the paternity information economy

Biological paternity is highly significant biologically.  Because Darwinian evolution depends on biological paternity, evolved patterns of behavior, such as parental care, are likely to be sensitive to biological paternity.  Moreover, biological paternity is increasingly relevant to health care screening and treatment.  Most men in most cultures express concern for biological paternity.

Biological paternity also has considerable socially constructed significance.  In many jurisdictions, biological paternity can entail large, government-determined parental payments (“child support payments”) legally enforced with the threat of imprisonment.[1]  Biological paternity doesn’t legally matter for the paternity of a cuckolded husband or a duped lover once paternity has already been legally attributed to him.  Biological paternity, irrespective of the circumstances, determines government-determined parental payments only when those payments aren’t already established.  Legal determination of biological paternity isn’t direct toward providing justice based on truth.  It’s directed toward extracting money from men.

In seeking government-determined parental payments under U.S. case law, the mere fact of biological paternity trumps misrepresentation and fraud in sexual relations.  Here are uncontested facts of Dubay v. Wells (2007):

In the fall of 2004, Dubay and Wells became involved in a romantic relationship. At that time, Dubay informed Wells that he had no interest in becoming a father. In response, Wells told Dubay that she was infertile and that, as an extra layer of protection, she was using contraception. Dubay, in reliance on these assurances, participated in a consensual sexual relationship with Wells.

The parties’ relationship later deteriorated.  Shortly thereafter, and much to Dubay’s surprise, Wells informed Dubay that she was pregnant, allegedly with Dubay’s child.  Wells chose to carry the child to term and the child, EGW, was born on an unspecified date in 2005.  During the pregnancy and birth of the child, Dubay was consistently clear about his desire not to be a father.[2]

Michigan imposed government-determined parental payments on Dubay.  Dubay argued that government-determined parental payments discriminate against men, who lack effective opportunities to receive the protection of child abandonment and child adoption laws when confronted with unplanned parenthood.  All the way up to the U.S. Court of Appeals, courts rejected Dubay’s claim.  They consistently ruled that sexually discriminatory treatment with respect to government-imposed parental payments is not unequal under law.  Under such a legal regime, sexual intercourse that generates a pregnancy that a woman chooses not to abort has large financial implications for men.

pile of ropes

The great importance of biological paternity biologically and under child-support law has not produced an efficient paternity information economy.  Available evidence indicates that, in high-income countries, men falsely regard roughly 5% of children to be their own biological children.  While hospitals take great care to ensure newborn babies are not switched among mothers, hospitals do not routinely check paternity to ensure that men have accurate knowledge about their biological paternity.  DNA testing for determining biological paternity is cheap and has a very low error rate.  But hospitals do not regularly offer this service in conjunction with child delivery and newborn care services.

Moreover, government-determined parental payments are regularly imposed without DNA testing for biological paternity.  Government-determined parental payments are large, long-term, monthly payments.  Changing the level of payment in response to changes in a man’s financial situation, such as loss of job, requires a time-consuming, difficult legal procedure.  Nonetheless, paternity testing is not required before imposing government-determined parental payments.  In most jurisdictions, a married man is liable for government-determined parental payments for his wife’s child even if the child is a product of his wife’s extra-marital sexual activity.[3]  In many jurisdictions in the U.S., more than half of government-determined parental payments are imposed through default judgments.[4]  DNA testing provides highly accurate determinations of biological paternity.  Default judgments, in contrast, provide a highly faulty indication of paternity.

Making paternity information universally accessible to the relevant men could be done easily as a matter of law.  First, hospitals could be required to offer, as part of child delivery services, a paternity test to any man signing a birth certificate.  Men not wanting true knowledge about their biological relation to the child before signing a birth certificate might be required to pursue a legal procedure similar to that currently required for lowering the level of government-determined parental payments in circumstances of job loss.  Moreover, a paternity test could be required before imposing any government-determined parental payment.  Such laws would contribute greatly to making paternity information accurate and universally accessible.

Legal developments, in contrast, have tended to suppress possibilities for men to acquire true knowledge of their paternity. Consider, for example, the U.K.’s Human Tissues Act of 2004.  Suppose that an unwed woman has parental custody of a child too young to consent legally to a DNA test.  Suppose a man with a reasonable basis for believing that he might be the biological father of the child currently does not have parental responsibility for the child.  The Human Tissues Act criminalizes the man taking a strand of the child’s hair, without the mother’s consent, for the purpose of testing his paternity of the child.  Under the Act, punishment for knowledge-seeking of this type is a fine or imprisonment of up to three years, or both.  That’s harsh punishment for a man seeking highly important knowledge.

Biological paternity is socially valued only as a means for making a man pay child support when a child-support payer cannot otherwise be established.  That peculiar paternity information economy seems to reflect fundamental sex differences in communications.

deep-sea diver in old diving suit

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[1] “Government-determined parental payments” more clearly describes the relevant payments than does “child support payments.”  The level of the payments depends primarily on the adults’ incomes, not on the child’s needs.  The payments are made to the parent (usually the mother), not the child.  The recipient of the payment has no legal obligation to spend the payment on the child.  No accounting for the spending of the payment is required under law.

The most important form of child support is undoubtedly freely given love for a child and personal attention to the child.  Such child support differs greatly from government-determined parental payments.  Sanctions for not paying government-determined parental payments include imprisonment, garnishing wages, revoking a driver’s license, revoking a business licenses, and refusing to issue a passport. Imprisoning a parent for not paying government-determined parental payments makes it much more difficult for that parent to provide child support in the form of love and person attention to the child.

[2] Dubay v. Wells, et. al., No. 06-2107, U.S. Court of Appeals, 6’th District, decided Nov. 6, 2007.  This was an appeal of Dubay v. Wells, Case Number 06-11016-BC, U.S. District Court, East District of Michigan, Northern Division, decided July 17, 2006.  The latter decision declared Dubay’s claim “frivolous, unreasonable, and without foundation.”  The decision also declared, “If chivalry is not dead, its viability is gravely imperiled by the plaintiff in this case.” Further underscoring its frivolous judgment, the Court required Dubay to pay the state’s attorney fees.  Because the case apparently was serious enough to attract participation from the Attorney General of Michigan, the state’s attorney fees were probably considerable.

[3] The article that unfairly presented Carnell Smith’s situation also inaccurately described relevant statistics.

[4] In California in March, 2000, 71% of child support obligors with arrears had at least one child support order established by default judgment.  Among child support orders issued in California in 1999, 68% were entered by default judgment.  See Elaine Sorensen, Heather Koball, Kate Pomper, and Chava Zibman, “Examining Child Support Arrears in California: The Collectibility Study,” March 2003. Urban Institute, Prepared for the California Dept. of Child Support Services, p. Report 5-10. Less detailed data show considerable variations in “default order rates,” including rates above 50% in the states of Washington and Arizona.  See Paul Legler, “Low-Income Fathers and Child Support: Starting Off on the Right Track,” Final Report, Jan. 30, 2003, Policy Studies Inc., p. 15.

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