MICHEL MARTIN, host:
This is TALK OF THE NATION. I'm Michel Martin in Washington, sitting in for Neal Conan. It's a taunt hear by any player ever bested in a pickup basketball game. Who's your daddy? But at the time when the meaning of family seems to shift and change by the year, the question has taken on a new and urgent meaning.
Two cases have captured the struggle. In Florida, a man is fighting for his parental rights after his former girlfriend delivered a baby he didn't know about, and he failed to file with a state registry for unwed fathers. In Michigan, another man is fighting to end his financial obligations to a child he says he did not consent to conceive. Both illustrate the new politics of fatherhood.
Historically, women have had the responsibility of childrearing, but few rights. Now, increasingly, men are asserting that they deserve more control over the decision to procreate, or to put children up for adoption. Some states have attempted to address this issue. For example, the majority have putative father registries to allow men to be notified in the event of a pending adoption. It's unclear whether these registries actually work as intended.
Later in the program, we'll talk about how parental rights have changed over the years, but first how should father's rights be protected? We would like to hear from fathers and mothers this hour. Our number here in Washington is 800-989-8255. That's 800-989-TALK. Our e-mail address is email@example.com.
First, we go to Erik Smith. Mr. Smith is an Ohio paralegal who fathered a son in Texas and fought for his parental rights after his son's placement with an adoptive family, eventually, winning visitation. He joins us from member station WCDE in Columbus, Ohio. Welcome to the program, Mr. Smith.
Mr. ERIK SMITH (Father's Rights Advocate): Thank you.
MARTIN: How old is your son?
Mr. SMITH: He's a teenager now.
MARTIN: A teenager. How often...
Mr. SMITH: Mm-hmm.
MARTIN: ...well, should, do you mind? Twelve, 13, 15?
Mr. SMITH: Thirteen.
Mr. SMITH: Mm-hmm.
MARTIN: How often do you get to see him?
Mr. SMITH: Pretty much as often as I want, but we have a custody agreement that spells out visitation, so it's pretty regular.
MARTIN: Well, do you mind if I ask how regular is regular? Is it every month? Every six months?
Mr. SMITH: Every other weekend, every other weekend. Mm-hmm.
MARTIN: So you have a pretty close relationship with him then, and you're really...
Mr. SMITH: Yeah.
MARTIN: ...able to be part of his life.
Mr. SMITH: Yeah, yeah, and that was the intent, of course.
MARTIN: And briefly, 'cause I know it's a complicated story, but how did this happen? How did you get into the situation where you had to fight to see him?
Mr. SMITH: Well, I don't know if I got into it. I was sort of put into it. But I met my son's natural mother in the fall of 1984 when I was a student at the University of South Dakota, and we were friends for several years, and then we started dating in, like, '92, and she became pregnant right away. And when she did, she, basically, in a nutshell, freaked out and started talking about abortion and then suicide and then what are we gonna do, and...
MARTIN: Then you knew she was pregnant. This was not a secret.
Mr. SMITH: Right.
MARTIN: Right. Uh-huh.
Mr. SMITH: Right. Right. And, but she did, after maybe three weeks or a month later, she just left and didn't really tell me exactly where she was going or anything, and I had to find her.
MARTIN: How did you go about finding her?
Mr. SMITH: Well, she would call me about every month or so and not really tell me anything. She would be sort of emotionally distraught and talking about her new job and whatnot, but she wouldn't tell me where she was, and I kept asking, and finally I had, I had been mislead somewhat on a due date for the child, and I'd gotten some bad legal advise in the interim, too.
But to make a long story short, I ended up figuring out where she'd gone. She had been engaged to someone else during that time, too, and he eventually came by and, came to me and told me where she was and what was going on.
MARTIN: Had you communicated to her that you wanted to raise the baby?
Mr. SMITH: I had not communicated that to her at first, no, and was...
MARTIN: Why was that? Because you didn't know what you wanted? Or you just, you were shocked yourself? You didn't know what...
Mr. SMITH: Well, partly...
MARTIN: ...you didn't know what you wanted to do?
Mr. SMITH: ...partly, partly, but it would've been foolish to do so. She would have taken off and just redoubled her efforts. I mean, I can see now that the fact that she knew that I didn't know is probably what saved me, because she stayed right in the locale where she was. And had she gone to another state or somewhere else, you know, I might not be here today.
MARTIN: But how did you get to the point where you decided that you did want to raise the child, or you at least wanted to know the child? How did that whole thing happen?
Mr. SMITH: Well, I mean, it's a gradual thing. You gotta remember, you know, a guy who, uh, it takes him time to accept a pregnancy, just like it does a woman. So, you know, and my son's mother wasn't really there for me, so it was kind of intimidating, and I was younger at the time, but eventually I just realized that something bad was going on when I was being avoided and the due dates, approximate due date had come and gone, and I wasn't finding out anything. And then I, and then people would report, where I was living in South Dakota, that they had seen my son's mother with no child, and now, and then I was shocked. And, you know, in a nutshell, that's what it was, and I just said this, there's just something terribly wrong here.
MARTIN: But tell me, I was interested in how did your paternal feelings get stimulated? Was it that you were frightened for the child because your former partner was in such bad shape? Or what happened that made you decide you wanted to be involved?
Mr. SMITH: Well, I mean, you're sort of asking for a black and white answer, but the truth is, I had, as the time had gone on, I began having dreams and just feeling more and more like my son was going away from me, and I don't think anything just happens. It's just I came up with a lot of suspicion, and I just said, no, this is wrong, you know, to let my son go out, or my child, at that time I didn't know if it was a boy or a girl, but it, you know, to let my child just go out there, I couldn't deal with that. And, you know, that's how it happened, really.
MARTIN: And I know that these are very personal questions, and...
Mr. SMITH: Mm hmm.
MARTIN: ...a very difficult topic even though your son is 13 now, and if I could just ask you briefly, how long did it take you before you were able to reestablish connection, or establish, I should say, connection with the child, and how long did that whole process (unintelligible)...
Mr. SMITH: I met my son when he was five months old.
Mr. SMITH: And then I met him again when he was nine months old, and then during the litigation, which was a long time, I would have visitation with him, you know, whenever I could make it. We were dealing with three different states here, too. So that's the way that happened.
MARTIN: I'd like to bring in another guest, and that's Mary Beck. She teaches at the University of Missouri School of Law. She's also an adoption lawyer. She joins us from member station KBIA in Columbia, Missouri. Welcome, Mary.
Professor MARY BECK (School of Law, University of Missouri): Thank you.
MARTIN: Mary, how unusual is Erik Smith's story?
Professor BECK: I don't think it's terribly unusual. I think what is a little unusual is that he was of, he is a very earnest father who pursued taking responsibility for his son. That doesn't happen all the time.
MARTIN: It seems that we are hearing more and more stories like this, and I'm just wondering is this, and forgive me, no disrespect to you, but this is the reason we in the media are interested in these, because it's unusual. Or is it just something that has been happening all along, and we just have not paid attention to it or that the, that people like yourself who are in the system have represented cases like this in past, and we just didn't happen to be talking about it?
Professor BECK: I think that certain cases rise to the attention of the media because they are somewhat unusual, and they go to litigation because they are unusual and they tug at our heart strings. I think that the fact is that, such cases like Mr. Smith's are more unusual than normative.
MARTIN: And I think the issue that brought us here is this whole question of punitive father's registries. And this, to me, is very complicated and so, I guess, Erik, and this is part of the problem is that you ran afoul of one of these registries--that you, this is one of the things that impeded your ability to get access to your son initially, because you didn't sign up for this thing. So, Mary Beck, if you would just tell me what these registries are, what they're supposed to do? And then I'm going to ask Erik to tell me, you know, what happened, what his experience was.
Professor BECK: Registries are typically located in a bureau of vital records of the different states. Some 30-plus states have a registry where a unwed father can indicate his desire to claim paternity to a child. A lot of the registries are just, not a lot, a few of the registries are just that, a place for a father to indicate a desire to claim a child.
But the majority of registries have other parameters, such as the registered father absolutely gets notice of any adoption petition or protective custody action taken in that state for his child. Additionally, the registries may have a cut-off point, so that if the father registers within the nine months of pregnancy, plus so many days after birth, then that father gets notice. But if he registers two months after birth, he may not be entitled to notice in that state.
Other provisions include privacy guarantees for the mother, such that she may not be required to notify the father of pregnancy. She may not be required to identify the father to a court for adoption purposes. Additionally, the registries typically carry fraud provisions to protect the unwed father, who tries to determine whether or not a woman is pregnant. And the woman may lie to that father.
Those are, and then there are some…
MARTIN: I think that…
Professor BECK: …registries that…
MARTIN: I think that, I'm sorry, Mary, I just want to bring Erik back into this. And say, did you, Erik, did you know about these punitive father registries when you first started trying to figure out what was going on with the…
Mr. SMITH: Well, first of all…
MARTIN: Did you register, and did it make any difference?
Mr. SMITH: …we have to define punitive father registry. I mean, there's a difference a registry and claiming paternity. Back in '93, the only state that had a registry as far as I knew was New York. So, all we had in, all they had Texas and South Dakota, where I lived, were paternity claims. And so we, really, if you make a registry synonymous with a paternity claim, and then say that claim has to be filed where ever it's filed within a certain number of days. All you're doing…
MARTIN: Erik, Erik.
Mr. SMITH: …is keeping old law and moving the time line up.
MARTIN: Erik, I'm sorry, I'm going to get the rest of your answer after a break. We need to take a short break. We're talking about father's rights this hour. We're taking your calls at 800-989-TALK. You can send us e-mail, the address is TALK@NPR.org. I'm Michel Martin. It's TALK OF THE NATION from NPR News.
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MARTIN: This is TALK OF THE NATION. I'm Michel Martin in Washington. We're talking about the rights of fathers this hour. Are we leaving men out in the cold in reproductive decisions? Should they have any say? You're invited to join the discussion. Give us a call at 800-989-TALK. Our e-mail address is
Still with us is Mary Beck. She's an adoption lawyer and teaches at the University of Missouri of School of Law. And Erik Smith, he's a father who lost his child to adoption, but won the right to visit him.
Erik, before the break you were telling us about these registries, and I think you and Mary both made the point that this is very complicated, it varies state by state. So, if I could just focus on your situation and just tell me, did you know about these registries or this registry? Did it have any bearing on your situation?
Mr. SMITH: There was no registry back when I had my case. The only state that had a registry back then, as far as I recall, is New York. So what they had, what were paternity actions, you had to bring a paternity action, and in that action, you claim paternity, which I did.
There wasn't a strict timeline, so I did not miss out on a registry. In fact, it was my case, which was right at the same time as Baby Jessica and Baby Richard, that spurred on Texas to get a punitive father registry, so that guys like me, they could just get rid of us summarily, instead of having drawn out litigation.
MARTIN: I'd like to go to a caller now in--let's go to Jacksonville, Florida, and to Emery(ph). Emery, what's on your mind?
EMERY (Caller): Hi, I was listening to the story here today and it struck very, very close to my heart. When I was a young man in college, I was dating a woman at the time, and living together, and she got pregnant. And she had no inclination, desire to ever be a parent. And we were faced with the decision, and one of the things she did was set up an appointment with the state-sponsored adoption services. And I went with her.
And when we got there, they were talking to us, and what the options were, and I was asking questions. And the woman looked at me and she said, you have no place here. You don't, you know, we don't have to talk to you. And I said, excuse me, why do you not have to talk to me? She said, well this is her decision, these aren't your decisions.
And I was appalled, and I looked at her and I said, if you'd like to continue our relationship we can leave. And that point it, you know, pretty much became you give the baby up for adoption, I'm going to fight to get it. And great, you know, thankfully we stayed together and had the child. But it was just shocking to me that I had no rights. And I'm very happy to hear that these days that unwed fathers have some rights that I didn't enjoy 18 years ago.
MARTIN: Emery, how old were you at the time?
EMERY: I was 19 years old. Nineteen years old. My son is now starting school at the same college I went to. And I since had four more sons. And I just, I'm appalled, and I just, the fact that men, there are men out there today, especially men today who have been raised in a different society, men want to have their children. Men want to be a part of their children's lives. And the fact that, you know, that the states would not allow a man, it's in the best interest of every child to have two parents. And to make it difficult for a father to be a part of a child's life is just reprehensible.
MARTIN: Well, thank you for the call, Emery.
EMERY: Thank you.
MARTIN: And let's go to Burlington, Wisconsin, and Steve. Steve, what's on your mind?
STEVE (Caller): Hi, how are you doing?
MARTIN: Very well, thanks for calling.
STEVE: This, whew, I almost drove off the road when I heard this topic, and it's, it hits home solidly with me. I've got about, a daughter that's going to be six in June. I've never seen her. Her mother disappeared when she was probably two months pregnant, two-and-a-half months pregnant. I filled out all the paperwork in Illinois to the best of my ability. And I didn't even know what I was supposed to do, I just made a ton of phone calls and I asked for help.
And when I did get an attorney at Christmas time, she said there's nothing I can do. You did everything I would have told you to do. So, I had the paternity papers filled out. I guessed the day that she was going to be born, and we checked hospitals, found out which hospital--naturally, they don't give you any information--while I waited for the state to send me all the information they were supposed to send me, and nothing happened. And when 30th day came, I called the state, and they said we have no record of your paternity papers.
And it just left me hanging, I didn't know what to do. Two months…
MARTIN: Steve, can I just ask you a question here?
MARTIN: Which is, what was the status of your relationship with the mother?
STEVE: We were dating, and we were talking about getting married, nothing was set in stone. But we were not married.
MARTIN: And did the relationship become hostile after the pregnancy…
MARTIN: …developed or…
STEVEN: Actually it was, it actually I thought we got closer, because then we had talked about getting married before the baby was born. And the day that she disappeared, she had called me up several times during the day telling me she loved me, and then came home that night and said the same thing and walked out. And that was the last I saw of her.
MARTIN: Have you ever seen her since?
STEVE: No, I've never seen her since. But two, when Heidi was two years old, that's my daughter, I got a summons to go to court to give up my father's rights. And included with that summons was all the paperwork that the State of Illinois said that they did not have, was copies of all that paperwork. And I had sold everything I had to get an attorney to do the best I could. We stopped the adoption, and we were working on visitation and the cost is just so tremendous to keep going back to court over and over and over again. And I finally ran out of funds, and then she disappeared about the same time. And it's been three years now, three and a half years, and I haven't heard anything since.
MARTIN: A very difficult story, Steve, thank you for calling us.
MARTIN: Mary, what, Mary Beck, I wanted to ask you about this, what if, that is a terrible story. I think anybody could agree that that…
Professor BECK: Yes.
MARTIN: …is a very difficult situation. And going back to this question, you know, how does society intervene in these very difficult relationship issues? What about this issue of a punitive father's registry? Would something like that, if Steve had signed himself up for something like that, would that have allowed him to address this in a more, a more dignified, less horrible fashion?
Professor BECK: Yes, and a lot cheaper, too. He could have filed a postcard with the, I think he said, Illinois registry. And that would have assured him notice of any petition for adoption in Illinois. Now, one of the problems is, if his girlfriend had gone to another state to deliver her child and relinquish Heidi, I guess it is, to adoption, then his registration in Illinois would not protect him. Which is why Senator Mary Landrieu from Louisiana has a bill that she's close to introducing that would link all the different state registries. So that Steve's registration in Illinois would get him notice of an adoption petition filed in Missouri.
MARTIN: This is…
Professor BECK: And that would allow him to protect his rights.
MARTIN: Mary, I'm going to stop you just for a minute, because we're going to lose Erik very soon. I wanted to give Erik Smith a chance to talk about this. Do you, what do you think about these registries, do you think that would help address a situation like this, or do you think that still is inadequate? Erik Smith.
Mr. SMITH: I think most people in adoption land want a federal registry. And I think, I know Mary's written a couple articles on that. And I agree with the idea of a federal registry. So, it's not whether we should have a federal registry, but how is that federal registry going to be implemented? And what I fear about it is several things. One, is it going to be the only, the only way for a father to get his rights? What does he have to swear to when he files with the registry, can he just send a postcard, or does he have to actually go under oath and claim paternity of a certain child? How are we going to fund the registry, how are we going to promote the registry? And more importantly, how are we going to enforce advertising the registry?
I mean, congress says a lot of things, they enact a lot of things, but how do you enforce it? And then, are we going to have what the call “the pants on” statute, which means that any guy who has sex is already on constructive notice of an adoption petition.
MARTIN: And what would be wrong with that? Because given…
Mr. SMITH: I think…
MARTIN: …given that, forgive me, Erik.
Mr. SMITH: Mm-hmm.
MARTIN: And I realize this is very personal, but given that…
Mr. SMITH: Mm-hmm.
MARTIN: …birth control is available for men.
Mr. SMITH: Right.
MARTIN: Men have access to birth control that they can control.
Mr. SMITH: Mm-hmm.
MARTIN: What's so wrong about having it be, in essence, you're on notice that if you have unprotected sex then you could be…
Mr. SMITH: I'm not saying it's wrong. I'm nost saying it's necessarily…
MARTIN: potentially liable or.
Mr. SMITH: …wrong. I'm not saying it's necessarily wrong. The first issue is can a legislator actually tell somebody when they're on constructive notice of an adoption petition? Can a legislator actually do that, or is it a court's job to look at a factual situation and say, yes he should have known, or should not have known?
MARTIN: Is there a better idea?
Mr. STEVE: But my point…
MARTIN: I'm sorry, is there, I know because I know you have to go, but is there a better idea, very briefly?
Mr. SMITH: I've been telling people, I like the way Ohio does it. Ohio has one of these “pants on” statues. It then allows you to file the mother's info, your own info, even if you don't even know about a child, you do not have to swear paternity. All you have to do is list the information. You get in states like Utah and Florida, they make you swear actual paternity, even if mom, even if you don't know anything, or even if mom has other sexual partners. And then you cannot revoke it before the birth. I'm sorry, you cannot revoke it after the birth.
MARTIN: Okay, Erik Smith. Erik Smith thank you so much for joining us.
Mr. SMITH: You're welcome.
MARTIN: Erik joined us from member station WCVE in Columbus, Ohio. Thank you so much and good luck.
Mr. SMITH: Thank you.
MARTIN: And we're going to bring in some more callers, and I think we'll go to Charlotte, North Carolina, and to John. John what's on your mind?
JOHN (Caller): Thanks for taking my call, I just wanted you to know this is my much more prevalent, issue than you might even imagine. I had a similar experience. I've spent over $20,000 fighting for my daughter's rights. These are not rights of the mother, these are not rights of the father, these are the rights of the child to know both parents. I was going to--I'm financially responsible for this child. I was determined to have input into this child's life.
And for the last 40 years since birth control, since the pill, for the last 30 years since Roe versus Wade, women have had reproductive rights, reproductive freedom, the opportunity to have sex with who whenever, and they have demanded these rights. Fathers are sick and tired of being cast offs. These rights are the rights of the child.
MARTIN: Well, John, why don't you tell me what it is that--if you don't mind, what's your situation now? Can you see your daughter? Can you not see your daughter? And what rights would you like to have?
JOHN: Pardon me?
MARTIN: I'm sorry. What--tell me what your situation is, and are satisfied with it?
JOHN: My situation--it's an emotional issue. I dated a woman for two weeks. I was told again and again, one: I can't get pregnant, two: I'm on birth control. Yes, I had the opportunity to protect myself personally. I did not do that. Nine months later, I do have a child. I was aware of this pregnancy early on.
And I--from the day she was born, I was at the birth, though her mother and I do not have a romantic relationship I was, at her birth. From six weeks, I demanded physical visitation. If I was going to be financially responsible, I wanted to have my daughter. I took care of this child four to five nights a week, and I demanded my rights as a father.
MARTIN: I understand. John, thank you for calling us. That is a very complicated and emotional situation.
JOHN: It's much more prevalent then you would imagine, this situation, much more prevalent.
MARTIN: Thank you so much for calling us and telling us about your story.
JOHN: Fathers need to stand up for themselves. They need to demand their right.
MARTIN: Okay, thank you. The caller raised an interesting point, that there seems to be kind of a pendulum swing on these issues. At least that's how he's experienced it. So, let's try to put some of that into context. And I want to go to Carol Sanger. She's the Barbara Black professor of law at Columbia Law School. She joins us from our New York bureau. Welcome, Carol.
Professor CAROL SANGER (Law, Columbia University): Hello. Thank you.
MARTIN: Well, what about what the caller just said, that initially, well, he has, of course, his own perspective on this, but his sense is that the recent history favors the mother's rights, and that--so, I guess the first—and that, in his view, sort of, fathers have been pushed out of the equation. Fathers and their right to access to their children, or what's in the best interest of the children, in his view, has been given lesser priority. Do you think that that is accurate?
Professor SANGER: It's accurate in a sense that the formal test that's used now--well, first of all it depends about whether we're talking about custody in the context of divorce, where parents are fighting for a kid, or whether we're talking about the rights of unwed fathers and their right to associate, to make decisions with, to have to pay support for a child. So, which are thinking about?
MARTIN: You know what Carol, I'm going to take a short break just to say you're listening to TALK OF THE NATION from NPR News.
And we're talking to Carol Sanger, the Barbara Black professor of law at Columbia Law School, as well as Mary Beck, professor at the University of Missouri School of Law, who is an adoption lawyer. And we're talking about the rights of fathers in adoption cases, or the rights of fathers to decide when and how to procreate.
I was interested in just where the pendulum is in our conversation, because some people have a sense that, you know, maybe the media is exaggerating this issue, and some of our callers have said, look, this is far more prevalent then perhaps you may imagine, but that others would say that this is actually--these are sort of fairly unusual circumstances.
And so, I guess I'm sort of interested in whether or now--I guess what I'm--the first question I have is what animates custody rules to begin with? What--is it the mother's decision? Is it the custodial support? Is it what's perceived as the best interest of the child in whatever area we happen to be in?
Professor SANGER: Yes. You sort of packed all the answers into that one question, because custody started out that fathers more or less--so if we go back to, you know, all the way back to the Colonial period, fathers had complete authority over their children. They had the authority to decide everything about them and what they did.
And the reason was that children were thought to need sort of the strong hand of paternal discipline, and mothers were thought to be too emotional, too sentimental, you know, too lovey-dovey in a sense, and that's not what kids needed. So, as you know, until the mid-19th century, fathers had more rights to children than mothers did.
Then in the middle of the 19th century, there was sort of a change, and it was because we thought--we began to change what we thought children needed. There was a sense that children did well with some emotional affection, and that mothers were better able to do this. Another reason why it's argued this came about was that in the Colonial period, everybody worked together in the house--mothers, servants, fathers, children, everybody was all in it together.
But when Industrialization came, fathers began to work outside the home, and this left mothers with not a lot to do, and so some argue this was the invention of the motherhood that we know today. But from about the mid-19th century till 20 or 30 years ago, the main rule is mothers are better suited, and the formal rule is that mothers got custody under something called the Tender Years Presumption, which meant kids of tender years or little children were better off with their mothers. And that--go ahead.
MARTIN: I was going to ask Mary Beck, is there--is it your sense that there is now a pendulum swinging back in various legislatures around the country that suggest that perhaps the pendulum's gone too far to favor mother's rights for whatever reason, and that there needs to be more balance? Is that your sense that that's occurring, or do we just have a few high profile cases that happen to grab our attention?
Professor BECK: I think the evidence that states are trying to protect unwed fathers rights is that they are establishing punitive father registries, so that a father can foolproof, get foolproof notice of an adoption or a protective custody action for the price of a 39 cent postcard. So, I do think the pendulum is swinging. I see the punitive father registries as evidence of states protecting unwed fathers.
MARTIN: And we'll continue our discussion of father's rights after a short break as we take up the issue of fathers who want to terminate their responsibilities. I'm Michele Martin. It's TALK OF THE NATION from NPR News.
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MARTIN: This is TALK OF THE NATION. I'm Michele Martin in Washington.
Tomorrow on TALK OF THE NATION, author Karen Armstrong will join Neal Conan to talk about the world's greatest religions, and how they became what they are today. Today, we're talking about parental responsibility and the rights of unwed fathers. Still with us are Mary Beck, professor at the University of Missouri School of Law, and Carol Sanger, professor at Columbia University Law School. And in a few moments, we'll hear from Mel Feit from the National Center for Men.
If you'd like to join the conversation, call us at 800-989-TALK. Our email address is TALK@NPR.org.
MARTIN: Mary Beck, I know you have to go also, but I did want to ask you about something you brought up earlier, which is the legislation, the Proud Father Act that you've apparently been advising Senator Mary Landrieu on. What does this legislation do, and what situations would it address?
Professor BECK: It funds the states to develop compatible registries such that a national database can link all the registries. It requires every state to have a media campaign so that fathers will know about their ability to protect their rights simply and inexpensively, and it has certain requirements for each registry, such that any registered father gets notice. Every registry has to protect the privacy of mothers. There have to be consequences for failure to register, etcetera.
MARTIN: Mary Beck, thank you so much. Mary Beck is a professor of law at the University of Missouri. She joined us from member station KBIA. Thank you so much for joining us.
And I'd like to go to a caller, now. I think I'd like to go to, let's see, I'd like to go to Jennifer in Rochester, New York. Jennifer, what's on your mind?
JENNIFER (Caller): Hi, thank you so much for taking my call. My first comment, I guess, is that pregnancy is such a uniquely female situation, there's no equivalent for the guy. So, to me the choice that the guy makes is A, who he's having sex with, and B, whether or not to wear a condom.
I mean, you can't, you know, that caller earlier who was trying to, you know, have rights with his daughter, he didn't wear a condom. I mean, how can, you know, you don't wear a condom, and then you come back and say oh, no wait I want to have rights to say that, you know, two loving adults can't adopt this child because I want to raise it. It just seems crazy to me.
MARTIN: And Jennifer, it sounds like you have some company at home with you.
JENNIFER: Yeah. I have 8-month-old twins.
MARTIN: 8-month-old twins, oh, congratulations.
JENNIFER: Thank you.
MARTIN: Well, I don't know, that's an interesting--you know this might be a good time if--Jennifer if you can hold on for a minute, and given your situation, you may not be able to, but this might be a good time to bring in Mel Feit, who is the Director of the National Center for Men--I'm sorry, okay, well, I don't think Mel Feit is just ready yet, but I think we'll talk about that later. About the question of whether men can be asked to shoulder responsibilities if they don't have a right to participate in the initial decision to have a child. I don't know, Jennifer. What would you say about that?
JENNIFER: Well, it's a--I mean, the situation where, you know, if a girl is saying oh, yeah, you know, I can't get pregnant or whatever, I mean, you still have to say you know what, that's pretty rare, I think I'd better wear a condom just in case. I mean, or, you know, maybe this is somebody that I don't want to be with if they're going to be saying, you know, crazy stuff like that. I don't know. I mean, having gone through a pregnancy, there's just no equivalent that a guy could even get close to that experience in his life.
Professor SANGER: Michele?
MARTIN: Mm-hmm? Okay…
JENNIFER: I think that, you know, that they bare a little bit more responsibility than saying well she told me she couldn't get pregnant, you know.
MARTIN: Okay. Well, thank you Jennifer. Okay, Carol, what about Jennifer's point that pregnancy is very taxing to the body, and that there's no possible experience.
Professor SANGER: Yeah, and the law agrees with her. Yeah, the law quite agrees with her in a number of different ways, because the question about unwed fathers is really what does it take to be a father. And we have a couple of choices. It could be pure biology, it could be--which used to be very hard, because we didn't have testing, you know, we had blood tests and now we have good DNA, so the evidence isn't really a problem, but the court have said biology isn't enough.
It has to be some kind of social relationship with the kid. And a number of courts in a different context have said maternity gives you that social relationship. So, just like your last caller said, being pregnant creates a relationship that gives a mother vested interest in the child. So, for example, if a child is born to a U.S. citizen, and is trying to get citizenship, the child of the citizen mother gets citizenship automatically.
And the Supreme Court has said that's because labor and delivery and caring for the child gives you this, it's not just the biology, it's the relationship you've created. Whereas, a father has to go through many more steps and file sort of along the lines of a putative registry.
So the idea that, you know, pregnancy and caring for a child gives a mother, sort of, extra points in the authority over her child is right. And as… That's right.
MARTIN: And you were telling me that that's a relatively recent phenomenon in this country.
Professor SANGER: In the ‘70s when, sort of, equal rights for both sexes became part of our law, it applied across the board. It applied not only to education and employment but also to the family.
So at that point we move from the maternal presumption or the tender years presumption for mom's get kids to a really gender-neutral test called the best interest of children which means that courts were supposed to just decide on all the evidence which parent would be better for the child.
Now, they do more often decide for mothers because mothers still tend to raise children. But the formal test was neutral. But in the area of unwed parents--so the best interest test comes up when you're having a custody fight.
But in the area of unwed parents, fathers have fewer rights. And I certainly agree with Mary Beck that advertising, maybe putting in sex education--putting the information about putative fatherhood registries in sex education materials in high schools would both alert, you know, alert everybody that this can happen, these are high stakes. You know, there's a child's welfare at stake.
And you know, it would be a very good way of both publicizing it and maybe having a little more prudence when it came to sex. And then… sorry.
MARTIN: I think this is a good time to bring in our fourth guest, Mel Feit, is the director of the National Center for Men, which has filed suit in the United States District Court in Michigan on behalf of Matt Dubay. Mr. Dubay is seeking to decline fatherhood, I assume, to relinquish financial obligations in the event of an unintended pregnancy.
Mel Feit is joining us from his office in Long Island. Thank you for joining us.
Mr. MEL FEIT (Director, National Center for Men): Hi. Thanks for having me.
MARTIN: Did I have the facts right in that case, the Matt Dubay suit?
Mr. FEIT: You did. It's Matt Dubay.
Mr. FEIT: And Matt had a very brief sexual relationship with a woman where he says he told his partner before they had sex that he did not to be a father. She understood that, assured him that she had a medical condition whereby she could not get pregnant.
And after the child was conceived, both she and the State of Michigan, where the case is held, have now sought to force him into a financial responsibility for the child. And he's filed suit claiming that he should have had some choice after a sexual relationship because that's the choice that a woman would have had.
MARTIN: What's the status of this case now? Where is it in the system?
Mr. FEIT: The case has been filed in the district court in Michigan. We're confident we have a decent judge who is going to hear our arguments. But the other side has yet to reply. They get to answer our complaint and then presumably there will be arguments and hearings. And the judge will ultimately have to rule.
Let me just say one thing here, though, that I think is--you're talking about putative father registries. It seems to me that that is a cumbersome and overly complicated solution, that the simpler solution would simply be to require as a matter of law that a woman notify a man that she thinks may be a father of a child and to attach certain criminal penalties to her if she doesn't.
I think that would solve the problem easily. I don't know why we don't do that instead.
MARTIN: I have an interesting--I'll let Carol answer the question. But speaking of simple solutions, did Mr. Dubay use birth control in this relationship?
Mr. FEIT: He did. Let me explain this to you because I think this is really an interesting concept. The woman said, not only did she tell him that she was incapable of becoming pregnant but that she was also, for another condition, taking a birth control pill.
And I think he had absolutely every right to rely on what she said to him. The idea that…
MARTIN: So is it possible that she did not know…
Mr. FEIT: Yes, it's possible. We're not…
MARTIN: …that was capable of conceiving? I mean, do you know?
Mr. FEIT: It's possible that she defrauded him and maybe she didn't. We don't know.
But the point is that reproductive choice for women is thoroughly not dependent on whether she used contraception. She has an absolute, unconditional right to make a choice in the event of a contraceptive failure, whether she used contraception or not.
The fact that people would try to impose conditions on men, that is they have to use contraception in order to protect their reproductive rights or, as many people would say to Matt Dubay is that if you didn't want to be a father, you shouldn't have had sex.
You know, these are the sorts of arguments that have been discredited a generation ago when they were applied to women. And I think that a man must have some similar choice after a pregnancy, because that's exactly what women have.
MARTIN: What about that, Carol Sanger, that those are essentially the same, that I think what was defined as saying certain men want parity in the law?
SANGER: Well, it sounds like parity, and it sounds like equality. But it's ignoring the fact that the woman is the one who is carrying the baby. And it is true that only a woman has the right to decide to abort, if that's what he's talking about.
But the courts have been really clear about this with regard to support. And they've said the time to decide--and I do understand the case that Mr. Feit is talking about, that he's, you know, suggesting there is misrepresentation. There are also cases where there's just contraceptive failure. And we don't say that it hinges on that neither party intended to have the baby in that case.
But courts have said having a baby or putting yourself in the position where you might be a father is sort of a high-stake venture. And it may seem severe but you've got to think about it, you know, at the outset so that--and there's sort of, it's not uniformly the case that fathers don't have rights over procreation.
For example, there are a number of frozen embryo cases where a couple, you know, wanted to procreate it through artificial, through frozen embryos in vitro and they later broke up. And courts there have held that the father had, in a couple of disputed cases, where the father wanted to not to be a father and the mother wanted to use the embryos or donate them to another family.
The courts held that the father had, in that case, had an equal right because there wasn't, we weren't yet in the state of pregnancy yet. So it's not quite so bleak for fathers.
MARTIN: Mr. Feit, what about the question that one caller raised earlier which is that pregnancy is a much more demanding issue than the male's role in getting pregnant, that males get to--yes.
Mr. FEIT: I think we realize that it's a woman's body. I want her to have the ultimate choice and the ultimate power to decide when the new life is brought into the world.
I think that the point that you just raised trivializes the burden that's imposed on men to provide financial support for 20, 25 years. A third of a person's gross salary is taken from them.
You know, in fact, Roe verses Wade was an interesting--if you look at the text of the decision what you'll see is that the court articulated that the financial burden that could fall to a woman to raise a child that she did not plan to bring into the world, that that financial burden was potentially so great that it outweighed whatever legitimate state interest there might be in preventing an abortion.
Let me just be clear about the principle we're articulating here. Roe gave something to women which is so fundamental: that is the right to choice love and intimacy and to make that choice without giving up reproductive rights. And to know that in the event of a contraceptive failure, no one else will be able to make decisions for you which will affect the rest of your life.
And I think if men and women are going to have an equal partnership, which is the goal here, then they have to know after they love each other that the next day neither one will have disproportionate power over the other.
And what we're asking people to do, and I know this is novel, we're asking them to look at redefining the definition of fatherhood. Is it DNA that makes a father? I don't think so because sperm donors, you know, are not fathers. No one would seriously suggest that.
Is it sex that makes a father? Well, you know, the fact is that sex, you know, women now can have sex and separate that from forced appropriation. That's the whole essence of Roe.
MARTIN: Mr. Feit, you've raised some very good questions. And I'm going to ask you to answer them after the break. But we're going to take a short break just to say, you're listening to TALK OF THE NATION from NPR News.
And you were raising some interesting questions about what it means to be a father. And I think that that's a very rich topic that we should discuss.
But before we do that, I want to go to a caller. I want to bring another caller into the conversation. And I'd like go to Oklahoma City and to Jason. Jason, what's on your mind?
JASON (Caller): Yes. I just want to tell you that I've been married and I now have two kids. But me and my wife faced a dilemma when we first got married. We both practiced unsafe sex and we knew that there was a chance that we would conceive a child.
So when we did conceive a child, the dilemma came to be what do we do now? And what happened was I wanted to have the child and she didn't. And so we argued back and forth about it. And the point I tried to make to her before she went ahead and had the abortion anyway was that, you know, we both went into this knowing neither one of us are using any form of contraception.
So we know there's the chance that the baby could be conceived, that it was OK until she actually became pregnant. And that's where the problem arose was that then it wasn't OK.
MARTIN: So all the theories and the advance conversation didn't matter when it came down to the reality?
JASON: When it came down to the reality, even though I wanted to have the baby, at that time in Oklahoma it was still her choice. And there was absolutely nothing I could do about it.
MARTIN: What would you have liked to have done about it, Jason? Would you have liked to have raised the child, do you think?
JASON: I would have liked to have raised the child. I had made up--you know, we were both excited at first. But then I guess it sunk in on her in a different way. I was prepared at that time to be a father. I knew that we were going to have a baby. And that was how I wanted things to be.
And I was, I'm not necessarily morally opposed to abortion. I just think that it should be something that both the mother and the father have to weigh in on. I believe that if both people think, yes, that's what we should do, then it should be just fine.
But in cases like mine wherein she didn't want to be a mother, I was content to let her not be a mother and me be a father.
MARTIN: I see. Thank you, Jason, for calling us. It's a very difficult dilemma. Thank you so much.
Carol Sanger, what about Jason's point? And very briefly because we're running out of time. We're at the very last couple of seconds in the program. But…
Professor SANGER: Jason's point…
MARTIN: …is there a way to equalize these competing claims, which are really irreconcilable in a way?
Professor SANGER: I thought Jason made a very good point in that he and his girlfriend talked about it. I mean, not everything has to--and I think most couples do talk about what their procreative strategy's going to be or what they're going to do with an unwanted pregnancy.
So, you know, we tend always to turn to love. But I think it's worth thinking that often couples talk things through sensibly, you know, without a legal rule.
As for the legal rule that Mr. Feit suggested about having women contact every man that they think might be the father of the child, I think the presumption is better off in the other direction, not only because it's constitutionally structured that way but because of your caller, Jennifer, I think, who talked about what it means to have a child.
And as Jason just said, it sinks in differently for women. And I think that's quite the case.
MARTIN: And Mel Feit, before we took our break you were saying that, you know, what it means to be a father is changing. So I'd like to ask you as our last question, very briefly, what do you think it means to be a father?
Mr. FEIT: Well, I think it has to involve a choice. I think it needs to be a commitment. I think that sex and DNA, I mean, those may factor into it. But ultimately it's a decision that a person makes.
And once a person makes a decision to be a parent I think then there are irrevocable responsibilities that flow from that. But absent that choice, I think that a person is not a parent. And I think men must have some similar choice.
That's what my advocacy is all about. The point…
MARTIN: OK. I'm sorry, Mr. Feit. We don't have time. Mel Feit, the director of the National Center for Men. He joined us from his office in Long Island. Thank you.
And Carol Sanger, who teaches family law at Columbia Law School, she joined us from our New York bureau. Thank you for both for joining us.
Professor SANGER: Thanks.
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