, if
a woman decides to give birth to a child without securing the biological fathers consent to raise
a child with her, some scholars and policy makers question whether he should be assigned legal
paternity.
Historically, it was important for women to have husbands who acknowledged paternity for their
children, as children born to unmarried parents were deemed illegitimate and had fewer rights
than children born to married parents. Today, the marital status of a childs parents affects much
less that childs future. Nevertheless, having two legal parents is a significant advantage for a

child, and establishing legal paternity for both married and unmarried fathers is a complicated
but necessary part of our public policies.
As more children are born to unmarried parents, the social and legal preference for awarding
paternity to the mothers husband becomes more outdated. When there is a dispute about
fatherhood rights and obligations, the courts can use different criteria for assigning legal
paternity. These include a mans marital or marriage-like relationship with the childs mother, his
caregiving and support role in the childs life, and his biological relationship to the child.
The legal scholar Jane Murphy has argued that a new definition of fatherhood is emerging in our
laws and court decisions which privileges a mans biological tie to a child over other criteria. In a
2005 article in the Notre Dame Law Review, Murphy wrote about paternity disestablishment
cases in which men who have assumed the father role in a childs life seek genetic testing to
avoid the obligations of legal fatherhood, typically when they break up with the childs mother.
Her research shows that replacing the limited mothers husband conception of fatherhood with
a narrow biologically based one still leaves many children legally fatherless.
Furthermore, Murphy explains how the new definition of fatherhood is driven by the
governments goal of collecting child support from men whose biological offspring are in the
welfare system, as well as lawsuits from men aiming to avoid financial responsibility for their
dependents. Murphy, then, reasonably proposes that judges and legislators recognize multiple
bases for legal fatherhood and be guided by the traditional goals of family law protecting
children and preserving family stability. Murphy argues for revising paternity establishment
policies so that fewer men become legal fathers involuntarily or without understanding the legal
responsibilities they are assuming.
Murphys proposed reforms would apply to men who have different kinds of ties to a child. They
would protect a nave man who, in a moment of exuberance with a girlfriend, allows his name to
be put on a birth certificate, and a man whose only tie to a child is biological. Coercing legal
paternity in such cases leads to painful disestablishment battles that are unlikely to be in the
best interest of the child or promote stable family relationships. Murphy discusses cases in which
legal fathers resort to violence or threats of violence against a mother and her children when
child support orders are enforced against them.
I happen to be familiar with the social consequences of forced paternity because my mother
worked in the district attorneys office in Santa Clara County, Calif., in the 1970s and 80s. I
remember the stories that she told about mothers on public assistance who lived in fear that a
former abuser would return to harm them or their children because of the D.A.s enforcement of
a child support settlement. Coerced paternity in such caseswhere there has been little informed
consent at the moment of assigning legal paternityis typically costly to enforce and does not
protect children or preserve family stability.
Feminists have long held that women should not be penalized for being sexually active by taking
away their options when an accidental pregnancy occurs. Do our policies now aim to punish and
shame men for their sexual promiscuity? Many of my male students (in Miami where I teach),
who come from low-income immigrant communities, believe that our punitive paternity policies

are aimed at controlling their sexual behavior. Moreover, the asymmetrical options that men and
women now have when dealing with an unplanned pregnancy set up power imbalances in their
sexual relationships that my male students find hugely unfair to them. Rather than punish men
(or women) for their apparent reproductive irresponsibility by coercing legal paternity (or
maternity), the government has other options, such as mandatory sex education, family planning
counseling, or community service.
Court-ordered child support does make sense, say, in the case of a divorce, when a man who is
already raising a child separates from the childs mother, and when the childs mother retains
custody of the child. In such cases, expectations of continued finiancial support recognize and
stabilize a parents continued caregiving role in a childs life. However, just as court-ordered
child support does not make sense when a woman goes to a sperm bank and obtains sperm from
a donor who has not agreed to father the resulting child, it does not make sense when a woman is
impregnated (accidentally or possibly by her choice) from sex with a partner who has not agreed
to father a child with her. In consenting to sex, neither a man nor a woman gives consent to
become a parent, just as in consenting to any activity, one does not consent to yield to all the
accidental outcomes that might flow from that activity.
Policies that punish men for accidental pregnancies also punish those children who must manage
a lifelong relationship with an absent but legal father. These fathers are not dead-beat dads
failing to live up to responsibilities they once took on they are men who never voluntarily
took on the responsibilities of fatherhood with respect to a particular child. We need to respect
mens reproductive autonomy, as Brake suggests, by providing them more options in the case of
an accidental pregnancy. And we need to protect children and stabilize family relationships, as
Murphy suggests, by broadening our definition of father to include men who willingly perform
fatherlike roles in a childs life, and who, with informed consent, have accepted the
responsibilities of fatherhood.
Laurie Shrage is a professor of philosophy and womens and gender studies at Florida
International University.