The post from yesterday raises interesting issues about causation and liability for child support. You may recall that the rationale of the court is (at least in part) that since the husband’s agreement to IVF was one of the things that set the whole process of creating a child in motion, he was responsible for child support. This is a line of reasoning that has been expressed by many commenters here in the past–it’s rather like “you break it, you pay for it.” It’s a variation on a pretty standard invocation of liability for damages to remedy a harm–something quite well-established in law.
Now I do understand the general idea that if you cause something to happen then you are responsible for it. (Indeed, this is a pillar of my approach of parenting.) But it isn’t always the easy answer it may seem and it isn’t always the right approach.
For instance, consider a child created via IVF, as the court did in that Massachusetts case. The court’s theory is that the husband and wife who commission the IVF cause the child to be brought into being and so they are responsible for the child. This makes a certain amount of sense.
But I know perfectly well that some of you are going to say that the responsiblity lies with the unidentified man and woman who provided the sperm. And though it is not a position I agree with, I can sort of see that you can say but for their actions, there would be no child. Thus, their actions brought the child into being and therefore they are responsible.
It even seems to me (though no one advances this argument, really) that the doctor and lab techs involved cause the child to be brought into being. After all–if they don’t do their jobs, no child.
Most law students will recognize the problem here. Causation, which seems such a nice and logical test, turns out to be indeterminate. What I mean is that it is not a test that actually determines the outcome–it is just another way of looking at the choices you had for responsible parties to begin with. It may eliminate some (for instance, I had nothing to do with the conception of this child, so I’m not in the pool of possible payors), but it doesn’t tell you which one to pick. (You might also think of the children’s rhyme that begins “For the want of a nail,” which illustrates a related causation problem.)
All of this means while I appreciate the court’s point about causation, it’s not a substitute for a full analysis. In the same way, it’s not an full justification for why a genetic parent bears liability to simply say “because without the gamete there can be no child.” It seems to me one must still explain why this person and not that one bears the responsibility. (You could also, I think, say they both do, but that opens other questions as to how the responsiblity is shared between them.)
There’s a second issue with the causation approach. Relying on causation might be used to figure out who has to be child support. But child support isn’t the only thing I care about. What about the allocation of parental rights–the rights to make major decisions on behalf of the child, to decide where she or he goes to school and who she or he sees and so on?
It is much less obvious to me that parental rights should be awarded based on a theory of causation. This isn’t like “you break it/you pay for it” anymore. Parental rights are a privilege and a power. They are the right to control the child’s life.
I’d like to think that at some general level we at least consider what is best for children before we settle on a method for assigning parental rights. Why is it in the interests of children general to award control over them to the people who helped create them? Isn’t this treating them a bit like property? I made it and so I can do what I want with it?
Consider a worst case scenario. A rapist is unquestionably responsible for impregnating his victim, should she become pregnant. Maybe this means that he is therefore liable for supporting that child if she chooses to bear the child. But need it also follow that he is entitled to parental rights vis-a-vis that child? A causation argument will support his claim.
As I close for now, let me highlight something that might already be obvious: I don’t necessarily see that we have to link responsiblity for child support with allocation of parental rights. If one really wants to, maybe you can assign obligations for support based on some sort of causation theory. It might make some sense, as an analog to tort law. But allocating parental rights is really a different question and ought to at least merit separate consideration.