This post is reprinted with permission from Secular Pro-Life:
When arguing about abortion, I’ve seen a lot of people claim “sex isn’t a contract.” Other variations of this idea include:
- Consent to A doesn’t mean consent to B (that is, consent to sex doesn’t mean consent to reproduction).
- You clearly don’t consent to reproduce if you use birth control.
- Sex is not a crime and shouldn’t be punished / Rights cannot be restricted unless there is a crime.
The problem is, when it comes to reproduction, these arguments only apply to women.
If a man gets a woman pregnant–be it his wife, girlfriend, affair, or one night stand–he is legally bound to provide support for that child. In other words, because the man participated in the child’s conception (because the man had sex), his rights are altered. It doesn’t matter if the man was only consenting to sex, and not to reproduction. It doesn’t matter if he used birth control. It doesn’t matter that sex isn’t a crime. He fathered the kid, so the law considers him responsible for the kid.
And the law takes a pretty hard line on the subject. Courts can require a father to pay child support based not just on what he earns, but on what courts believe he has the ability to earn. Child support obligations remain even if a father goes to prison, or declares bankruptcy. Even if he wants to terminate his parental rights (and therefore his parental responsibilities), the courts usually won’t allow it unless there is another adult prepared to adopt the child and take over that responsibility. And there are many methods for enforcing child support. A man’s tax refunds can be intercepted, his property seized, business or occupational license suspended, and in some states his driver’s license can be revoked. If he still fails to make payment, he can be held in contempt and given jail time.
In short, if a man has sex he runs the risk of being (rather tightly) legally bound to any new life he creates. In the essay “Abortion and Fathers’ Rights“, author Stephen D. Hales summarizes the situation:
…the father, having participated in conception, cannot escape the future duties he will have toward the child. The father can decide that he cannot afford another child, that he is not psychologically prepared to be a parent, that a child would hinder the lifestyle he wishes to pursue, and so on, to no avail.
Sound sad? If a man is forced to pay child support, that could mean serious emotional, psychological, financial, and social repercussions for him. So why do we have child support laws? Is it because we hate sex, and want to punish people for having sex?
No, of course not. And interestingly, you rarely see anyone even suggest as much. No, it’s clear to most people that we have child support laws in order to, you know, support children. Child support laws aren’t enforced to punish men for having sex—they’re enforced because it’s best for the child. In the same way, abortion shouldn’t be outlawed to punish women for having sex—it should be outlawed to protect fetal life. In both cases, it’s not about punishment, it’s about protection.
And that’s as it should be.
I’d love to live in a world in which there are no unplanned pregnancies and no unintentional parents. I think people should have control over whether they become parents, in the sense that people should have control over whether they get pregnant or get someone pregnant. That’s why I support comprehensive sex education: I want people to understand their own fertility and, if they do choose to have sex, I want them to understand how they can best prevent pregnancy while being sexually active.
However, once pregnancy has happened, once there’s already a new human organism in the picture, it changes everything. I think the people whose actions created that new life should be responsible for its protection.
Of course, many people disagree. Abortion rights advocates place reproductive freedom over protecting the lives we create, at least when it comes to women and pregnancy. How would this mentality look if they also applied it to men and child support? Hales has an idea:
A man has the moral right to decide not to become a father (in the social, nonbiological sense) during the time that the woman he has impregnated may permissibly abort. He can make a unilateral decision whether to refuse fatherhood, and is not morally obliged to consult with the mother or any other person before reaching a decision. Moreover, neither the mother nor any other person can veto or override a man’s decision about becoming a father. He has first and last say about what he does with his life in this regard.
(And if we’re being really consistent, he doesn’t have to inform the woman he impregnated, or anyone else, about his decision to refuse fatherhood.)
It seems to me that consistency requires abortion rights advocates to argue for the man’s right to choose as well as the woman’s: the pro-choice mentality means that, as women can “walk away” from their pregnancies, men should be able to walk away from the women they have impregnated.
Not very uplifting, is it?
Or we could strive for a different kind of consistency–the kind that holds both men and women to a higher standard. This is why I’m for child support laws, and this is why I’m against abortion.
I think there’s a more sympathetic read available for these pro-choice arguments which involves assuming a context which may not be explicit (or perhaps even present in peoples’ minds). The ground on which abortion is most secure in most peoples’ eyes is bodily autonomy; there’s virtually universal agreement that this is valuable, we just differ on whether the interests of the fetus are important enough to override it during pregnancy. The idea that the pregnant woman has already agreed to be pregnant by having sex is sometimes used to undercut the claim that bodily autonomy is relevant, because we’re fine with people in general being held to their word once given.
If you assume all of that context, making the point that consent to sex is not consent to pregnancy is not a positive argument for abortion rights at all, but a rejoinder to an argument which purports to defeat such a positive argument. The focus on consent and contracts comes from the pro-life argument, and is ill suited to the original pro-choice issue of bodily integrity, which isn’t relevant to men.
Now, it’s true that there’s no apparent way to give women full control over their bodies without also allowing an abortion to a woman who is indifferent to the use of her body for the pregnancy, but doesn’t want the financial, social, or other burdens of a baby. I think the most moderate argument for legal abortion would concede that this is unfortunate, but forced on us by the practical difficulties of distinguishing the cases in which bodily integrity is genuinely in play and those in which it isn’t. Since that’s never an issue for fathers, we are not similarly poorly positioned, and it’s men’s bad luck that there’s no critically important right which spreads its umbrella over their desire to be deadbeats.
Put another way, while I wouldn’t want to put myself in judgment over any individual choice, I’m sure there are selfish and inhumane motives behind many abortions. That’s genuinely moving to me, but I can think of no government action I’d support to prevent it.
Very thoughtful.
I don’t think this argument is meant to explain why the interests of the fetus override bodily integrity. The bodily integrity argument is a serious consideration on its own, and needs to be addressed separately from the sex-isn’t-consent argument. If people are going to defend the right to an abortion based on bodily integrity, this child support argument won’t change their mind.
However, many people defend the right to abortion not just based on bodily integrity, but on the reasons listed at the beginning of this post as well (“You don’t consent to procreate if you use birth control,” etc.) I think the child support argument shows how such reasons are insufficient, maybe even irrelevant, to justifying abortion.
It makes sense to me that people defend abortion rights based on bodily integrity, but it doesn’t make sense to me when people try to assert the right to abortion because “sex isn’t consent to reproduction.” Clearly, in countless cases per year, it effectively is consent to reproduction.
On another note, abortion rights advocates need not alter the state of abortion at all in order to make the situation more consistent. A man could have the right to sign away parental rights in the same time frame a woman has the right to an abortion; for example, if a given state outlaws abortion after 24 weeks, the man has up until the woman is 24 weeks along to sign away his parental rights. After that point, both the man and the woman are legally considered responsible for the child. I’m not personally an advocate for this, but I don’t see how a person fighting for reproductive rights could argue against it.
Again, I think a more charitable reading of these arguments de-emphasizes consent. Whether you’re responsible for a child is irrelevant to consent–people can be held responsible for children without having consented to this without a problem. Consent only becomes an issue when someone claims that having sex entails consent, and that consent entails the loss of the right to bodily integrity.
I’ve mentioned this sci-fi example elsewhere: imagine that we develop a procedure whereby a fetus can be non-traumatically removed from a pregnant woman and incubated as long as necessary. This would remove bodily integrity from the equation for the woman as well. I think it’s perfectly consistent to support abortion rights now, but once this procedure exists to support making it freely available and abortion illegal.
Essentially, this position is that men already enjoy exactly the set of rights and responsibilities which are ideal. Granting women all of the relevant rights of men sadly requires granting even more rights, but that’s a practical limitation, not a goal which we should extend men’s rights to meet. Does that still seem inconsistent?
I’ve spent many, many years debating abortion and I can promise you that this statement would not be widely accepted by the pro-choice folks with whom I’ve debated the issue.
There’s a fine line between “more charitable reading” and “the argument that I think they should have made.” Monica’s argument doesn’t address your specific concerns re: bodily autonomy, but it’s not designed to do that. It’s a specific response to a specific set of concerns. You appear not to hold those concerns (and that’s fine, of course), but they are real and this argument addresses them well.
Monica, look what popped up on Slashdot just last week: Court Says Craigslist Sperm Donor Must Pay Child Support.
This is why any contract that is not reviewed by legal counsel, and notarized is only as effective as the paper it is written on. The state law states that by using a doctor for the process it removes the sperm donor from parental rights and obligations. It doesn’t address the other side of the coin by ‘requiring’ the use of a doctor, so this will likely be appealed upward.
I really like the argument here that if you want equality then men should be able to walk away as well. Doesn’t mean I think either choice is right, just that when you argue equality don’t think that equality is always fair or better for your side.
You may well be right, but I doubt that your context has been ideal for eliciting it. Most discussions of abortion never really reach issues like whether it’s acceptable to hold parents responsible for welcome children they didn’t seek or consent to having.
It’s also my impression that many supporters of abortion rights talk about such issues very differently with allies than with opponents. Because they feel like these rights are critical and are constantly under siege, continually being undermined in any way possible, they feel the conversation with those who oppose abortion is purely oppositional, and any ground given is a loss. So I wouldn’t terribly surprised if some of the people who talk about consent like it’s required for responsibility would back away from that when talking with those they view as allies. I don’t think there’s any sensible requirement that we assume our interlocutors are more like us than they present themselves as; indeed, to do so would be arrogant, so I think it’s best to take those who present an uncompromising face at their word. So this isn’t a critical position–I think you’re right that the article is addressing a real position most abortion rights supporters publicly adopt. I’m much more encouraged about the possibility for the two sides to end up closer than they’ve long seemed, though, and my hope is that making the position I’m suggesting for those who are pro-choice more salient may help both sides do a better job of recognizing the importance of the values on both sides.