Weighing the pros and cons of a man's right to "financial abortion."
Matt Dubay and Lauren Wells had broken up by the time she discovered she was pregnant. The two had only dated for a few months and had polar opposite views on parenthood: Wells wanted to keep the child; Dubay didn't want to become a father. When the state of Michigan pressed him to pay child support, he refused.
The resulting legal battle became one of the most high-profile cases on men's reproductive rights to date. But since the case, which reached its ten-year anniversary this year, not much has changed.
In court, then 25-year-old Dubay put forward a novel legal argument: When a child is unplanned, men should have an equivalent right to a woman's right to abortion. In other words, women can choose if they want to opt out of the legal and financial responsibilities that come with parenthood—by aborting a fetus—and therefore, so should men.
To be clear, Dubay wasn't arguing that a man should actually be able to decide whether or not a woman should have an abortion. Rather, if a woman decides to have the child, the man involved should have the ability to opt out of the legal obligations of fatherhood. That means no legal relationship with the child and no liability to pay child support for the next 18 years.
The presiding judge ruled against Dubay, noting: "If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case."
The case was dubbed "the male equivalent of Roe v. Wade," with both the National Center for Men and the National Organization for Women chiming in as a media circus unfolded.
"Roe v. Wade gave women control of their reproductive lives, but nothing in the law changed for men," Mel Feit, Director of the National Center for Men, wrote in a press release at the time. "Women now have control of their lives after an unplanned conception but men are routinely forced to give up control, forced to be financially responsible for choices only women are permitted to make, forced to relinquish reproductive choice."
Kim Gandy, then president of the National Organization of Women, told CNN, "Men have been trying to get out of responsibility for their children for years. This one shouldn't get away with it."
Dubay, for his part, would explain his side of the story in a live interview on Dr. Phil:"Forcing me to be a father financially, mentally, and physically is definitely not something that I feel is fair," he said on the show. When grilled about the elephant in the room—contraception—Dubay said they had used condoms initially but not towards the end of their brief relationship. Wells also told him she was on the pill.
By the time of that interview, Wells had given birth. She stayed well out of the limelight but issued a written statement saying her focus was on providing a nurturing home for baby Elizabeth. "I am disappointed that Matt has decided not to participate in Elizabeth's life so far, and has instead chosen to contest any responsibility from our consensual actions last year," she wrote. "I believe life begins at conception and blossoms. I take responsibility for my acts and will do my best, as an adult and a mother, to protect and provide for our daughter."
Dubay appealed, but was again denied. Nancy Gibbs, then a staff writer and now editor of TIME, described the case as a "legal stunt"—but pointed out that "as a way of calling attention to double standards and unintended consequences, the campaign makes sense."
In other words, Dubay never had a shot at winning, but the case sparked a debate worth having. Should men have as much of a right to control their reproductive lives and financial futures as women do?
On the one hand, there's the argument that there should be a level playing field—women and men should both have the right to opt out of parenthood if they want to. A woman can choose whether to have an abortion to keep the child, without the man involved interfering with her choice. However, if she does decide to keep the child, the man should have the right to choose whether he wants to become a father and take on the legal rights and responsibilities that come with that. Both should be able to decide what they want to do, based on their own individual circumstances and beliefs, and neither should be able to interfere with the other person's decision. Essentially, reproductive equality and autonomy, for both genders.
The way this would work in practice is a little murkier. Frances Goldscheider, a now-retired sociology professor at Brown University, was one of the first academics to put forward a proposal for what she called a "financial abortion." It would work something like this: A man would be notified when a child was accidentally conceived, and he would have the opportunity to decide whether or not to undertake the legal rights and responsibilities of parenthood. The decision would need to be made in a short window of time and once the man had made his decision, he would be bound by it for life. This means a guy couldn't decide to opt out of fatherhood a few years down the track when it no longer suited him. The decision would also be recorded legally—perhaps on the child's birth certificate, or in a court order.
But critics point out that equal reproductive rights for men and women are simply not realistic. As the judges in Dubay's case concluded, a woman's right to abortion and a man's right to reject fatherhood are not quite analogous. With abortion, a woman decides whether or not to bring a child into existence. The right of the child to a legal relationship with his or her father—and in particular, the right to financial support to help with the child's upbringing—should trump the right of a man to opt out. Plus, at the end of the day, both parents were responsible for the conception of the child, so both should take responsibility for the child, should that child be born.
Susan Appleton, a professor at the Washington University School of Law, has written extensively on reproduction and regret, most recently for the Yale Journal of Law and Feminism. She told me that in family law, there is a strong policy of "personal responsibility." Or, in other words, "Dubay made the choice to engage in heterosexual intercourse without using contraception himself; he assumed the risk of becoming a parent when he ejaculated."
Appleton teaches cases like Dubay v. Wells to students in her Family Law course who she says love discussing it. "They appreciate Dubay's arguments about unfairness and inequality, but they almost always reach the conclusion that no other outcome is possible."
Ten years later, the status quo that Dubay challenged in Dubay v. Wells remains in place today. And there haven't been many similar lawsuits since, in part because of the precedent set by the outcome of Dubay v. Wells.
Politicians have also declined to propose legislative changes that would allow men to have reproductive rights, perhaps due to the assumption that doing so would open the proverbial floodgates and result in an unprecedented number of men opting out of fatherhood. For the foreseeable future, at least, the idea of a man's right to choose will continue to gather dust in the legal history books.
Zoë Lawton is a legal researcher and writer who specializes in family law. Follow her on Facebook.