NetNews Usenet Archive 1992 #19/NN_1992_19.iso/spool/talk/abortion/33991

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Path: sparky!uunet!van-bc!rsoft!agate!ames!haven.umd.edu!darwin.sura.net!jvnc.net!yale.edu!nigel.msen.com!heifetz!rotag!kevin
From: [e-mail] (Kevin Darcy)
Subject: Re: Right To Not Support
Message-ID: <[e-mail]>
Followup-To: alt.abortion.inequity
Organization: Who, me???
References: <[e-mail]> <[e-mail]> <[e-mail]>
Date: Sat, 29 Aug 1992 20:29:26 GMT
Lines: 391

In article <[e-mail]> [e-mail] (Steven L. Kellmeyer) writes:
>[e-mail] (Kevin Darcy) writes:
>
>>In article <[e-mail]> [e-mail] (Steven L. Kellmeyer) writes:
>>>[e-mail] (Kevin Darcy) writes:
>>>
>>>>In article <[e-mail]> [e-mail] (Steven L. Kellmeyer) writes:
>>>>>
>>>process of creating a child" "not ... on the basis of who _physically_
>>>created the child".  I guess I forgot that the OB/GYN is liable for child
>>>support from every kid s/he delivers.
>
>>That doesn't follow. By that time, the baby has -already- been created. The
>>OB/GYN is only there to maximize the health of the mother and child.
>
>But there ISN'T a child until the OB/GYN helps make one!

Note that word "helps", Kellmeyer. That indicates an optional, indirect
relationship. For thousands of years, women had children without the benefit
of an ob/gyn, and in many cases without the benefit of midwife either. The
ob/gyn is ONLY there to maximize the health of the mother and the child
*AFTER* the decision has already been made to create the child. The law
recognizes that this MEDICAL relationship is too indirect to create liability
between the ob/gyn and the child he/she helps deliver.

Besides, if it was ever called into question legally, then one or both of
the following would occur:

    A) All ob/gyn's would require their patients to sign waivers as a
       matter of course

    B) The state would demonstrate a compelling reason to shield ob/gyn's
       from this liability, namely, the fact that it would completely
       destroy the ob/gyn medical specialty, thus resulting in disastrous
       pregnancy-mortality rates.

So much for the "ob/gyn's are liable for child-support" straw man. Care to
come back into Earth's orbit and talk about the REALITY of paternity child-
support, Kellmeyer?

>>>Unfortunately,
>>>the logic of legal abortion has made it quite clear that the man does *NOT*
>>>create the child, he supplies only raw material.
>
>>Nowhere
>>is it said that the man does participate in the creation of the child. I
>>challenge you to find one direct reference in all of the landmark abortion
>>cases that asserts that the man does not participate in the creation of his
>>offspring.
>
>It's in the next line, Kevin.  The man isn't a father yet.  He won't be
>one until the mother finishes creating the child.  Pretty bloody obvious.

Don't try to weasel, Kellmeyer.

"X participated in the creation of a child" is a necessary, but not a
SUFFICIENT condition for "X is a father". They are not equivalent.

>>>The courts are beginning to recognize this. [...] Tennessee ruled that a man
>>>has a "right to choose not to be a father" even
>>>though the fetuses already existed and were created through an action set
>>>whose sole and only purpose was procreation.
>
>>The Tennessee case concerned frozen embryos. You have yet to prove that the
>>case has any precedential value outside of the context of frozen embryos.
>
>Oh, I see.  The temperature makes a difference.

Stop playing dumb (it _is_ an act, isn't it?). Obviously the temperature AND
the location make a HUGE difference. Does it make a difference whether a car
is parked on a street, or on your face? Just location, right? Can you survive
as well when sitting buck-naked at the North Pole as you can in the tropics?
Just temperature, right? Some differences are quantitative, some
qualititative. Embryos in a freezer are qualitatively different from embryos
growing and developing in a woman's body. To imply that it makes no important
difference to a fetus whether it's growing in the womb or plunged into liquid
nitrogen is to express a gross disregard for the interests of fetuses
everywhere. Do you hate them that much, Kellmeyer?

>>>In the case of surrogacy, IVF (in vitro fertilization) and AID (artificial
>>>insemination by donor), other interesting things happen.  The mother is
>>>currently defined, in the states where contests have occurred, to be the
>>>one who *CARRIES TO TERM AND DELIVERS*.  Doesn't matter who supplied the egg.
>>>Isn't that interesting?
>
>>Sure it's interesting. But just because "mother" is defined this way, doesn't
>>mean that a similar definition must also be instituted for "father". Nor
>>would it follow that just because someone isn't a child's "father" that they
>>would be immune from a paternity suit. The law doesn't know from "father";
>>all it really knows, in this context, is supportER and supportEE. The man
>>who "supplies the raw material" as you are so fond of indelicately putting
>>it, is the supportER. The child produced therefrom is the supportEE.
>
>No longer is there a basis in the law for this arbitrary distinction, Kevin.
>Using this logic, the "father's" identical twin could be hit up for support.

Wrong. The identical twin has performed no action which led to the other
twin's existence. Your analogy is fatally flawed.

>So could his fraternal twin.  Or the man he lives near.  If the law doesn't
>know from "father", why don't they just assign a supporter at random from
>the population at large?

Did "the population at large" perform an action which led to the supportee's
existence?

>>>Child support assumes the parents owe a duty of
>>>support to the child - the child is the one who requests support, albeit
>>>through the legal guardian.  Note that AID permits men to sign a waiver
>>>which releases them from child support obligations.  How is this possible?
>>>How can a man sign away the rights of another person, when he is not that
>>>other person's guardian?  Very good question.
>
>>The woman accepts the burden on his behalf when she agrees to the AID
>>procedure. This is not a UNLIATERAL signing-away, it's BILATERAL. And that
>>distinguishes it from the regular case of a man contesting a paternity
>>child support claim.
>
>She can't agree to give away the rights of a person she does not yet
>represent (since that person does not yet exist).

Read my lips, Kellmeyer -- SHE'S NOT GIVING AWAY THE CHILD'S RIGHTS: SHE'S
VOLUNTARY *ACCEPTING* THE RESPONSIBILITY OF HONORING THOSE RIGHTS BY HERSELF.
Do you have a problem with people _offering_ to shoulder other people's
responsibilities? If I offered to pay your way through college, would you
consider that offer ILLEGAL, or merely a waste of cash?

>>>Take the Logic of legal abortion, the Tennessee court case, the way surrogacy
>>>is handled, and the way AID is handled.  Put them all together.  Suddenly,
>>>it becomes very difficult to support the contention that men can be forced
>>>to pay child support in the current legal environment.
>>>How long before some legal genius finds a court and a client willing to
>>>try to make this fly?
>
>>A legal genius wouldn't touch your line of "reasoning" with a ten-foot
>>casebook, I'll wager.
>
>Your opinion is worth nothing, since you've already shown that you don't
>understand why the courts do genetic testing for paternity.

O Great Legal Scholar, please enlighten me... Why _do_ the courts do genetic
testing for paternity (other than the obvious reason of making sure they've
got the right guy?)

>>There are plenty of valid attacks on the paternity
>>status quo, but you seem to have a knack for collecting only INvalid ones.
>>This is probably because your aim is to frighten pro-choicers, especially
>>women, with the prospect of total and complete repeal of paternity child-
>>support. Most of us who argue this issue IN GOOD FAITH want reform rather
>>than repeal. We don't frighten so easily, Kellmeyer. We don't buy for a
>>second your "status quo or total repeal" scare tactics. We know there's
>>plenty of room for compromise between those two extremes.
>
>Your "reform" is indistiguishable from repeal.

To you, maybe, because a compromise is incompatible with your agenda. But
to those of us who actually CARE about this issue, instead of merely using
it as a vehicle for pushing pro-life viewpoints, repeal and reform are two
very different things.

>>Sure he does. He has every right to dissuade her, as long as the WAY he does
>>so is not coercive or harrassing. This is all perfectly legal and above
>>board. This is completely analogous to a minority stockholder in a large
>>corporation. The man doesn't have a final say or veto, to be sure, but neither
>>does a minority stockholder, when you get right down it.
>
>Nor is that stockholder held liable for 18 years of debt payments on a
>50-50 ratio.

Stop trying to obfuscate. We were discussing whether the man should have a
veto power over the abortion decision. Now you're trying to steer back to the
central child-support issue. If you're going to change the subject, then
please admit the point first: the man has no veto power over the abortion
decision, because, like the minority stockholder, he has less of a stake
in the physical process of pregnancy than the woman does. Right?

Admit that, and we can move back to child-support.

As far as the child-support goes, I agree that stockholding in a corporation
is a bad analogy, since such investments have limited liability. A
partnership analogy, with the man as "junior partner" would be much more
accurate.

>>>>>He is no more a causative agent than the doctor who mixes sperm
>>>>>and egg in a test tube, yet that doctor cannot be enjoined by the mother.
>>>>>The man can be.  How do the doctor and the father differ?
>>>
>>>>She cannot enjoin the doctor, because (presumably) it's not HIS sperm.
>>>
>>>But, as you point out above, physical processes don't matter.  You claim
>>>only the _social_ process of creating a child is what matters.  What
>>>possible difference does the ownership of the sperm make?
>
>>Ownership is a social concept.
>
>Precisely.  So why can't society define that doctor as a "supporter"?
>According to you, it can.

I suppose it _could_, theoretically. It chooses not to, for (IMO) very valid
social policy reasons, and possibly because the arbitrariness of such a
liability assignment might run afoul of Due Process. If you _want_ test-tube
scientists to be made liable for child-support, then by all means feel free to
lobby for it politically. Good luck. You'll need it.

>>>The social process of creation is
>>>what matters.  The scientist mixing sperm in a tube is certainly
>>>engaging in a social process of at least the importance of a one-night
>>>stand.
>
>>Nope. The act of mixing two substances in a test tube is not, ipso facto, a
>>social act. The ownership of one of those substances, however, IS a social
>>relationship. Enough to be determinative of paternity child-support, in the
>>eyes of the law.
>
>Well, he owns it or he wouldn't be mixing it in a test tube, would he?

The voice of desperation. No, Kellmeyer, even the law recognizes a special,
fundamental kind of ownership which comes from taking raw materials, and
with some sort of creative act, fashioning them into something far more
functional or sublime. In the realm of intellectual property rights, for
instance, the writer of a book, or the sculptor of a beautiful statue is
recognized as its owner in some senses, even if the rights to that book
and that book or statue are sold, exchanged, bartered, etc. many times over.
It is that creative sense in which I meant "owned", or perhaps we I should
said "authored". To be sure, a man does not _consciously_ create sperm, but
sperm-generation is a creative biological act nontheless, and, analogously to
intellectual works, its products bear a unique "signature" associated with
their creator. Thus this kind of ownership falls effortlessly into the
existing legal framework, so although the scientist may technically "own" the
sperm (as in, may buy or sell it) he is not the owner in terms of
"authorship". And it is this "authorship" type of ownership which forms the
basis of paternity child-support liability.

Besides, if worse comes to worst, the scientist could just get a waiver from
the donor. You really can't win, Kellmeyer. The most your agenda could
achieve is to make people fill out more paperwork, that's all.

>>>Sorry, but if only one party can nullify the contract, I don't think it
>>>is going to hold. Indentured servitude went out with breech pants.
>
>>If I sold you, say, an insurance policy that you could cancel at any time,
>>would that be an unenforceable contract? Of course not. It would be binding
>>as long as you didn't cancel it. Nor would such a contract amount to
>>"indentured servitude". Your legal "reasoning" fails you again.
>
>So explain why a man has to pay child support even if HE was the one who
>was raped?

That's part of the child support law I'd want to reform. We're in agreement
there.

>And it seems to me that the insurance company can nullify the
>contract when it wants to as well.

Only if mutual cancellability is written into the terms of the contract, or
if both parties agree to the nullification. Any party can cause themselves to
be bound at the discretion of the other, and in fact this is precisely the
kind of implied contract (if paternity child-support is to be viewed as a
contract matter at all) that the law imputes the man to have agreed upon.

>Furthermore, the insuree must continue
>to maintain the relationship by sending money to the company.  Does the
>woman send money (or services in kind) in order to retain the right to carry
>to term?  I think not.

Again, this depends on the terms of the contract. If the parties agreed for
a single bulk payment to be made, then that is what must be made under the
terms of the contract. If, on the other hand, monthly payments are stipulated,
then, again, that is what must be made. Don't confuse usual business practices
with legal REQUIREMENTS, Kellmeyer. The actual is always a subset of the
possible.

Relating the analogy back, the woman makes her "bulk payment" in terms of
participating in the sex act, and the initial stages of pregnancy. That
fulfills her side of the contract. She may then rescind the contract, at
her discretion. If she does not rescind, then the man continues to be bound
for 18+ years, in accordance with the KNOWN AND PRESUMABLY *UNDERSTOOD* terms
of the contract he is imputed to have agreed upon.

>>>>>How does an anonymous sperm donor differ from any of the above?
>>>
>>>>It's much clearer that the sperm-donorship recipient VOLUNTEERS to shoulder
>>>>the entire child support responsibility in that case...
>>>
>>>They cannot voluntarily give away the child's rights.
>
>>No, but they _can_ agree to honor those rights UNILATERALLY. As long as the
>>child's needs are met, and the mother gets what she wants (i.e. a child to
>>love and raise), and the sperm donor gets to keep his anonymity, what
>>business is it of yours or anyone else's to tell them what they are doing is
>>immoral, Kellmeyer? Who appointed you God?
>
>Kevin, I didn't say a thing about morality.  Why do you bring it up?

Because your argument has no legal validity, I conclude that your only basis
for interfering in the private affairs of citizens is moralistic.

>It isn't a matter of whether they can agree to honor those rights
>unilaterally.  Either the law can compel them to honor those rights, or
>it cannot.

You misunderstand the applications of law here. Laws can FORBID things,
it can COMPEL things, or, as the third alternative you seem to be
overlooking, it can PERMIT things, leaving the actual decision up to
private citizens. It is this "permit" alternative which is in fact the
essence of pro-choice.

The law COMPELS parents to support their children, but it's not real picky
about whether and/or how they delegate this responsibility. Between themselves,
or between the parents and a third party, they may delegate all they wish.
I could, for instance, offer to shoulder the child-support burden of any
unwed mother in Michigan, right at this very moment. Such a delegation would
be perfectly legal, as long as all parties concerned are in agreement. The
law PERMITS this kind of arrangement. It neither compels or forbids it.
And if a complete stranger can accept one parent's child-support liability,
then -certainly- one parent can accept the other parent's liability, if
both of them agree to it. There is nothing illegal about it, and, IMO,
nothing immoral about it either. So why do you keep denouncing the
practice? What business is it of yours?

>Currently, no one has ever attempted to force a sperm donor
>to honor child support rights.  The law clearly does not find genetic
>ownership compelling in the father's case (except when it wants child
>support) and does not in the case of the surrogate mother who did not
>donate the egg.

Genetic ownership IS compelling, since it is _res ipsa loquitur_ for the
commission of a social act, i.e. sexual intercourse, which is recognized
by the law as creating child-support liability. As explained above, in the
case of AID, the parties AGREE to reapportion liability in such a way as
to simultaneously preserve the child's right to support, and the donor's right
to anonymity. This is all VOLUNTARY, Kellmeyer. It's not the state's business,
IMO, and it's CERTAINLY not your business.

>>>>You can't tell diddly, Kellmeyer. There is NO NADA ZERO ZILCH ZIP reason to
>>>>believe that reform is just around the corner. You have not produced even one
>>>>iota of proof that the Tennessee case you're so fond of citing has any
>>>>precedential bearing whatsoever on the paternity child support issue.
>>>
>>>Taken alone, probably not.  Taken in conjunction with other rulings on
>>>procreative activity, and the case is not half-bad.
>
>>You're right. It isn't half-bad. It's ALL bad. Disjointed and ludicrous and
>>ridiculous and absurd, as a matter of fact.
>
>That's precisely how I would describe the logic behind legal abortion.

Then for heaven's sake attack what you see wrong with RvW, man!!! Stop with
these cryptic, ignorant, whiny child-support detours. All you do is confuse
the issue and make reform more difficult to explain to the uninitiated.
Cast enlightenment, not ignorance. Attack what you hate, not what you want
to see preserved (i.e. the child-support status quo). Be forthright, not
oblique. You'll probably fare much better that way.

>>I might say that your agenda was overt. But you don't. You whine and cauterwal
>>about the paternity child-support laws, and call for repeal, and only when
>>someone like me or Larry, who has your number, points out that you're a
>>pro-lifer pushing an agenda, you act all innocent. "Oh, wasn't it _obvious_
>>that I was talking about 'pro-abort logic', rather than my own? You don't
>>actually think that *I* believe any of these things for which I argue
>>passionately, do you?" No, Kellmeyer, it doesn't work that way. Either you
>>spell out your agenda FIRST, or you get exposed later. In the former case,
>>you end up in practically everyone's killfile right off the bat. In the
>>latter case, your slimy underhandedness completely destroys your credibility.
>>Take your pick.
>
>Oh, Kevin, I merely tell you what the law will soon be doing.

Bullcrap. You have not given evidence of any trend in that direction.

Put your finger on the pulse of the legal community, Kellmeyer. Do you hear
folks calling for paternity child-support repeal? The voices just aren't
there. They only exist within your scare tactics. Has *ANYONE* with any
verifiable legal training agreed with your proposed link between the frozen
embryo case and paternity child-support? If so, I haven't seen them comment.
Give up, Kellmeyer. Your tactics have failed. No-one believes this repeal
bogeyman. All you're doing now is shredding the remnants of your credibility.

>I don't have
>to like it.  I don't have to support it.  I merely tell you what is coming.
>Do weathermen LIKE tornadoes that destroy mobile homes?  No.  Are they
>dishonest because they don't include, in every alert, the disclaimer
>"By the way, we are personally opposed to the destruction of tornadoes".
>I think not.

The destruction of tornadoes is a verifiable fact, Kellmeyer. Impending
child-support repeal, on the other hand, is just a hobgoblin mask with which
you try to scare the uninformed. Please try to understand the distinction
between facts, and agenda-laden forebodings.

                                - Kevin