If Abortion Rights, then the Right of Parental Surrender

For the past 49 years, abortion rights in the U.S. have been solely a creature of constitutional law.  The right of privacy created by Supreme Court precedents that, in turn, created the right to an abortion, applied, of course, only to women.  Men naturally had no right to privacy as it applied to pregnancy and abortion rights.

Therefore, an overturning of the Court’s abortion precedents, if it happens, would remove the issue from its constitutional framework and place it in a statutory one to be decided by state legislatures.  That could allow the parallel issue of men’s right to avoid the consequences of conception, for the first time, to enter the public debate and possibly receive a serious hearing.  I’m not holding my breath, but the demise of Roe and the constitutional regime governing abortion rights could conceivably open the door to the concept of parental surrender.

When asked by researchers, including those at Planned Parenthood’s Guttmacher Institute, women overwhelmingly cite reasons of practicality for having an abortion.  In survey after survey, reasons like their own age and immaturity, lack of financial wherewithal, lack of a sufficient relationship with the father and the like are given as their reasons for terminating a pregnancy in 89% - 95% of cases.

Given that, it’s hard not to notice that men face the same issues.  Men too may be short of money, too young to become a parent, not have completed their education or not have a secure relationship with the mother.  So if a woman can avoid the consequences of conception via abortion, shouldn’t men have the same right?

True, those consequences are greater for women than for men.  Contrary to certain loony beliefs currently in vogue, men can’t become pregnant, carry a child to term or give birth.  But what’s just as true is that, when a woman has an abortion, she doesn’t just avoid the consequences of pregnancy and childbirth, she also avoids 18 or more years of child care, support, sleepless nights, medical worries, college funds, heartache, etc.  So, if women can avoid all those years of the consequences of conception, shouldn’t men be able to do so as well?

More specifically, shouldn’t state legislatures grant to men the right to sign a state-approved form saying, in essence, that they’re aware that a certain woman is pregnant, that the signer believes himself to be the father and that he knowingly and willingly waives all his parental rights to the child forever?  If so, state law would then prohibit the mother and the state from enforcing parental obligations against him.  Such a document, properly executed, would mean that he could never assert parental rights to the child and could never be required to pay support for it.  It would mean that the mother could never demand support from him or be subjected to his demands for custody or parenting time. 

First and foremost, a man’s right of parental surrender is a matter of equality between the sexes.  If one sex has the legal right to avoid the consequences of conception that’s conferred on women by abortion rights, the other sex should have a parallel right.  Those who trumpet their support for gender equality seldom also support the right of parental surrender, but without it, the sexes can never be equal before the law.

But parental surrender is about more than equality, important as that is; it’s about fundamental fairness too.  As things stand now and have for far longer than Roe has been in effect, women generally exercise considerable control over men’s reproductive rights.  Particularly with abortion rights, a woman can literally decide whether a man becomes a father or not.  Does he passionately desire to have a child?  He may, but the issue is not his to decide, a policy position with which I enthusiastically agree.  Is he one of those men who, like the millions of women who have abortions, is not ready to be a parent but who learns that his girlfriend is pregnant with his child?  Again, whether he’s saddled with 18 years of support is simply not his to decide.  Her decision, his obligations.  To exist at all, gender equality must go both ways (that’s what equality means) and at present men’s fundamental right to decide whether to have a child or not is placed squarely, not in his hands, but in hers.

Assuming no medical issues, there is not a single argument against parental surrender that’s not also an argument against abortion rights.  If you support abortion rights, you must, as a matter of intellectual honesty also support the right of parental surrender.  In those fairly rare instances in which a woman has an abortion for medical reasons, the consequences of that abortion extend far beyond those medical issues.  They include the 18+ years of caring for a child that burden both the mother and the father.

Now, do I seriously believe that state legislatures will, any time soon, even consider the concept of parental surrender?  I do not.  They should, but they won’t.  That’s because even a casual glance at all the issues regarding children, parents, child custody, fertility and the rights and duties related thereto unequivocally tell us one thing – that society is perfectly content with women maintaining effective control over men’s fertility, and rights and access to their children.

I’ll say more about that next time.

2 comments

Jeff Golden

I disagree with Mr. Nathanson.
Although there is no reason why women should not be required to register for military service, the abortion issue is one in which we could grant sexual equality right now.
First, according to the Talmud (the oldest explanatory text in the Abrahamic religions), life begins when the baby’s head exits the womb. Until then, there is no baby to have a vote.
Next, there already is a legal way for fathers to reject parental responsibility. Many (all?) states have “Safe Haven” laws whereby anyone can drop off an unwanted child that appears to be not more than 30 days old at a hospital or police station, no questions asked. (I would suggest that, if either parent does this, he/she identify the other parent.)
As for abortion rights for both parents, there are three possible scenarios:
(1.) Both parents want to abort. No conflict, and it gets done.
(2.) Father wants an abortion but mother does not. Mother is free to have the baby, but father has already surrendered his parental rights and responsibilities. This will become a one-parent child (as many already do).
(3.) Mother wants an abortion but father does not. Mother would be required to carry child to birth. At birth, father would have custody of child, but mother has already surrendered her parental rights and responsibilities. Father would be required to compensate mother for any economic loss resulting from pregnancy. (The anti-abortion people should love this as it requires consensus of both parents for an abortion instead of it being a unilateral decision, thereby having the potential to cut the number of abortions in half.)
(4.) If both parents want the child to be born, there is no abortion issue to be considered.

Paul Nathanson

So far, you’ve made sound arguments for returning the debate over abortion to state legislatures and for taking sexual equality seriously (although the latter would require the additional step of either requiring women to register for military service or abolishing the requirement for men to do so). Trouble is, these arguments over abortion utterly ignore the the fact that a third party is involved in every case. This leaves one problem unsolved and presents at least two additional ones. I’ve listed these here but not necessarily in order of importance.

Ignoring the fetus, presumably as nothing more than a clump of cells, means supporting the argument for abortion—even for abortion on demand. I don’t think that you can effectively bypass the fact that every fetus is a living human (albeit inconveniently situated in someone else’s body). And that is true at any stage of development regardless of “viability.” After all, even infants and young children are totally dependent on others for survival. So are adults and elderly people who have medical conditions that would prevent them from surviving without the constant care of others. You have offered no medical criterion, let alone a moral one, for differentiating between one stage of development and others.

Your proposal still leaves you with the problem of sexual inequality, moreover, unless the state allows either the mother or the father to demand an abortion. And that, in turn, would require state control over the bodies of women. Not many women would vote for that (although many women have voted for, or at least supported, legislation that controls the bodies of men, including their own sons, in wartime).

Allowing fathers to reject paternal responsibility for their children would support sexual equality for the parents, to be sure, but would also transfer that responsibility to the state. Do you really want to increase the state’s intrusion into family life? Some people do—some want even to abolish the family—but I doubt that you would.

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