Sunday, October 13, 2013

The Two-Choice Dilemma of Having a Child

In this post, I would like to look at how the decision to bring a child into the world is made.

In a family that sees a child as having two parents, this is a choice that both parents make together.  Both parents agree to bring the child into the world or else it doesn't happen.  For shared earning/shared parenting families, this is how they see it and they also discuss how they are going to raise the child and how they are going to meet the child's needs, and both parents see themselves as responsible for all facets of these needs.

The law does not currently regard this choice this way, however.  In this post, I'll look at how the law currently regards the decision to bring a child into the world.  Then I propose an a "two-choice model" as a possible improvement, and will illustrate how a "two-choice model" would apply to several recent high-profile cases:

(A) Adrian Peterson's two-year-old child ("Tommy Tyke") with an unnamed mother ("Jane Doe"), who died after being beaten by Jane Doe's boyfriend, Joseph Robert Patterson.

(B) Samuel Nathaniel Bode Miller-McKenna, a child born to Bode Miller and Sara McKenna, who had a highly publicized dispute over the fetus and now the child.

(C) The case of seven children subjected to gross child neglect in Colorado where the first four children were found, placed in foster and then adoptive care, and then the parents (a 65 year old father, a 35 year old mother) had three more children they again subjected to gross neglect.  


How does our current political economy, including the United States Constitution and our legal systems, including the Affordable Care Act (and the unregulated health care system that precedes the ACA), see this matter?

1.  Many states in the United States provide that everyone, male or female, has the right to object to sexual relations, through the criminalization of rape.  In such states, married people may object to sexual relations with a spouse because spouses are not exempt from rape laws, although unfortunately in some Southern states in the United States, if a spouse can use forms of coercion other than a high level of violence, there is no law considering such coercion to be criminally prosecutable.  Some states in the United States were among the first jurisdictions in the world to remove marital exemptions to rape laws, while some states still have not reformed their laws and lag many foreign countries.  South Carolina is a prominent example, where force of a "high or aggravated nature" is required for a rape to occur, effectively meaning that other forms of coercion are not prosecutable.  

[Many activists in the United States would like to change the nature of this framework so that affirmative consent is actually required for sexual relations, including within marriage, rather than just an absence of an objection. One example is The Consensual Project.]

2.  Everyone, male or female, who does engage in sexual relations has the right to use contraception under Supreme Court rulings, including Griswold v. Connecticut and Eisenstadt v. Baird.

3.  There are many very reliable methods of contraception.

(a)   Nearly every method available to women requires a doctor's care for fitting or prescription and insurance companies are required to include them unless the insurance coverage is provided through an employer that seeks a "religious exemption".    Outside the context of the "religious exemption" employer the ACA requires coverage of "All Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity."

(b)   Some methods available to men, such as condoms, don't require a doctor's care.  Others, such as vasectomies, do.  The Affordable Care Act does not require insurers to provide any such care to men, although many insurers may do this voluntarily or men may pay for these services out of pocket.  Higher tech, reversible versions of birth control for men are reported under development in the press.  A possible male pill, called RISUG, is being developed in India and has been submitted to the FDA.  Many scientists think the only reasons more such methods don't exist is insufficient market demand.  The fact that paternity is now provable, and increasingly less expensive to establish, may help drive that demand, although it is curious that the ACA did not include any governmental support for developing such methods and also that physician-assisted methods such as vasectomies were not included in the list of items insurers must include.

4.  If a pregnancy does occur, the mother has the right to obtain an abortion under Roe v. Wade.
The father does not have a right either to consent to or object to the abortion.  In practice, many partners to a pregnancy do discuss their respective wishes, their ability to meet the needs of the child if born, and the father thus does get a say. 

5.  If the mother decides to abort the fetus, neither the man nor the woman has any further legal obligation.

6.  If the mother decides to have the child and does not put the child up for adoption, both parents have obligations to financially support the child, although enforcement of these obligations varies widely.  Under U.S. law, only the mother has the obligation to meet the personal needs of the child.    While financial support obligations can sometimes be enforced against noncustodial parents, legal standards of abuse/neglect usually apply only to custodial parents and there is not currently clear provision for a noncustodial mother or father to be prosecuted for neglect.

[The United States Constitution does not recognize children as distinct from adults and does not include any concept recognizing that children have needs they cannot meet themselves and who is responsible for meeting them.

The 1992 United Nations Convention on the Rights of the Child, a binding convention signed by every member nation of the United Nations and formally ratified by all but Somalia and the United States, declares that the upbringing and development of children and a standard of living adequate for the children's development is a common responsibility of both parents and a fundamental human right for children, and asserts that the primary responsibility to provide such for the children rests with their parents.]

What are some ways this framework could be improved?

One possible model could be a "two choice" model of parental responsibility.  This could involve:

(a)  A "rights of the child" amendment to the U.S. Constitution or state constitutions, perhaps along the lines of the UN Convention but perhaps updated to recognize that paternity is now readily and inexpensively proven and disproven, with basic and simple language expressing that children have the right to have their personal and financial needs met by their parents and that in the first or default instance, both parents have several (or independent) liability for meeting those needs.  This would mean that if the child's needs were not met, both biological parents would be liable and could not sue each other unless they had an express agreement that one or the other, or an adoptive parent or parents, was going to assume 100% of some or all responsibilities for meeting the child needs that were neglected.


(b)  A requirement that consent is required for sexual relations, not just absence of an objection. 

(c)  Amendment of the ACA (a) to require insurers to cover (i) male methods of contraception that require a doctor's assistance, such as vasectomies and (ii) paternity testing and (b) to support research and development into higher tech versions of male contraceptives.

(d)  When a mother decides to have a baby, then the question of the child's rights enter the picture.  Unless the mother expressly assumes 100% of the responsibility for the child, the father would hold such responsibility fully (as does the mother), and severally from the mother.  Or unless the father expressly assumes 100% of the responsibility for the child (or any aspect of the child's needs), the mother holds such responsibility (as does he) fully and severally from the mother.  The state could then have the right to stand in for child, itself or through a guardian ad litem to ensure that these several liabilities of the parents for meeting the basic needs of the child are met.

Has this type of view been discussed much in the upper reaches of policy development?  Two prominent married-to-each-other economists, George Akerlof (who won a Nobel Prize in 2001) and Janet Yellen, nominated on October 6 by President Obama to be Chair of the Federal Reserve, wrote an article called An Analysis of Out of Wedlock Births in the United States in 1996 about the role that lack of paternal financial responsibility for children has played in the feminization of poverty.  The article does not discuss the impact on children. The structure of the article also assumes no paternal responsibility for meeting nonfinancial needs of children.  Instead the idea is that there has been a decline in "shotgun marriage" or the social convention that if an unmarried woman became pregnant the father of her child used to be pressured to marry her and support her and the child financially via the marriage (or through divorce laws if one then ensued).  The "shotgun" in that scenario was usually carried by the father of the unmarried woman, presumably because he did not want to have to support financially the unmarried woman and her forthcoming child.  In practice, of course, many women supported themselves and their children in these situations as they do today, however, today we also have many federal programs designed to provide taxpayer support to unmarried women with children. The EITC is one example, and much has been written about how it can actually discourage marriage and even cohabitation between parents.  Like Akerlof's and Yellen's paper, the discussion focuses on marriage as a construct for men to financially support their children rather than any paternal responsibility for nonfinancial needs of children (either inside or outside marriage).  Currently the United States government program "Temporary Assistance to Need Families" or TANF, requires of its recipients that the state be allowed to step into the mother's shoes in collecting child support from a father, and this also reflects a view that the default is that custody (and thus responsibility for meeting the personal needs of the child) belongs with one parent and financial support with the other, rather than a default that both parents are severally responsible for meeting all needs.

(e)  Welfare programs such as the EITC could be redesigned to be child-centric.  They could be designed to remove any marriage penalty and to make the payment to the child, rather than to the mother, in the name of both parents (perhaps divided pro rata to their respective incomes).  In the absence of any agreement to the contrary, the child would have the right to be placed in each parent's care 50% of the time.   If the parents form an express written agreement to the contrary, for example, that the mother assumes all the responsibility for meeting the personal needs of the child and the father all the financial responsibility, then all payments on behalf of the child would go to the father since he has assumed financial responsibility.  Any failure by him to pay for the child's financial needs would make him liable to the child, with the state or a guardian ad litem able to act on behalf of the child. 
 
(f)  As I've discussed in an earlier post, and many others have as well, outside the context of the EITC, there are many other subsidies to patriarchal families (whether married or not), including to very wealthy ones, many of which are unfunded and contributing to the $17 trillion federal debt.  These could be eliminated.  Families can still choose the patriarchal style but they would not be subsidized in it and if there is a failure to meet the child's needs, the child (and the state or a guardian ad litem on the child's behalf) would have a cause of action against both parents for any need not expressly assumed by one or the other.

How would these ideas work as applied to some real life cases?

Let's look at a recent case in the news:

(A) Adrian Peterson's two-year-old child ("Tommy Tyke") with an unnamed mother ("Jane Doe"), who died after being beaten by Jane Doe's boyfriend, Joseph Robert Patterson.   Below is what reportedly really happened, with the modification of what would have happened under a "two choice dilemma" model listed in brackets.

1. Peterson and Doe reportedly had sex in a very short-term relationship that created the pregnancy that resulted in Tommy Tyke.  There is nothing reported in the news that indicates there was any objection by either Peterson or Doe to having the sex.  They each had the opportunity to use contraception and there is nothing in the news reports to suggest that either of them did.

[They would both have had the opportunity to consent to this rather than just not to object to it.  If one or the other did not consent, this could be prosecuted as nonconsensual sex. Peterson would have had higher-tech, reversible contraceptives available to him in addition to current male methods. Peterson would have received, for no copay and as more routine part of health care for men, analogous services to those currently required by the ACA for women: reproductive health counseling and screening and counseling for interpersonal and domestic violence.]

2.  Doe decided to carry the pregnancy to term and Tommy Tyke was born.  She did not notify Peterson until Tommy Tyke was more than a year old.  Peterson did not contact her during the pregnancy or later to see if a pregnancy had resulted or a child was born.

[Because it is a "rights of the child" model, since Doe decided to have Tommy Tyke, once Tommy Tyke is born, he would still have the right to have his needs met by both his parents, under several liability, unless the nonconsensual nature indicates one parent lacks capacity, in which case that parent could also be prosecuted for neglect of Tommy Tyke.

Prior to Doe notifying Peterson and while Peterson was not contacting her, there has been no express agreement between Peterson and Doe allocating responsibility for the child's needs.  During this time, both parents are liable if there was any failure to meet any of Tommy Tyke's needs.]

3.  Doe notifies Peterson in July 2013, when Tommy Tyke is over a year old.  Peterson says "how can I help?"  Peterson does not go to see the child.  There is nothing in the news reports to indicate any agreement was made between Peterson and Doe at this point allocating the responsibility, beyond possible financial support from Peterson.  It is not clear if Doe expressly agreed to assume all responsibility for meeting personal needs of Tommy Tyke.

[Without an express agreement to the contrary, during all this time both parents are fully and severally liable if there was any failure to meet Tommy Tyke's needs.]

4.  Doe leaves Tommy Tyke in the custody of Joseph Robert Patterson, her boyfriend.  Patterson was given suspended sentences a year ago for simple domestic assault and violation of a domestic abuse bond, both misdemeanors.  It has not been reported whether Doe knew this.  Patterson beats Tommy Tyke on at least one occasion.  Patterson calls authorities about 5:45 p.m. Wednesday, October 10, to report that a 2-year-old was choking in his Sioux Falls apartment. Officers arrived to find the toddler unresponsive, and he was rushed to a nearby hospital.  Peterson goes to visit Tommy Tyke, for the first time, while he is unresponsive in the hospital.  Tommy Tyke dies in the hospital Friday, October 12.  Patterson was arrested Thursday, October 11, and charged with aggravated battery of an infant and aggravated assault. If convicted on the charges, both felonies, Patterson could face up to 40 years in prison and an $80,000 fine.  Doe is not under investigation.  Peterson is not under investigation.

[Without an express agreement to the contrary, during all this time both parents are fully and severally liable if there was any failure to meet Tommy Tyke's needs.  There was a failure to meet one of Tommy Tyke's needs, protecting him from violence by a babysitter or other custodian.  Both parents are liable for child neglect.  Doe may also be liable for child endangerment if she had any knowledge that Patterson was abusing Tommy Tyke and she continued to leave him in Patterson's custody.

Patterson and Peterson would both have had access to no-copay "well man" visits comparable to those women receive under the ACA, which in turn allows access to no copay depression screening and referrals that all adults receive under the ACA.  They would also have received no copay (a) reproductive health counseling and (b) counseling for interpersonal and domestic violence, both currently required by the ACA for women and not for men.]

[Ideally, with a "two-choice model" both Doe nor Peterson and everyone else would understand more clearly the implications of the choices each made all along this process and perhaps they would have had a child under circumstances where they could meet his needs and this tragedy could have been prevented.]


(B) Samuel (or Nathaniel) Bode Miller, a child born to Bode Miller and Sara McKenna, who had a highly publicized dispute over the fetus and now the child.

1. Miller and McKenna reportedly had sex in a six-week long relationship in San Diego April-May 2012 that created the pregnancy.  There is nothing reported in the news that indicates there was any objection by either Miller or McKenna to having the sex.  They each had the opportunity to use contraception and there is nothing in the news reports to suggest that either of them did.

[They would both have had the opportunity to consent to this rather than just not to object to it.  If one or the other did not consent, this could be prosecuted as nonconsensual sex.  Miller would have had higher-tech, reversible contraceptives available to him in addition to current male methods. Miller would have received, for no copay and as more routine part of health care for men, analogous services to those currently required by the ACA for women: reproductive health counseling and screening and counseling for interpersonal and domestic violence.]

2.  During the pregnancy, McKenna says she asked Miller to be an involved father, but he initially pushed her away. She released a text message from June 2012 in which Mr. Miller, explaining why he would not accompany her to an ultrasound, said, “U made this choice against my wish.”

[Because it is a "rights of the child" model, McKenna would not have to ask Miller to assume half the responsibility for meeting the baby's needs when born.  This would be the default unless one or the other parent offered to take full responsibility, with full understanding of what that requires, and the other parent agreed.  When Miller made clear he had no intention of following through on that responsibility, McKenna, or any party on behalf of the child, would be able to go to court to get an order on behalf of the future child holding Miller equally responsible both financially and for the work of meeting the child's needs.] 

3.    In October 2013, McKenna decided she could no longer do the firefighting job she had and began applying to colleges.  She was accepted to Columbia and moved to New York City.  By last fall, Miller was taking action to secure a major role in his future son’s life, filing a declaration of his paternity and interest in custody in San Diego.

[Under the "rights of the child" model, Miller effectively would be following through on his responsibility, but after a period of neglect and prior to the birth of the child.  During the period where Miller stated an intention to neglect the child, McKenna would have had an opportunity to obtain a court order.  If she did not do this, on might think she would be indicating an intention to assume full responsibility for the child when born.  From the child's perspective, however, she needs to expressly consent to this with full understanding of the responsibilities as set forth in the "rights of the child" amendment (or elsewhere if established in other law) for Miller not to have responsibility.   If she made such express consent, she would be entitled to have the baby live in New York after he was born.  If Miller then wanted to renegotiate the previous assumption of responsibility by McKenna, Miller would be required to move to New York to meet his responsibilities.  If Miller had not had the period of neglect, however, he might have a claim that the baby should live in San Diego after he was born, given that that was where he was conceived, and McKenna would have to live there to meet her responsibilities to the child unless Miller assumed them, with full consent and understanding of them.]

4.  The baby was born in March 2013.  McKenna names him Samuel Bode Miller-McKenna.   Miller then obtained permission from the California court to add Nathaniel as a middle name, in honor of his recently deceased brother, and he calls the boy Nate.

[Without an express agreement to the contrary, from this point forward as earlier both parents are fully and severally liable if there is any failure to meet Samuel's/Nathaniel's needs.  One need of children that is recognized in the UN Convention on the Rights of the Child is to be named.  Because these parents cannot agree on a name, a question is raised as to whether it meets the child's needs to have to hold both names.  If this is something that will harm the child, the parents could each be held liable for such harm unless McKenna expressly assumed full responsibility during Miller's period of neglect, in which case the name she chose would prevail.]

(C)  [Seven children subjected to repeated known cases of child neglect in Colorado; 65 yo father; 35 yo mother - to be completed]

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