Paul L. Caron

Thursday, November 18, 2010

Motro Presents Preglimony Today at Illinois

Motro Shari Motro (Richmond) presents Preglimony, 63 Stan. L. Rev. ___ (2011), at Illinois today as part of its Faculty Workshop Series. 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.

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Interesting position from several points.

1. Premise is that government action is needed to cure a societal problem - out-of-wedlock births.
2. Action seems to encourage out-of-wedlock births by providing a deduction.
3. Does the extent of the couple's contacts have any relevance, i.e., ships passing in the night vs. a long term commitment.
4. If the woman chooses to have an abortion, the man has NO right to object.
5. Does this disfavor married couples? Married couples have to make a financial decision about how the mother will work/not work.
6. Palimony already exists in many states.
7. It is unclear if this deduction will morph into an obligation.
8. Child support is the fathers obligation - no deduction to divorced couples. Is this argument only confined to non-child support isssues?
9. Why should a baby father be entitled to a deduction? Many other actions, whatever the basis of the impulse, are not deductible.
10. And since the IRS Code is a technical mess, what is so compelling about this particular issue that would support additional complexity.

Tha above concerns only took a few minutes. I am assisting a client with a FATCA (withholding) implementation problem. It would be nice to see a scholarly article on FATCA - the only ones I seen a written by practitioners. What is it about deductions for baby daddies that attracts a professor/scholar's attention over actual problems that a student or practitioner might face?

Posted by: Ed D | Nov 18, 2010 1:33:05 PM

I agree with Ed D. Point #4 is especially relevant. Unless fathers have veto power in abortion decisions, they should not have support obligations. Our current system encourages women to give birth to gain support.

And, of course, if child support becomes a deduction to the payor, it becomes gross income to the recipient. Is that the mother to whom the father owes no duty under law?

Posted by: MochaLite | Nov 19, 2010 10:34:57 AM

Having watched my wife twice give birth, I would be surprise if anyone would go through this simply as a strategic measure.

Posted by: mike livingston | Nov 19, 2010 12:18:41 PM