Last week, Laurie Shrage caused a bit of a stir on the blogosphere with her controversial article on the Stone, a New York Times philosophy blog, entitled “Is Forced Fatherhood Fair?” In the article, Shrage challenges the prevailing notion that unwilling fathers should be forced by the state to pay child support. This is unfair, Shrage argues, because unwilling fathers never consented to conceive or raise the child, and (unlike the mother) lacks the freedom to have the child aborted or given up for adoption. Shrage’s article raises a number of interesting issues, including whether US restrictions on reproductive rights mean pregnant women are analogously forced to give birth and the issue of whether a policy could adequately distinguish between ‘willing’ and ‘unwilling’ fathers. Here, though, I would like to focus on the central question of whether unwilling fathers have a moral obligation to financially support their children.
This issue rests on the larger question of what grounds obligations towards children in general. Tim Bayne and Avery Kolers have plausibly suggested that any account of parental obligation will be pluralistic – we should recognize a number of distinct sufficient conditions for parental obligation, reflecting the varied structure contemporary families may take. With this in mind, I will discuss four options to ground parental obligations: communal, consensual, causal and biological. Only two of them – biological and causal – could sensibly justify the obligation of unwilling fathers to their children, but each faces particular problems of plausibility and counterintuitive implications. These do not exhaust all possibilities, but they are some of the most prominent in the literature. In the end, some degree of bullet-biting will be necessary – something will have to give.
Communal obligations towards children are a cornerstone of the welfare state. As children are members of society, liberal societies will extend to them the general provisions of welfare, including education, healthcare, and direct financial support. Indeed, such obligations are stronger than general welfare duties insofar as children cannot be said to be responsible for their predicament. Unwilling fathers in a welfare state will then owe obligations to children via the taxes they pay, a portion of which will go towards welfare programs. But this obligation is very indirect, not singling out fathers per se, nor their children in particular. One might wonder whether unwilling fathers should bear a disproportionate burden of welfare support for their children, but such a duty would have to be grounded in reasons other than general communal duties.
Consensual obligations certainly make sense as a sufficient condition for parental obligation. Entering into voluntary contracts is an exercise of individual autonomy, and having children in particular is a central case of exercising reproductive autonomy. Demanding that parents fulfill obligations they agreed to is quite respectful of this autonomy, and assuming the conditions of consent were appropriate, would be perfectly fair. The consent model (unlike the causal and biological model) also helps explain why we treat adoptive parents have similar obligations as biological parents. But again, this won’t help a defender of financial obligation of unwilling fathers, as unwilling fathers did not consent to have a child – hence their unwillingness. One could argue that they provided tacit consent by having sexual intercourse, but it is not at all clear that such an action could come anywhere near the usual conditions of information and voluntariness that are needed to make consent morally transformative. In addition, it would be especially hard to argue for consent in cases where the father agreed to the use of contraceptives – in such a case, the father was if anything explicitly conveying an unwillingness to become a father. It is this lack of consent that Shrage (as well as, a decade earlier, Elizabeth Brake) relies on for her case against the financial obligations of unwilling fathers.
Causal obligation, by contrast, could be used to justify the obligations of unwilling fathers – though it is a dubious general model, even as a purely sufficient condition on parental responsiblity. James Lindemann Nelson has defended this model against the consensual model by drawing an analogy to the responsibility that comes from causing unintentional harm to others. While conceiving a child is not a harm, a related principle that causal contribution is sufficient for responsibility would explain why unwilling fathers bear financial obligations to their children: they are a proximate cause of the creation of the child. This view has a few odd implications, however, indicating that it proves too much. As Nelson accepts, it indicates that sperm and egg donors can be held financially liable for the well-being of resultant children, even if the non-biological parents consent to waive such responsibility (the duty is to the children, not the non-biological parents, and so the non-biological parents don’t have the right to waive the duty). Perhaps more disturbingly, it implies that fertility doctors involved in in vitro fertilization are financially responsible for the well-being of the resultant child. This is because doctors did proximately cause the existence of the child, and their actions can, in conjunction with the contributions of the mother and father, be considered roughly sufficient for the creation of the child. But these implications appear somewhat absurd, at least as radical and potentially unjust as Shrage’s proposal to obviate paternal financial duties.
A natural move at this point is to advert to biological relation as the basis of obligation. It may not necessarily release sperm and egg donors from duty (at least in its general form), but it at least excludes fertility doctors. And it has strong intuitive support, aligning well with related familial duties to (even long-lost) parents and siblings. This may be the most intuitively attractive option, but it faces a larger problem of philosophical justification. What, exactly, is it about biological relation that can plausibly be said to matter morally? Mere genetic similarity is itself intuitively implausible, as that would imply one would have strong parental obligations in cases of freak genetic coincidences where unrelated individuals have a very similar genetic profile. Moreover, the fact of genetic similarity does not itself seem very morally important – perhaps it is relevant in evolutionary terms, but it is not clear why we should care about it. One could rely on a more specific kind of biological process – participation in sexual intercourse resulting in impregnation and childbirth – but again, it is not clear what makes that morally relevant independent of general causal considerations.
Each option for defending the financial obligation of unwilling fathers, then, faces significant philosophical difficulty. Communal and consensual accounts could not justify the obligation, while causal and biological stories either are counterintuitive or lack convincing grounding themselves. At the same time, Shrage’s proposal is itself counterintuitive. Something has to give. So where do we go from here? If one has a strongly intuitionistic approach, the biological model (where participation in a process of sexual intercourse resulting in pregnancy and childbirth is sufficient for obligation) is probably the best option. While it might lack in philosophical grounding, there are relatively few counterintuitive implications (at least that I can think of). This would support the obligations of unwilling fathers, and personally it is the option I am most attracted to. But a more theoretical approach may well support Shrage’s account, insofar as the consensual and communal models enjoy stronger theoretical support based on autonomy and political theory, compared with causal and biological models that rely more on intuitions about cases.
Whatever direction one takes, one should be upfront about the intuitive and philosophical costs of each approach, which may well have implications beyond the question of whether unwilling fathers should be held financially responsible for their children.