By Jean Strout
On June 12, 2013, feminist scholar Laurie Shrage published an opinion piece in the New York Times decrying “forced fatherhood” as an injustice. In her piece, Shrage supports child support reform, which would excuse from child support obligations “a naïve 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.” Shrage’s suggestion smacks of “financial abortion,” which men’s rights advocates have long championed: the man is freed from financial responsibility if the woman refuses to abort the fetus.
Shrage constructs child support as a “punishment” aimed at controlling men’s sexual behavior. This view neglects the most important motivator of compulsory child support: the best interests of the child. Shrage also fails to address alternatives to child support: if biological fathers don’t pay, who will?
Compulsory child support does not need to be viewed as a punishment for men, or as a construction of fathers as nothing but financial providers. Shrage argues that while women have the option to abort a fetus, men have no control over whether the child is born, and are saddled with responsibilities if it is. Leaving aside the practical and moral obstacles to abortion for many women, the different reproductive rights of men and women result from the differential physical consequences of pregnancy and birth:
It is not necessarily a sign of anti-male bias, as men’s advocates contend, that a man’s ability to control his income and his labor isn’t accorded the same respect as a woman’s ability to control her body. In our culture, bodily autonomy is seen as a more fundamental value than property; that’s why chopping off an offender’s finger seems to us far more barbaric than stiff financial penalties or even forced labor.
Under this framework, it makes sense that a woman cannot be compelled to surrender her body to gestating a fetus, while a man can be compelled to financially contribute to his child once it has been born. The fact that women can decide whether to abort or not, and thus have control over whether they become parents, is the result of a biological reality. People get to have more control over what happens in their bodies than what happens to their wallets.
That doesn’t mean that compulsory child support is fair. As Shrage rightly argues, the characterizations of men who seek to terminate child support obligations for unwanted children as selfish, irresponsible, or even evil should be challenged. As Cathy Young points out:
If men who want a right to be released from their parental obligations seem callously egocentric to many people, that’s how women who want abortion on demand look to many anti-abortion advocates. It should make us ponder the fact that, while paternal desertion is often cited as evidence of male irresponsibility and selfishness, more than a million American women every year walk away from the burdens of motherhood.
Child support may seem unfair in some circumstances, but it is not a punishment; it is a way to protect innocent children from being punished for being conceived by a parent who didn’t want them. Children are indisputably expensive, and many expenses are directly related to the child’s well being, such as safe housing, medical care, and nutritious food. The child’s right to thrive should trump the parent’ interest in avoiding the financial burden; courts should not “subordinate the constitutional rights . . . of the child to those of one of the parents.” It is true that the best interests argument makes less sense at economic extremes. In Massachusetts, for example, the minimum child support payment for one child is $20 a week. The $20 a week minimum applies even if the custodial parent (usually the mother) has no other source of income. Nobody would argue that $20 a week is enough to support a child, so mandatory child support is clearly not sufficient to ensure the child’s well-being. The best interests argument also makes less sense when the custodial parent has a more than adequate income, or when the non-custodial parent (usually the father) must pay a certain percentage of their income even though much less would suffice to properly take care of the child. In the context of higher-income parents, maintaining proportional child support obligations can be explained in two ways: punitive treatment of fathers (making them feel the loss of income) or a sense that the child morally deserves more money because his genetic father has more money.
The best interests argument gains strength when the child’s well being is considered more holistically. For instance, in 1982 the New York District Court rejected a father’s argument of reproductive fraud as a defense to payment of child support. The New York District Court rested its decision on consideration of the psychological, as well as financial, well-being of the child: allowing fraud as a defense to child support demands “would create a new and inferior category of an out-of-wedlock child based upon the circumstances of conception and would subordinate the constitutional rights and other interests of the child to those of one of the parents.” This category of child would be acutely aware that the biological father did not want them to be conceived, and would be at a financial disadvantage compared to ‘wanted’ children; the same concerns apply to a financial abortion option. Shrage mentions the interests of the child in relation to the challenges of “manag[ing] a lifelong relationship with an absent but legal father.” However, she doesn’t acknowledge the psychological toll of having legal proof that your biological father never wanted you.
Nor does Shrage explain how children’s needs will be paid for, if not by the men who helped bring them into the world. She vaguely suggests that “the government has other options, such as mandatory sex education, family planning counseling, or community service.” These programs are laudable (although I am unsure of the meaning of “community service” in this context), but they are not mutually exclusive with compulsory child support. They also do nothing to provide relief for a child that has already been brought into this world.
If we accept as a society that children need to be adequately cared for, we must also accept that someone must pay. If the custodial parent can’t do it, the burden must necessarily fall on the other parent or on the state. Just as there are objections to forcing a father to pay for child he wanted, there are practical and normative problems with asking the state to pay. It can be seen as a moral wrong, in that biological fathers are able to escape obligations to children they helped bring into the world. It increases the burden on taxpayers, who must pay for the abdication of parental responsibility. This appears especially egregious in cases where the biological fathers can easily afford to pay support. State provision of child support also opens the door to government policing of women’s lives and finances.
Most importantly, the ‘welfare state’ and programs providing support for families are persistently politically controversial and underfunded; it is probably politically impossible to pass the full burden of child support onto the state in the near future. Consequently, as a practical matter, the father may be the only source of support available. If Shrage wants to free fathers from the burdens of accidental pregnancy, she needs to offer an alternative to poverty.
Finally, Shrage skirts the practical question of how to tell when a pregnancy is “accidental,” rendering the father eligible to avoid paying child support. What if, as is probably most often the case, the man and woman never discussed what would happen if pregnancy resulted? It is unclear whether the legal line would be drawn at reproductive fraud (however defined), or whether lack of or failed contraceptive use would be enough to make a pregnancy ‘accidental.’ Determining the circumstances of conception would require a complex investigation encompassing the pair’s sexual and romantic history, and would likely devolve into a he-said/she-said dispute about promises, commitments and ejaculations.
Male disempowerment in the area of abortion, combined with legal support obligations and negative stereotypes of fathers, has sparked violently outspoken responses from ‘men’s rights’ and ‘father’s rights’ advocates, many of whom have extreme views about the extent to which men should be able to control women’s bodies and avoid responsibility for their genetic children. There are valid concerns underlying the vitriol, and the goals of those who wish to challenge gendered stereotypes about parenting will be furthered if we can look past the extremists and understand the plight of men who are “forced” into fatherhood. However, we need to think carefully about whose rights we are privileging. Shrage constructs the problem as two-sided: women have more rights, men have fewer. But she forgets the children.
 Laurie Shrage, Opinion, Is Forced Fatherhood Fair, N.Y. Times, (June 12, 2013, 9:00 AM), http://opinionator.blogs.nytimes.com/2013/06/12/is-forced-fatherhood-fair/.
 Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women’s Sexuality, 56 Emory L.J. 1235, 1244 (2007).
 Shrage, supra note 1.
 Cathy Young, A Man’s Right to Choose, Salon.com (Oct. 19, 2000, 12:47 PM),
http://www.salon.com/2000/10/19/mens_choice/; see also Hendricks, supra note 15, at 367 (“An obligation to pay for the support of a child is entirely different in nature from either the physical imposition of compulsory pregnancy or the relational imposition of compulsory parenting.”).
 Inez M. v. Nathan G., 451 N.Y.S.2d 607, 609 (1982).
 Massachusetts Child Support Guidelines Worksheet; M.G.L. c. 208 § 28 (2012).
 See, e.g., Pamela P. v. Frank S., 443 N.Y.S.2d 343, 348 (N.Y. Fam. Ct. 1983) (“The child is entitled in this court's opinion to no less a standard of living than his father's, because it indicates the likely level that the child would enjoy if he had been born into the still-prevalent circumstance of an intact family or a father willingly sharing his custody and care.”).
 Advocates of a reproductive fraud defense would include within its definition pregnancies that result from false claims of birth control use and pregnancies initiated using sperm that the parties explicitly or implicitly agreed would be disposed of. Myrisha S. Lewis, Sex and Statutory Uniformity: Harmonizing the Legal Treatment of Semen, 7 Charleston L. Rev. 235, 267 (2012). Reproductive fraud is also referred to as contraceptive fraud and birth control fraud. Id. In Inez v. Nathan G., the father argued that the failure to terminate a pregnancy as promised consisted reproductive fraud. 451 N.Y.S.2d at 609.
 See Inez M. v. Nathan G., 451 N.Y.S.2d. at 609.
 Shrage, supra note 1.
 See Linda C. McClain, “Irresponsible” Reproduction, 47 Hastings L.J. 339, 423–424 (1996) (“Contemporary feminists identify male irresponsibility as a cause of unwanted pregnancy, abortion, single motherhood, family poverty, and family violence, often critiquing the ways that law permits or perpetuates such irresponsibility.”).
  See, e.g., Dalton Conley, A Man's Right to Choose, N.Y. Times, Dec. 1, 2005, at A33.