12/07/2005 07:53 pm ET | Updated May 25, 2011

Why My "Man’s Right to Choose" Abortion Argument is Made from a Feminist Perspective

I want to take the opportunity to elaborate the position from which I was arguing in the NY Times, while also backing off on a couple points.

One of the (main) modernist projects is about erasing the limitations of biology. If someone is wheelchair bound, we do not -- at least since the passage of the Americans with Disability Act – tell him/her that s/he cannot see a movie because biology has made him unable to walk up the flight of stairs to enter the theater. In fact, we actively try to mitigate the effects of physical differences even though it comes at enormous costs to the rest of society -- particularly small business owners. Likewise, we reject social assignment based on other physical characteristics such as skin tone, most notably. And many progressives (including myself) think it absurd that only a pair of individuals who have the opposite sex organs should be able to enter the social and economic contract of a marriage with all the rights (and responsibilities) attendant to that contract.

Think of men’s inability to conceive as a disability that needs to be overcome by law where science is not able: nowhere is this brought into sharper focus than in the differences between female and male same sex couples. Someday there may be an artificial womb that will allow (gay) men to have kids by rushing off to the ova bank, and then this may all be moot. More likely, and more confusing, is the likelihood that soon enough there will exist the capability for embryo transplants.

What then, if there is a willing recipient? And what if a woman’s health risks are similar for the two procedures (abortion or transplant)? Should the decision making still rest entirely with women?

And it is not just about men’s rights; in the long run it is about women’s rights too. You can say that it is unfair that men can’t bear children and -- so what -- men just need to get used to it. (This is what Dahlia Lithwick argued in 2002.

However, I would argue that it is this biologically-based argument opens the floodgates for all sorts of essentializing arguments; Larry Summers’ claims about differences between male and female brains are only the beginning. But the rhetorical worries aside, research shows that the main roots of continued gender inequality in the workplace (and home) rests in the asymmetry of the “exit” strategy from childrearing -- the power garnered by men through this implicit threat.

Why is it that men seem to exit from child rearing responsibilities much more often than women do?

One answer may be because of paternity uncertainty. Since a dad can never know that a child is his, he has a weaker attachment. This evolutionary psychology argument should be made moot by genetic testing.

But the advent of testing -- though still young -- has not changed the number of women raising children alone (or with minimal help from their partners). Of course, there may be a significant cultural time lag in the impact of such technologies in redefining social roles. A second possible reason for unequal child care responsibilities is also biologically based: it could be due to the head start in the relationship between mother and child (and the physical and emotional investment of pregnancy) and the continued “special” nature of the relationship when mothers breast feed. The list of biologically based differences could come into play -- perhaps there is pheromonal communication between moms and children that is absent in the father-child relationship; perhaps it is due to the fact that the Y chromosome contributes relatively little genetic material so that on average men contribute less genetic material (however, if this were the case one might expect a more robust relationship between fathers and daughters, but research shows that fathers are less attached to families when the offspring are female); perhaps with a wider average curvature in the crook of the arm then men, women are built for holding babies.

But there are lots of instances where technology has overcome biological limitations. There’s the baby born for those awkward male carriers. There’s the bottle -- which at another time was seen as an instrument of women’s liberation. There just happens not to be the momb (the male womb) -- at least not yet. Until then there exists an asymmetry of rights and responsibilities. It is this asymmetry – not the biological differences per se -- that I argue lead to the oppression of women through the underlying logic of unequal family roles.

Fortunately, not just technology, but civil law as well -- one of the other hallmarks of modern society (according to Durkheim, at least) has given us a way to correct for these differences: through compensation. One form of compensation is child support. Of course, financial child support does not cover all the labor, risks, care, etc. that is required to bring a child into the world or raise it. And non-resident moms, of course, are equally liable for child support as are dads. So, from birth onward, we have equivalence of sorts (even though many states still allow a woman to give up her child for adoption even if the father objects and even though child support is generally inadequate and ill-enforced).

The key to my argument is separating out the costs and risks of pregnancy from the issue of the child as joint property -- for lack of a better word. If you believe that a fetus is only a woman’s and part of her body, then the argument stops there. But then shouldn’t paternal obligations be abrogated too (other than compensating the woman for the “tort” he has inflicted by inseminating her -- i.e. perhaps paying for the cost of an abortion and associated pain and suffering)? From the point of view of the potential “father,” what distinction is there between his responsibilities to a bunch of cells when it is in the uterus to it when it is born if all the material “stuff” that created that child is donated, if you will, by the mother save half of the instruction manual (i.e. DNA)? The answer may be that he engaged in contract with the woman when he engaged in intercourse. Perfectly reasonable is to say that sex is not a contract, in which case, pregnancy should be non-binding on the father, no? (But can the same be said for sex within the marriage contract?) Again, if it all boils down to the fact that “it’s a woman’s body” then let’s have a real discussion of what can and can’t be expected of fathers.

When might a father’s rights and obligations be said to start? At birth, would be the answer for many people. However, if the issue is the pregnancy risks / costs, the risks of childbirth and the hijacking of the woman’s body toward these ends, then what are we to make of a father’s rights when a fetus is say, 25 weeks -- well within the realm of viability? If the issue is getting the object out of the woman’s uterus, and she chooses to do that post the point of external survivability, then does a man have any say whether the fetus is “born” or “aborted” as long as it is out of her body -- i.e. about the method of extraction?

Another question is why the state needs to get involved here at all?

If a man cannot properly negotiate reproductive decisions with his partner, then how would the courts do any better? I would hope and assume that in almost all cases sexual partners would be able to work out a suitable solution privately. But in some cases this fails. You might argue that it is equally wrong for the state to get involved in custody arrangements and in adoption proceedings, for that matter. Fine. Or you might argue that there is a difference because the object of debate is the woman’s body. This gets us back to the notion that a fetus is part of her body -- an argument that was more sustainable, I would say, before the advent of ultrasound and other technologies that let us “see” into the womb.

If I view the fetus as distinct from the woman’s body, why not go all the way then, and just be pro-life? Again, this is a matter of separating the pregnancy issues from the externality -- if you will -- of the child to be born. Notice that I am not advocating that men should not be able to inflict an abortion. Rather, the notion is that we should act to preserve life that is wanted by at least one of the progenitors. (My life-preserving bias also causes me to support mandatory organ donations post-death [and in some cases, perhaps even pre-death] as well as be vehemently anti-death penalty.)

If the purpose of abortion is to avoid unwanted children then the child wanted by his father is not, in fact, “unwanted.” This must be weighed in tandem with the obvious physical, emotional and other risks and costs associated with the pregnancy itself. To the extent that abortion takes place to end an unwanted pregnancy (not prevent a birth), then it seems to fall entirely in a woman’s domain. However, the complicating factor is the view of the fetus as having two responsible parties with rights over it. Is a better solution a negotiated settlement where the man provides a nest egg to guarantee the support of the child (agrees to have wages docked, etc.) and also compensates the woman for her pregnancy costs (in terms of health risks, lost wages, and so on minus the risks attendant to an abortion)? Non-binding arbitration might also present a potential solution. And of course, as an alternative I think it is entirely logical to say that fatherhood should be entirely voluntary -- absent any rights or responsibilities until entered to through written contract. (One view of insemination sees it as a gift contract, a donation of sperm over which the man has no further claims; however, this flies in the face of the financial responsibility of the father for what the woman does with that gift.) Along these lines, perhaps there should be a pre-sex contract that partners can sign to firm up their reproductive rights and/or responsibilities (downloadable in PDF format for those moments of passion -- might take less time than fumbling with a condom).

We must also keep in mind that if men had rights in reproductive decision-making a new generalized equilibrium would emerge. Heterosexual couples might enter sexual relationships more cautiously (on average) with adequate discussion of reproductive possibilities. Practice of birth control may become more widespread. And, I think, fathers would be more involved in the raising of children, thereby easing the second shift for women and leading to greater gender equality. I recognize that structure of negotiations is such that men and women are starting from unequal positions in the wider world; however, that does not mean that the solution is to ignore reproductive rights differences but rather to actively engage them within that context.

You might counter that other societies -- such as many sub-Saharan African countries -- demonstrate enormous degrees of gender inequality with little salience of abortion. However, we must also consider that the social context differs widely in developing countries where intergenerational flows of investment generally flow from children (in the form of labor and social insurance) to parents, as compared to the rich world where children are the recipients of transfers and are primarily seen for their non-pecuniary benefits. The incentive structure is entirely different with respect to reproduction (and therefore gender inequality).

As with my op-ed on reparations for slavery or the elimination of personhood for corporations (in exchange for the elimination of the dividend tax), I sought in the abortion piece to explore underlying logics that are buried within a debate (or lack of debate). Where I failed my latest effort was in falling out of the interrogative voice and instead slipping into the declarative in the following line: “If a father is willing to legally commit to raising a child with no help from the mother he should be able to obtain an injunction against the abortion of the fetus he helped create.” Many people read my “injunction” line of the piece as advocating the right of the man/state to chain a woman to her bed for nine months. And herewith lies the part I regret. Of course it is not really enforceable or desirable. I had a much longer portion of the essay going into the complications here; however, I chose to delete that for fear of getting too deep into public policy minutiae in a context where I wanted to stimulate debate. However, I now realize that I failed to edit out the key sentence. I duly retract this line and welcome further debate on how to solve this terribly fraught issue of utmost importance.

****Response to comments: I can accept that it is "your" body but will someone please then just engage the argument that fatherhood should then be voluntary? Or make it explicit that in this case, rights and responsibilities are decoupled, it is not fair, and men should get over it. But in that case, are other forms of gender inequality--such as a $1 to .76 cents wage ratio okay too? Should women just "get over it too and accept that life isn't fair? All I'm saying is that we need a real dialogue about the underlying devil's deal that is being cut across this issue--especially since parenthood is the prime root of the wage penalty. I should have framed my argument as: "let's reexamine the debate over fatherhood given it's (only) a woman's right to choose" rather than "let's reexamine the abortion debate, given fathers' responsibilities..." ****