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Tuesday, June 29, 2010

Motro: Preglimony

Shari Motro (Richmond) has posted Preglimony on SSRN. Here is the abstract:

Unmarried lovers who conceive are strangers in the eyes of the law. If the woman terminates the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man’s obligation to support her is limited. The law reflects this lovers-as-strangers presumption by making a man’s obligation towards a woman with whom he conceives derivative of his paternity-related obligations; his duty is towards his child, not towards the woman in her own right. Thus, a pregnant woman’s lost wages and other personal costs are her private problem, and if there is no child at the end of the pregnancy, there is no one — from a legal perspective — that the man must support.

The law also endorses this lovers-as-strangers default in the way in which it treats men who do support their pregnant lovers. It does this through the tax code. Current tax law regards payments between unmarried lovers as gifts or as child support. This characterization not only misses the mark descriptively, but it also misses an opportunity to reward and encourage a behavior that is critically important in an age when sex and procreation outside of marriage are common.

This Article argues that the law should develop a new framework for addressing the unique relationship between unmarried lovers who conceive and that tax reform offers a practical and relatively modest first step for doing so. To this end, it proposes that Congress create a pregnancy support deduction to benefit taxpayers who already support pregnant women, thereby extending to them the same deduction we now give taxpayers who pay alimony.

http://taxprof.typepad.com/taxprof_blog/2010/06/motro-.html

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Comments

Come on - divorced couples have their child payments treated as...child support and not alimony. Marriage has zero to do with the current tax status. Also, I've read of at least one case where the guy was on the line for the 2 decades for support for a child that was the consequence of a 1 night stand and he had no visitation rights.

"Thus, a pregnant woman’s lost wages and other personal costs are her private problem, and if there is no child at the end of the pregnancy, there is no one — from a legal perspective — that the man must support. "

My gosh, I never realized this poor pregnant women was in fact a totally innocent bystander. She better well have not enjoyed the moment. Oh, those evil, seducing men! Causing lost wages! I'm surprised we have not yet insisted on a male reproductive organ tax as a preemptive measure.

I'll tell my husband to write Congress right away supporting this break through in women's rights via a tax deduction.

Posted by: Amy | Jun 29, 2010 8:18:46 AM

I think Prof. Motro's suggestion is that the law try to encourage responsible behavior on the part of men who have already decided (or had it decided for them) to make women pregnant. I don't think she is asserting that men are necessarily rapacious or women necessarily innocent. I do find the idea of a male reproductive organ tax intriguing, although I think it might fail on vertical equity grounds (so to speak).

Posted by: mike livingston | Jun 29, 2010 9:40:50 AM

"I think Prof. Motro's suggestion is that the law try to encourage responsible behavior on the part of men who have already decided (or had it decided for them) to make women pregnant"

LOL - Ah, you see, even in trying to soften my language it's impossible to avoid the obvious: except in the case of rape, it takes 2 consenting people to make babies. :) Women have been known to get pregnant on purpose and where does that leave our tax idea? In my mind, the idea completely requires sainthood on the part of 1 gender.

I'm not ignoring that women do get the short end of the stick babywise. I just don't see how creating a potentially unfair liability on the part of the gentlemen or society as a whole changes anything.

It's just a totally hilarious to me -- I do however appreciate the nomination of sainthood thanks to my gender and the endorsement of the reproductive organ tax. I'm thinking we can have a whole set of rules just like the current income tax - no taxes on those over 65 unless taking Viagra, etc, an extra "Tiger Woods" sin tax, etc, etc. ;)

Posted by: Amy | Jun 29, 2010 2:44:08 PM

Amy,

I don't see how giving the gentleman a tax deduction for his support payments creates a liability for him.

I suspect that 2 consenting people having sex in these situations do not intend to make a baby. I do agree with the concept that both parties should be willing to accept the consequences of having sex.

Posted by: Aah no | Jun 30, 2010 8:04:45 AM

Aah no -

"I don't see how giving the gentleman a tax deduction for his support payments creates a liability for him."

That is true. But it does create a liability for the rest of us in the form of less taxes paid unless we make the income received taxable. And we're still all on the short end of the stick taxes wise because money is mostly flowing from a higher income individuals to a lower ones.

And one of the main points of the paper is that the tax code unfairly picks on never married people in this situation. It does not. It treats all child support payments as the same nondeductible creature.

"I suspect that 2 consenting people having sex in these situations do not intend to make a baby."

Whenever I play with fire, I never intend to get burnt. However, I'm not overly shocked (or completely unprepared) when it happens. Everyone had choices pre-baby. It's plain old risk management on the part of both parties.

At any rate, this has been lots of fun stuff to think about - cool thread.

Posted by: Amy | Jun 30, 2010 11:23:53 AM