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July 12th, 2012 by Robert Franklin, Esq.
Preglimony.  That’s the new word coined by law professor Shari Motro in this article (New York Times, 7/7/12).  And here the concept is enthusiastically embraced by Katie Roiphe (Slate, 7/10/12).

What is preglimony?  Well, fortunately it’s not anything yet, but if Motro and Roiphe have their way, it will be at some point.  Preglimony would be the legal requirement that the father of an unborn child support the mother during pregnancy.  That presumably would mean paying at least some part of her costs of living, medical costs and the like.  Roiphe pronounces the notion “humane and sensible,” and the only possible drawback she or Motro sees about the idea is that it might redound to the detriment of abortion rights.  After all, so their argument goes, if “we” start demanding that the father support the mother because she’s pregnant, isn’t that the same – or close to the same – as admitting that the embryo or fetus is a human life worthy of protection?

As to that, I can easily see the pro-choice response: no, the father isn’t supporting the fetus, he’s supporting the mother, who of course retains 100% authority over whether the child gets to have a life outside her body or not.

And that, or course, is the rub when it comes to “preglimony.”  Roiphe waxes rhapsodic about the wonders of new technology that allow us to witness the growth of the embryo/fetus in utero.

I don’t actually think it is in the interests of feminism or the pro-choice movement to cling so rigidly to outdated notions of “life.” It no longer helps our cause to try to argue that the fetus is not “life.” The reason for this, as people have noted, is that technological advances, like sonograms, where you can see feet on a fetus in the first trimester, have made those claims clearly and patently hollow to even ardently pro-choice people who have seen the black and white staticky fuzziness take shape into human form. How can we possibly claim that the moving creature, with feet and toes that we can see, is not “life”?

Whatever the merits of those philosophical speculations, there is one thing that is neither philosophical nor speculative that Roiphe and Motro have conveniently overlooked in their zeal to see more and more men pay more and more money to more and more women.  That thing goes by the name of Roe vs. Wade.  However “we” see the incipient life form growing within the mother’s uterus, the law sees it very clearly as the mother’s to do with as she chooses.  By law the mother need not consult the man about anything she does or doesn’t do during pregnancy.  Does she want to drink a bottle of Scotch per night?  That’s her decision, and woe betide the father who’s foolish enough to try to stop her.  As I understand the concept of preglimony, it would in fact become his responsibility to pay for the Johnny Walker.

But more to the point, he has nothing to say about the life or death of the embryo/fetus/child he would be charged with paying for.  In short, “Preglimony” could become the title of Chapter 500 in the family law book entitled “Women’s Rights, Men’s Responsibilities.”  Does Dad passionately desire a child to love, care for and raise to adulthood?  Tough.  Mom will decide if the embryo/fetus/child lives or dies.  Does he not want a child?  Is he, like the vast majority of women who terminate a pregnancy (according to the Guttmacher Institute) simply not ready for parenthood?  Is he too young or financially incapable of raising a child?  Has he not completed his education?  Is his relationship with the mother not equal to the task of raising a child?  Again, tough.  If she wants to go ahead and have the child, his wants and needs are of no legal consequence.  Her rights, his responsibilities.

And of course if the child eventually comes into the world, it’s more of the same.  Does Mom want Dad to be part of the child’s life?  Good, she’ll allow him to play whatever role she deems appropriate.  Through various expedients available to her, many of them legal and none of them punished, any mother, particularly an unmarried one, can marginalize a father in her child’s life to any extent she chooses.  Maternal gatekeeping can send him to the sidelines of childcare while the two parents live together.  If she doesn’t want to live with him, she need not while keeping their child about 82% of the time (assuming standard visitation of one weekend out of two weeks plus one overnight).  If that modest visitation proves too onerous for Mom, she can always just ignore the visitation order altogether or honor it at her whim.  If she wants to move away, generally speaking, she can, irrespective of the father’s rights.  And of course a few claims of domestic violence are usually enough to cut the dad out of his child’s life, if not for good, then for long periods of time.

So, as I’ve said countless times before, effectively, fathers’ “rights” are in mothers’ hands.  But while he doesn’t get much say over the exercise of his “rights,” his obligations go on and on.  Child support and spousal support aren’t negotiable and, unlike fathers’ rights, prison awaits the person who violates the court’s order.  Hence the shorthand version of American family law – mothers’ rights, fathers’ responsibilities.

Now Motro and Roiphe want to add a huge new layer to that current shameful inequality while giving nothing to fathers in return.

Now presumably, if Mom decided to abort the fetus, their cherished “preglimony” would end.  Surely they wouldn’t demand that a man whose child was aborted continue to pay the woman.  But that scarcely answers the many questions raised on behalf of those targeted men, questions that never crossed Motro’s or Roiphe’s mind.  For example, if a man pays preglimony, what does he get for it?  Does he get a say in whether the child is aborted or not?  The answer to that is clearly ‘no’ because, as stated above, Roe vs. Wade is still the law of the land.  What about after the child is born?  Does the father’s payment of preglimony change his ability to have a relationship with the child if he and Mom separate?  What legal changes will be made to acknowledge yet another payment by him to her?  Motro and Roiphe are silent on the matter, forcing me to conclude that he gets nothing.  That would mirror our take on child support and visitation – payment of child support need not result in access to the child that’s largely controlled by the mother.

And what happens when Mom decides that she can get more preglimony out of wealthy Mr. A than she can out of blue collar Mr. B, irrespective of who’s actually the dad?  What if Mr. A turns out to not be the dad but to have paid Mom many thousands of dollars?  Will she be required to pay it back and seek preglimony from impecunious Mr. B?  Nowhere else in the law is paternity fraud punished, so why would it be here?  Motro and Roiphe are mum on the subject.

It’s true that Motro prefaces her argument for preglimony on the basis that we can now determine paternity solely by a blood test of the mother (and father) during pregnancy.  But neither author suggests that preglimony would be paid only in the event of such a proof of paternity.  So what’s to prevent “preglimony fraud?”  Nothing I can see.  What’s to encourage it?  The same things that encourage paternity fraud.

There’s a simple fix for at least some of the problems that “preglimony” would cause.  All fathers of children not yet born should have the right to opt out of their lives analogous to the way mothers opt out via abortion.  Those dads should have a period of, say, three months, in which to sign a binding document permanently disavowing all parental rights and responsibilities to those unborn children.  That would give the mother vital information she needs to decide whether to have the child or not.  The three months would begin to run when the father finds out about the child and his notarized signature on the document would forever bar him from any and all rights to and responsibilities for the child.

Failing such an opt-out law, I’d give Motro and Roiphe their preglimony in exchange for a presumption of equal parenting time for mothers and fathers post-divorce or separation.  But to their happy desire to simply graft ever more obligations onto fathers with no increase in parental rights, well, I have to say “no thanks.”

Thanks to Paul for the heads-up.

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