differences between having sex and fathering a child

In opposing the Cert Petition to the U.S. Supreme Court in Turner v. Rogers, the respondents stated as facts:

Petitioner Michael Turner fathered B.L.P., the daughter of respondent Rebecca L. Rogers (née Price), in 1995, when petitioner was 18 and Rogers was 16. The pair drifted apart soon after B.L.P.’s birth in 1996.[1]

These statements equate “fathered” to having sex of reproductive type, where retrospectively a particular chain of contingent events allegedly followed from that sex act. While sex and procreation must be linked according to authoritative doctrinal statements of Catholic Church leaders, most persons don’t believe that such doctrine should be binding on everyone under U.S. law. Most persons consider sexual intercourse to be private conduct that they have liberty to choose without state-imposed burdens, obstacles, or punishments. Nonetheless, differences between having sex and fathering a child are not recognized in important legal actions, including in legal proceedings that keep on any given day about 45,000 men like Michael Turner in jails and prisons for sex-payment arrears.[2]

Having sex is much more prevalent among teenagers than is fathering a child. In the U.S. today, the share of males ages 18 and 19 who have ever had oral, vaginal, or anal sex with a female are 70%, 66%, and 17%, respectively. The share of males ages 18 and 19 who have ever engaged in oral or anal sex with a male is 4%.[3] Only sex of reproductive type — heterosexual vaginal intercourse — is sex that, with a particular ensuing chain of contingent events, can lead to fathering a child.

Unlike females, males are subject to uncertainty about whether their sex act of reproductive type contributed sperm to a specific pregnancy. DNA testing can establish beyond a reasonable doubt whether a particular male contributed sperm to a specific pregnancy. However, public policies and procedures discourages males from acquiring highly certain knowledge about their biological relation to a particular pregnancy. Teen males are particularly unlikely to surmount obstacles, including lack of knowledge, shaming, and intimidation, that constrain males from acquiring this knowledge. In the U.S. as a whole, men falsely believe themselves to be the biological father for roughly 5% of children. Among females ages 15 to 17 who had sex in the past year, 43% had sex with more than one male.[4] The facts that a male had sex of reproductive type with a female and the female gave birth to a child approximately nine months later is not sufficient to establish a biological connection. Turner may not in fact be the biological father of B.L.P., even though he ignorantly acknowledged paternity in response to official misrepresentation of facts.

Many teenage males have sex of reproductive type without wanting to father a child and without actually fathering a child. Not only have 66% of males ages 18 and 19 had sex of reproductive type, 43% had such sex in the past three months, and 19% had such sex four or more times in the past four weeks.[6] In the U.S. today, a male who does not want to be a father can legally use contraceptives to lessen the probability that he will fertilize an embryo. Among the 29% of males ages 15-19 who had sex of reproductive type in the past three months, 93% had sex with some form of contraception.[7] The share of males who state that they have a biological child is 1.9% for males ages 15-19 and less than 4.7% for males ages 18 and 19.[8] Many teenage males have sex of reproductive type, in addition to sex of other types, many times. Few teenage males father a child.

After decades of bitter, extensive public disputes about abortion, everyone should understand that contraceptives alone do not eliminate the problem of unwanted pregnancies and unplanned parenthood. A male who fertilizes an embryo does not father a child when the relevant female chooses to have an abortion. Among 16-year-old females in the U.S. in 2007, abortions amounted to 43% of live births.[9] Price, as a 16-year-old female, chose not to have an abortion. If Price had chosen to have an abortion, South Carolina would not have imposed weekly sex-payment obligations on Turner. In that sense of legal fatherhood, Turner would not have fathered a child.

To most persons, fathering a child has no relation to being subject to weekly, state-imposed payments. Fathers wake their children, dress their children, feed their children, play with their children, comfort their children, put their children to sleep, and wake them up. Fathers change their childrens’ diapers, they wipe their running noses, and they teach their children and discipline their children. These important acts of love and care are much different from having the resources and the disposition to comply with weekly, state-imposed payments. They are also much different from having sex.

Michael Turner and Rebecca Price had sex of reproductive type. That act is not the same as fathering a child. In the U.S. today, having sex of reproductive type is the basis for men being incarcerated, without even the benefit of counsel. In a state that did not legally impose Catholic sexual morality on men, having sex of reproductive type would not be labeled fathering in a legal document before the Supreme Court.

Notes:

[1] Turner v. Rogers, Respondents’ Brief in Opposition to Petition for Writ of Certiorari, p. 6. Emphasis added.

[2] The figure of 45,000 men is based on an estimated 50,000 persons in jail or prison for child-support arrears, and assumes that the sex ratio of persons incarcerated for child-support arrears is the same as the sex ratio for child-support awards, which is eight women receiving a child-support award per man receiving one.

[3] Chandra et al. (2011) Table 6 (data from 2006-8).

[4] Calculated from data in Chandra et al. (2011) Table 1 (data from 2006-8).

[6] Abma, Martinez, and Copen (2010) Tables 4, 5 (data from 2006-8)

[7] Abma, Martinez, and Copen (2010) Tables 4, 15 (data from 2006-8).

[8] Martinez et al. (2006) Table 1 (data from 2002; no more recent figures available). The ceiling for males ages 18-19 is calculated from the figure for males ages 15-19 under the assumption that all the men that had a biological child had their first child at ages 18 or 19.

[9] Pazol (2011) Table 5.

References:

Abma, Joyce C., Martinez, Gladys, Copen, Casey E. Teenagers in the United States: Sexual activity, contraceptive use, and childbearing, National Survey of Family Growth 2006–2008. National Center for Health Statistics. Vital Health Stat 23(30). 2010.

Chandra, Anjani, Mosher, William D, Copen, Casey, and Sionean Catlainn. Sexual behavior, sexual attraction, and sexual identity in the United States: Data from the 2006–2008 National Survey of Family Growth. National health statistics reports; no 36. Hyattsville, MD: National Center for Health Statistics. 2011.

Martinez, Gladys M., Chandra, Anjani, Abma, Joyce C., Jones, Jo, and Mosher, William D. Fertility, contraception, and fatherhood: Data on men and women from Cycle 6 (2002) of the National Survey of Family Growth. National Center for Health Statistics. Vital Health Stat 23(26). 2006.

Pazol, Karen et. al. Abortion Surveillance — United States, 2007. Centers for Disease Control and Prevention (CDC), Morbidity and Mortality Weekly Report (MMWR), February 25, 2011 / 60(ss01);1-39.

Turner v. Rogers, U.S. Supreme Court, Docket 10-10, argued Mar. 23, 2011.

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