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Monday, March 28, 2011

Motro: Preglimony

Shari Motro (Richmond) has published Preglimony, 63 Stan. L. Rev. 647 (2011). 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 likely regards payments between unmarried lovers as gifts or as child support. This characterization not only misses the mark descriptively, 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.

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Comments

Does this mean unborn children will need SSNs?

Posted by: S | Mar 28, 2011 12:41:37 PM

Call me crazy, but doesn't the law already provide such a solution? It is called "marriage."

Isn't this a case of "if you don't want to do the time then don't commit the crime?" If you are too lazy to go to city hall and get a marriage license, why should the tax code (or any other law) do the work for you?

And from a non-legal perspective, doesn't science already provide such a solution? It is called "birth control." (and it is my understanding that anyone who objects to birth control on moral or religious grounds should not be engaging in premarital sex on those same convictions.)

Again: don't do the crime if you don't want to do the crime; and don't make me subsidize the fact that you are too lazy to go to the pharmacy.

Abortions are relatively hard to get in the U.S. Marriages and birth control, however, are not.

Posted by: tax guy | Mar 28, 2011 3:10:32 PM

Glib response, the remark about "marriage". Spoken no doubt by one of the fortunate few who have been able to hold a marriage together. My wife and I unfortunately failed at that effort after thirty years, and find ourselves in the unfortunate 50% or so of persons who have had a failed marriage, in our case for reasons directly related to a faulty understanding we both had concerning marriage and how to make it work based on the disastrously bad marriages of our parents. Nevertheless, I personally remain married but permanently separated because one of us would lose employer provided health insurance if we divorced, and both of us are in our late 50s and have what would be considered "pre-existing conditions". So, I live with another, and remain married. In short, I am forced into an irregular arrangement in order to preserve the health of my de facto ex and myself. It is an act of decency to remain married under these circumstances. Ideal solution? Heck no! But it is as it is. Savings grace? At least we're all too old to get pregnant again.

But the same sort of health insurance trap can befall a younger couple. Since we, the American people,are bent on dismantling ObamaCare, this sort of insanity will persist and even quite possibly increase. OK, so I will call you crazy: you're crazy.

Posted by: Jeffrey | Mar 29, 2011 2:11:31 AM

Four brief points.

1. I believe this is the thrid time you've referenced this article. Can we therefore assume you really like it?

2. Jeffrey's point seems totally unrelated to the original post - it appears related to health care and his nondivorce.

3. Having changed jobs, had health care, COBRA, and been blissfully self-employed for the last 8 years, I know a little about health insurance in the tri-state area. If you were covered by a group plan (corporate, COBRA, or private purchase), you can move to a new plan within 60 days and cannot be denied coverage for pre-existing conditions.

4. With the current complexity of the ta code, why should we encourage out-of-wedlock births by providing them with tax treatment that is more favorable than currently allowed? Since child support is not deductible to married partners, I presume the author is arguing for an alimony type deduction for supporting the female who conceived. Palimony exists. Can I presume the author is proposing to allow deductions (or force payments) between thos who have had "brief encounters?"

Posted by: Ed D | Mar 29, 2011 8:11:00 AM

"I am forced into an irregular arrangement"

Ummm, no, you aren't forced to do anything of the sort -- not by what you wrote anyway. You are choosing to do so. You are shifting your medical costs to those of us who choose not to do what you are doing. If that isn't insurance fraud, it should be.

Posted by: yahoo | Mar 29, 2011 8:29:54 AM