Causation, Responsibility, Child Support and Parental Rights

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.

About these ads

3 responses to “Causation, Responsibility, Child Support and Parental Rights

  1. Its pretty clear there Julie that the doctors and intended parents and lab techs ect are like accomplices or like people aiding and abetting the people actually responsible for the child’s existence. My analogy is real clear when I say that they are accessories to the crime of abandonment. I’d love to see physicians loose their liscenses for aiding and abetting donors in the act of abandoning their offspring at birth. That would be so great.

    • It may be pretty clear to you but my point here is that this is just what you are saying and how you see it. Others will say that there is no abandonment because it is always clear that the person who takes the gametes plans to be a parent. These are different ways of viewing things. You can argue that one is better then the other, but there’s not much measurable truth to any of this. In the same way, you can talk about different players causing the result, but you cannot really prove these things.

      This is one of the things people find really frustrating about torts (the first year law school class.) Where you actually draw the lines turns out to be sort of arbitrary.

  2. Each person is a unique combination of physical traits inherited from their parents. Change one of the parents and you’d get a different individual. Those two people are the only two people who could have caused this particular individual to exist as we see them today.
    Our person’s existence is entirely dependent upon those two people having reproduced together.

    interesting article on cause
    http://www.law2.byu.edu/lawreview/archives/2007/4/1SWINK.FIN.pdf

    You can say (and you have) that other people caused those two people to reproduce and that therefore means they caused the person to exist. Or that a doctor that a doctor caused the child to exist. First I want to point out that the “A” in AID that used to stand for artificial, now stands for assisted. Doctors assist individuals who want to reproduce by offering treatments that make fertilization more precise and efficient. They don’t cause children to exist, they assist people in their act of human reproduction. The people consent to medical treatment Julie saying that they want to reproduce and want the doctor to help. Helper. Also our unique person could exist if the doctor were a different person. The specific doctor is not essential to the existence of the person, a different person could have helped and our unique person would be the same person. The specific doctor could cause damage to our unique person by some kind of lab accident that he alone caused the damage say by removing a chromosome or maybe spilling some hot coffee on the egg or something.

    And what of the the people that commission children? It’s them that want the children and courts have held them responsible for causing kids to exist. Yeah but they did not actually cause them to exist the court just said that because there is nobody else to hang the support obligation on and why not give the kid to the people that want him? Problem with that is they paid a fee to get him and the judges ruling results in another successful black market style adoption where all the safeguards are short cut and the original record is falsified. The commissioning party is an assistant a helper just like the doctor could be a different person doing the same type of assistance and our person would be the same – there is no need for the helper to be a unique specific individual anyone could assume their helping position and our person would be the same person. But change one of the two contributing parents and you get a whole different person. Commissioners help the parents by paying for their fertility treatment and by raising their offspring with them or for them depending on which of the two parents we are talking about rearing or abandoning. Remember that the donor wanted to create offspring they also sign medical consent forms saying they are desirous of receiving fertility treatment for the purpose of producing offspring and consent to the doctor using their sperm or eggs to create embryos that if born will be their offspring and they release the medical professional from any liability – especially for any child support. So to say that the doctors caused the child to exist is not logical at all. To say commissioners caused the kid to exist is not logical at all either or they would not need or want to have donors sign those agreements where they promise to abandon parental obligations and where the commissioners agree to not hold the donor liable for support.

    It’s all word games.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s