Wednesday, November 02, 2005

Common Law and Reproductive Technology

Many common Law principles are rooted in the anglo-saxon cultural past of our nation's fathers.

One of the principles involved is the concept that all children produced during a man and woman's marriage are interpreted as the legitimate heirs and dependents of the father.

As reproductive technology has advanced we have not kept pace with incorporating it into our interpretation of common law.

While we have "freed the woman" from the shackles of her reproductive system by developing and providing inexpensive birth control technology(really conception control) and have made abortion legal for women, men have not received the same level of relief.

Rather an enormous double standard has become apparent. Men are responsible for their reproductive behavior in the negative. That is to say men are encumbered by responsibility to financially care for their offspring, real or presumed.

Men are not however granted a voice in the reproductive chioice of their own wife. Should a man want a child but the woman decide she does not, she can terminate the pregancy at will {do NOT email me or comment about easily sidestepped spousal consent laws). Whereas in the opposite case should the man not want a child and wish to terminate the pregancy he is still encumbered by the financial responsibility for the care of any unwanted offspring.

Now many will say that is the man's plight for the evening of romance spent with either his spouse or Ms. Right ForNow.

Now let us take into the account the Cuckoo in Nest.

Should a man be held financially responsible for children born during the marriage for which he was not the father?

Even in an acknowledged case of a wife conceiving and bearing a child by a man other than her husband current interpretation of law holds her husband financially responsible.

This is an injustice of epic proportions. A man wronged by a unfaithful spouse held by the state accountable for the fruit of the illicit union?

Impossibly unjust you say? No legal court would, pardon the expression, implement such a miscarriage of justice.

Not so.

The policy of many state's family courts still hold the presumed father, the husband of the unfaithful woman, as responsible for any offpsring born or conceived during that union.

Now let us add to the mix new DNA technology. Where father's can by method of a simple test verify if they were the father of the offpsring in their marriage.

And still the interpretation of law based on thousand year old principles would force the victim of a cruel fraud in this case, the husband, to pay for his humiliation.

I for one call for our legal system to incorporate an exclusionary policy in divorce cases where children brought into being during the union as a deception, fraud and willingful violation of the sanctity of their marriage vows be excluded from any child support.

Essentially the whole argument boils down to one thing: You can not have it both ways ladies. If you accept the convenience that modern birth control technology provides you also must accept the responsibility for your actions.

A grateful hat tip to Instapundit and Reason

Update

I would look for a large shift in what is expected from both men and women when medical technology creates an "artificial womb". A device where the child can be kep safely to develop without putting an unreasonable encumberance upon the "mother".

With an alternative method for the incubation of offspring the time worn tenets of family law will have to shift.

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