paternity

Searched for Origin of "Coerced Paternity After Oral Sex" Story, Found Sherry Colb's Interesting FindLaw Blog Instead

Posted by figleaf on Thu, 2011-02-24 19:03

So about a week ago Amanda Hess mentioned a peculiar paternity case that's making the rounds of the blogosphere lately... even though the case in question was decided back in 2005.

The saga of Dr. Richard Phillips and Dr. Sharon Irons continues: "Phillips accuses Dr. Sharon Irons of a 'calculated, profound personal betrayal' after their affair six years ago, saying she secretly kept semen after they had oral sex, then used it to get pregnant," the Associated Press reports. After toiling in Chicago courts for years, "An appeals court said [Phillips] can press a claim for emotional distress after learning a former lover had used his sperm to have a baby. But he can’t claim theft, the ruling said, because the sperm were hers to keep." Irons, who has established Phillips' paternity of the child, claims that she and Phillips had sexual intercourse on multiple occasions during their relationship..

Source: TBD

As I usually do when stories that resemble "evergreen" memes crop up I started looking for any other references to either of the two doctors and... pretty much couldn't find anything that wasn't related to the 2005 appeals court ruling.  Nothing about the initial ruling, nothing about other allegations, nothing about the child who'd now be a 10 or 11 year old, and definitely nothing about whether Dr. Phillips might have come to appreciate having a child even if (as he alleges but she disputes) Dr. Irons conceived the child in a very deplorable manner.  (I'd be bloody horrified to learn I had a child I didn't know about because I really, really enjoy being a father and it would totally gut me to miss out on the first two years of one of my children's lives, even if the mom was a total dick.)

Anyway, the only serious non-knee-jerk discussion of the case I found was this pretty cool and even-handed consideration of the case and its circumstances by Cornell Prof Sherry Colb at FindLaw, again, back in 2005: When Oral Sex Results in a Pregnancy: Can Men Ever Escape Paternity Obligations.

On the one hand, she says, the law is and has been since roughly the Code of Hammurabi that "when a baby comes into the world, both the man and the woman whose genes led up to the child's existence are ordinarily responsible for the care of that baby, regardless of whether the child was 'wanted' by both parents."  On the other hand "even if one accepts that intercourse equals consent to paternity, what happens when a man does not consent to intercourse? Does he still bear the risk of becoming a father? The case of Phillips and Irons ... tests our intuitions about that very question."

While Colb clearly accepts Phillips's claims for the sake of the argument she does nicely construct hypothetical cases where a man unambiguously (and, significantly, non-sexually) could become a biological partner.  And asks, correctly, why would a victim be held responsible for the care of a child he literally had only an absconded-with biological connection to.  (Colb doesn't mention it but see also the extreme-outlier statutory-rape/paternity mix-up case I mentioned a few posts ago.)

You need to read her post for the details, the upshot of which makes you realize that not only are there no easy questions, there are no easy answers either.  But in the end Colb comes down, narrowly and tentatively on the side of not holding a biological parent legally, economically, or physically responsible who literally has no responsibility for the creation of his child.

To which I would just add, implies, strongly, that the same must be true of holding legally or economically responsible a biological parent who equally literally has no responsibility for the creation of her child.  An item which, if Colb's opinion were made law, would offer an entirely non-"privacy penundrum" foundation for quite a bit of law regarding reproductive choice.  Egregious "no exception for rape" clauses being only the most obvious.

And finally, no, I never did find out anything else about that now-old appeals court case except a few terse newswire accounts and a lot of angry people's speculations and opinions thereof.  (Even Colb's post, while informed in terms of the law, is speculative in terms of the actual case.)  Nor is there any reason why such an old story would find itself revived.

Still, I'm glad it did.  Turns out Colb has written a ton of articles on legal issues near and dear to most of our hearts.  She doesn't always come down on my general side of issues but she usually does.  At this rate I'll be up all night reading pretty interesting treatments of gender, rape, reproductive rights, LGBT rights, etc, from her FindLaw blog.


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With Paternity Revision Comes Great Paternity Responsibility -- Good Thing New Male Contraceptives Are Finally On the Horizon

Posted by figleaf on Wed, 2011-02-23 00:42

The need to adjust our pre-feminist notions of paternal responsibility notwithstanding, this unpublished draft from last December is a reminder that we need to adjust pre-HIV notions of "sexual freedom" in relationship to condom use.  (The context was the Julian Assange incident.)

Anthony McCarthy of Echidne of the Snakes, who remembers the impact HIV had on his community of gay men, brings his bitter understanding of condom-avoiding "knowing transmission" to heterosexuality.

...as you know, women are infected with HIV through vaginal sex as well as through anal sex by men who are infected. Straight men are often infected through anonymous sex with women or men just as gay men are. I suspect that for many women, who have grown up with the idea that AIDS is primary a problem for gay men are at the stage gay men were in the early days before the syndrome even had a name.

Of course this is all by way of explanation for my comments on the accusations made about Julian Assange. Being a witness to the deaths of dozens of gay men I knew, knowing that just about all of them with a few exceptions, likely were infected through casual sex with someone they didn't know, knowing that women can be infected by men, all of that informs my thinking on whether or not people should be having casual sex with people they don't know in 2011. And the fact is they shouldn't. Women deserve better than they're going to get from men under those circumstances, men who have sex with men deserve better than they get from it. There is nothing liberated about being infected with HIV or hepatitis or chlamydia or any number of other infections that can injure and kill you. Having sex with someone who can persuade you to engage in sex you don't want or who can trick or force you into it is the opposite of free choice. No more than getting robbed by a conman. And there is no law you can make that will protect you from any of that which is stronger than protecting yourself. And there is nothing that is more likely to protect you than knowing who it is you're agreeing to have sex with.

Source: Echidne of the Snakes

At the time I drafted this I was on a real tear about "knowing transmission" not only of sexually transmitted diseases but pregnancy.  The more diligently men pursue reproductive responsibility the easier, both socially and biologically, it'll be to advocate for revision of paternity statutes as well.

(Good news on the paternal contraception front, incidentally.  Via Beth Saunders, it sounds like in addition to condoms, withdrawal, and/or surgical sterilization men will soon have not one but three reversible hormonal contraceptives to pick from, which means that men will finally be able to use double contraception without help from a partner.)

Will we ever be able to ditch condoms? Not as long as there continue to be multiple partners and sexually-transmittable illnesses. But with the possibility of new male contraceptives we can dramatically reduce the possibility of knowingly or even just carelessly transmitting paternity.


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Via Bridget Crawford an Unusual Statutory Rape Case Suggests Need to Revisit Pre-Feminist Assumptions About Paternity

Posted by figleaf on Tue, 2011-02-22 23:04

Via Bridget Crawford here's a highly unlikely but also deeply gender-bound hitch in paternity law

Nathaniel was a California teenager who became a father in 1995. The mother of Nathaniel’s child was named Ricci, and at the time of conception, she was thirty-four years old. Nathaniel, however, was merely fifteen. Although Nathaniel admitted to having sex with Ricci voluntarily about five times, the fact that he was under sixteen years of age at the time made it legally impossible for him to consent to sexual intercourse. In other words, under California law, Nathaniel was not only a new father, but was also a victim of statutory rape. Nonetheless, in a subsequent action for child support, the court held that Nathaniel was liable for the support of the child who was born as a result of his rape. According to the court, “Victims have rights. Here, the victim also has responsibilities.”

Source: Feminist Law Professors

This is particularly vexing because unlike the standard "pro-life" solution for pregnancy and statutory rape when the victim is a woman, the unwilling, underage father is pretty much positively unable to "relinquish" his child for adoption unless the child's adult mother is willing.  Thus he can be held liable in a way that underage maternity victims are not: he's held to "responsibilties" an underage, or even of age female counterpart wouldn't be.  Without getting all rabidly MRA about the femininister hegemony being responsible (it isn't since nearly all paternity laws vastly, vastly predate feminism) one can still notice that it's... pretty unequal treatment under the law.

So.  Short term such laws really ought to be changed.

Next, I'm still annoyed at the part where the woman who seduced the child isn't being held liable for the transgression.  Let alone being allowed to keep the infant herself rather than, say, surrendering it to the victim's family.  Even if they chose to "relinquish" the infant for adoption he or she would still end up in a better home than the mother would likely offer.  (There's certainly precedent for this -- Mary Kay Laterno's victim's family raised the baby she had as a result of repeatedly statutorily raping her 13-year-old victim.)

The rest of the paper Prof. Crawford passes along might be a little more problematic.  Having identified one area where an involuntary father can be held liable for an offspring he was unable to consent to the author, Michael J. Higdon of, I think, the University of Tennessee, proposes extending the standard release of parental liability given to voluntary sperm donors for IVF to non-consenting, involuntary sperm donors.  That's problematic, I think, because without a really clear definition of "involuntary" you're going to open the door to a lot of guys who are perfectly happy to consent to sex but don't want to bother with the semi-inevitability of paternity.

But one way or the other the Nathaniel/Ricci case suggests that (pre-feminist) gender presumptions about men's and women's agency and responsibility in the domain of pregnancy really do need to be adjusted.


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