Switching Views

(To those of you reading this on Feminist Law Profs, I’m cross-posting there from my own blog. The links and internal references are to that blog. Also, I’m about to be traveling for a bit so after tomorrow’s post I may not be able to get in to cross-post for a week or so.   But I’ll be back.)
So far I’ve been considering what I’ll call the one-night-stand problem entirely from the point of view of the man. Today I want to switch focus and begin thinking about this from the woman’s point of view.

I’ll start with the obvious. Men and women are not similarly situated with regard to pregnancy. While both men and women contribute genetic material to create a fertilized egg, only the woman actually becomes pregnant. Thus, if a woman becomes pregnant after a one-night-stand, the man can (physically) simply walk away from the pregnancy.   The woman cannot.

As the law currently stands, however, the man will be the father of any child that is born as the result of that pregnancy. I’ve suggested we re-examine that assumption, stating instead that the man is not the father. This might seem to leave the woman more likely to be on her own and thus in a far worse position. Given that I am a feminist, that would be quite problematic. A more detailed examination of my suggestion from the woman’s perspective might help to ease this concern.

Initially, the woman must decide whether or not to continue the pregnancy. This must be her decision. In some instances she will choose to terminate her pregnancy. In others she may choose to carry the child to term. I will consider these two categories of cases separately.

If she decides to terminate the pregnancy (and I’m going to indulge in the academic assumption that she has meaningful access to safe and legal means to do this) she should be able to do so without interference. If anything, removing the designation of “father” from the man makes this more straightforward. His strongest argument for a voice in or a veto over her decision is that as a father he has a right to input into the fate of “his” child. So in those instances where the woman does choose to terminate her pregnancy the refusal to label him a father is not disadvantageous to her.

What about those instances where the woman chooses to carry the pregnancy to term? Is she better off with the man as father or not? Keep in mind that for the moment I am thinking only about one-night-stand cases–that is, instances where pregnancy results from an isolated encounter with a man with whom she has no pre-existing relationship.

Once again, I want to divide the cases into two categories–those in which the man wishes further involvement and those in which he does not.

In the event that the man would like to be involved and the woman would also like him to be involved, nothing in my proposal stands in their way. He may not begin with a claim to be the father, but that doesn’t preclude his involvement.

In the event he would like to be involved but she would prefer he not be, she has the ability to close the door on him. He cannot gain entry by asserting he is the father of the child. This would seem to support her autonomy and hence, is consistent with my feminist principles.

Suppose he does not want to be involved? Again, the easy case is where their interests are aligned. If he does not want to be further involved and she does not want him to be further involved, then it would seem unproblematic, at least from a feminist perspective, to say he should not be involved. Current law does demand a different result–legally he is the father of the child. But it’s not clear to me that it serves the woman’s interest to insist on that in these particular circumstances. Neither am I sure that the command of the law changes the actual outcome in the real world.

The last permutation is that he does not wish further involvement and she wishes him to be involved. Current law might appear to support her–it recognizes him as the father of the child. But I’m very doubtful this actually makes him a ready partner in the enterprise of raising a child. I suppose more generally, I am skeptical that the law can make someone effectively enact the role of parent simply by labeling that person as such.

This consideration makes leads me to conclude, at least tentatively, that it isn’t necessarily bad for the woman involved in the one-night-stand if the man is not considered the father of any child that results. That’s only one small piece of the puzzle, but at least it is a start.

by Julie Shapiro (cross-posted to Related Topics)