44 Pages Posted: 28 Feb 2014 Last revised: 24 Apr 2014
Date Written: February 26, 2014
Just last month, in the state of Utah, twelve biological fathers filed suit, challenging the state’s adoption laws — laws the fathers allege permit “legalized fraud and kidnapping.” Specifically, these laws require nonmarital fathers to promptly take legal action in Utah to preserve their paternal rights. A problem arises, however, as mothers from other states have started traveling to Utah specifically to surrender newborn children for adoption. The fathers, unaware that their children are being placed for adoption in another state, fail to take action in Utah and, as a result, are permanently deprived of all parental rights. In that sense, these laws — which actually are not much different than the adoption laws of other states — permit nonmarital mothers to effectively thwart a man’s desire to father a resulting child.
Although not the subject of the Utah lawsuit, at the other end of the spectrum, many are surprised to learn that the law also permits a nonmarital mother to force fatherhood on men who never even consented to the sexual act that produced the child. Male victims of statutory rape, for example, in every case to consider the issue, have been ordered to pay child support for children that were a product of the rape. Likewise, adult men who are victims of sexual assault as well as men whose sperm was taken without their consent (and subsequently used to artificially inseminate a female) have also been consistently ordered to pay child support for the resulting child. In all of these cases, the mother’s wrongdoing has been ruled irrelevant.
In the Article, Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men, I explore examples of both kinds of fathers — I refer to them as “Thwarted Fathers” and “Conscripted Fathers” — to reveal a serious problem that both share. Namely, the fathers in both categories have suffered a significant abridgment of their reproductive freedom, which the Supreme Court has identified as a fundamental right, either by having fatherhood forced upon them without consent or by having fatherhood withheld from them by deceit and subterfuge. In addition, what is particularly troubling about both classes of cases is that, in all of them, the person who was allowed to ultimately control the father’s reproductive freedom was the mother. After all, in both cases, it was decisions the mother unilaterally made that determined how much reproductive freedom the biological fathers would ultimately enjoy.
Thinking of the problem in those terms, such laws start to bear some resemblance to common law coverture, whereby all the wife’s legal rights were placed in the hands of her husband, which he would then dole out to her if and when he saw fit. Feminists fought hard to end these legal disabilities and, in the process, revealed the harms that arise from one gender being given dominion over the legal rights of the other. In the Article, I argue that the laws relating to the reproductive rights of nonmarital males have effectively evolved into a modern day form of coverture and, thus, must be opposed for the very same reasons coverture was opposed. In addition, given the parallel these laws share with coverture, the reaction to which has greatly shaped modern feminism, feminist legal theory is an ideal lens through which to analyze the harms befalling nonmarital fathers.
Of course, feminists have, understandably (and often justifiably), looked at the fathers’ rights movement with some skepticism. After all, a victory for fathers could very much come at the expense of those rights feminists have fought long and hard to secure for mothers. As I analyze in the article, however, this concern need not always be the case. And indeed, when it comes to the law as it relates to the reproductive freedom of nonmarital males, feminists are not only the group best situated to wage that battle, but also a group that should have a vested interest in victory. Specifically, as I explore in the Article, the laws in question not only harm nonmarital males, but at the same time, pose significant harms to women. For this reason, I conclude with a list of potential solutions to these problems, identifying areas where change can be instituted so as to offer greater protection for men, but at the same time, preserve current protections afforded women.
Suggested Citation: Suggested Citation
Higdon, Michael J., Marginalized Fathers and Demonized Mothers: A Feminist Look at the Reproductive Freedom of Unmarried Men (February 26, 2014). Alabama Law Review, Forthcoming; University of Tennessee Legal Studies Research Paper No. 234. Available at SSRN: https://ssrn.com/abstract=2401967 or http://dx.doi.org/10.2139/ssrn.2401967
By Joseph Raz