Preglimony.

AuthorMotro, Shari

INTRODUCTION I. THE LOVERS-AS-STRANGERS PARADIGM A. The Current Law of Conception B. The Problem with the Status Quo II. POSSIBLE SOLUTIONS A. Marriage B. Collective Responsibility Towards Pregnant Women C. Mandatory Preglimony and the Relational Default III. THE PREGNANCY-SUPPORT DEDUCTION A. The Current Income Tax Treatment of Pregnancy-Related Transfers 1. A primer on the taxation of personal transfers 2. The current taxation of preglimony a. Child support characterization b. Gift characterization B. The Pregnancy-Support Deduction 1. Theoretical justification 2. Utilitarian justifications C. How It Would Work CONCLUSION INTRODUCTION

We have alimony. We have palimony. Why don't we have preglimony? Under current law, a man has no legal obligation towards a woman with whom he conceives until paternity is established. This almost always happens after and only if a pregnancy is taken to full term. If the pregnancy ends in abortion, the woman is entirely on her own. If she gives birth, the man may be required to reimburse her for a portion of prenatal and birthing medical expenses, but other pregnancy-related costs--like her lost wages--are seen as her personal problem. In many cases, women never invoke even these limited retroactive entitlements for fear of alienating men already reluctant to meet their child support obligations.

Why is this a problem? First, unless both parties understood their encounter as a no-strings-attached proposition, the current rule is unfair. It puts a disproportionate share of the costs of both parties' actions on the woman alone. Second, it gives men who assume their partner will terminate an unwanted pregnancy no economic incentive to be vigilant about birth control. Of course, conscientious men have plenty of other reasons to prevent an unwanted pregnancy, but the fact that abortion is free for men leaves some unconcerned about pregnancy prevention, contributing to the perception that birth control is a woman's responsibility. (1) Finally, the current paradigm disregards the relational implications of conception. Some pregnancies result from what is clearly a no-strings-attached encounter, but often the sex (2) that produces a pregnancy takes place in the context of a relationship in which certain baseline responsibilities are assumed. Data on men's involvement in pregnancy and abortion is scant, (3) but it does suggest that many abortions and most births take place in the context of relationships that involve some expectation of care and support. (4)

Current scholarship on the legal relationship between unmarried lovers who conceive is virtually nonexistent, (5) judicial commentary on the scope of unwed fathers' pregnancy-related obligations is sparse, and many state courts have been silent on the issue. Uncertainty abounds, leaving unmarried lovers who conceive to muddle through on their own. In the past, when marriage was the primary site for procreation, the problem was relatively modest. Today, with over one-third of births (6) and two-thirds of abortions (7) occurring outside of marriage, the status quo is untenable.

In a prior work--The Price of Pleasure (8)--I argued that the lovers-as-strangers paradigm that now governs out-of-wedlock pregnancy should be replaced with a relational default. This default would require unmarried lovers who conceive to share both the direct and indirect financial burdens of the pregnancy regardless of its outcome. It would not apply to pregnancies resulting from nonconsensual sex (including sex involving fraud or deceit) for which we have (albeit imperfect) criminal and tort frameworks, and couples who don't want to be governed by the relational paradigm would be free to opt out of it. No-strings-attached sex isn't inherently wrong; it's just the wrong legal default.

I continue to maintain that comprehensive reform along these lines represents an important long-term ideal, but I also recognize that imposing a mandatory pregnancy-support obligation on unmarried men presents both administrative and philosophical challenges that require further study. In this Article, therefore, I develop a simpler, more immediately practical framework through which we may begin to recognize the unique relationship between unmarried lovers who conceive: tax reform.

The law is silent on the proper tax treatment of pregnancy-related payments, but current principles suggest that they may be either gifts or child support for tax purposes. Neither of these characterizations matches the realities of the relationship between lovers who conceive, and neither triggers tax consequences because gifts and child support are nondeductible to the payor and excludible by the recipient. As a result, the current rule misses an opportunity to reward and encourage men who are already inclined to support their pregnant lovers. In addition, it implicitly endorses a view of lovers as legal strangers.

This Article proposes that Congress create a pregnancy-support deduction--a provision that would extend to taxpayers who support pregnant women the same benefits we now give taxpayers who pay alimony. Part I lays out the problem--when unmarried sexual partners conceive they often view the pregnancy as a shared responsibility, but the law treats them as strangers. As a resuit, the current legal approach to reproduction is unjust, it is expressly harmful, and it sets up the wrong incentives. Part II explores possibilities for reform--bolstering marriage as the gateway to sex, increasing public support for pregnant women, and giving women a legally enforceable entitlement to support from the men with whom they conceive. Ultimately, I conclude that these possibilities are unworkable, utopian, or unlikely to materialize in the near term. Part III therefore turns to the pregnancy-support deduction--a relatively simple amendment to the Internal Revenue Code with immediate effects. The deduction would incentivize greater pregnancy-related support and treat unmarried lovers more equitably by implicitly recognizing that they are neither spouses nor complete strangers, but rather something in between.

  1. THE LOVERS-AS-STRANGERS PARADIGM

    1. The Current Law of Conception

      Our legal tradition has not been kind to unmarried love. Under the common law, men had no legal obligations towards the women with whom they conceived out of wedlock. (9) Today, the same rule holds in cases in which the woman terminates an unintended pregnancy--the man owes her nothing. When the woman takes the pregnancy to term, most states require unwed fathers to participate in the "reasonable expenses" of pregnancy, (10) which are generally limited to expenses that directly benefit the subsequently born child. This is because most states frame pregnancy-related obligations as an element of a man's child support obligations (11) or as part of a parentage order, (12) not as a duty towards the woman in her own right. The rationale behind this approach stems from the now widely accepted imperative that children of unmarried parents should not be relegated to the legal no-man's-land of "illegitimacy." (13) All fifty states now require both parents to support their offspring regardless of marital status. (14) Since a child's prebirth health cannot be disentangled from the health of the expectant mother, child support begins in utero. (15) Accordingly, most cases dealing with the scope of these pregnancy-related obligations focus on prenatal and birthing medical expenses, (16) as does the Uniform Parentage Act, which provides that:

      Copies of bills for genetic testing and for prenatal and postnatal health care for the mother and child which are furnished to the adverse party [to a paternity proceeding] not less than 10 days before the date of a hearing are admissible to establish: ... that the charges were reasonable, necessary, and customary. (17) Case law generally disregards other costs like lost wages, (18) childbirth classes, (19) and maternity clothes. (20)

    2. The Problem with the Status Quo

      This legal status quo is troubling for three main reasons. First, it is unfair. When a woman who isn't prepared to be a mother discovers she's pregnant, the weeks and months that follow can be extremely difficult. If she chooses to terminate the pregnancy, the physical and emotional risks of the procedure alone are significant. (21) When an abortion causes an infection, the long-term effects may be serious, even fatal. (22) For many women, an abortion is also logistically and financially hard to obtain. (23)

      As for a pregnancy taken to term, the consequences go far beyond the monetary charges of visits to the obstetrician/gynecologist and the delivery room. Pregnancy may of course be an inspiring and joyful experience, but even smooth pregnancies come with routine difficulties that are more extensive than is generally recognized--including prolonged bouts of nausea and vomiting, back pain, and fatigue. (24) Pregnancy also limits a woman's freedom of movement and it transforms her public identity. Reva Siegel captures some of the effects of pregnancy on a woman's personhood:

      A woman may find that pregnancy comes to embody her social identity to others, who may treat her with love and respect or, alternatively, abuse her as a burden, scorn her as unwed, or judge her as unfit for employment.... Pregnancy, and the period of lactation that follows it, are not merely burdensome, disruptive, or even consuming forms of work. They amplify the gendered judgments and constraints to which women are already subject, exposing them to material and dignitary injuries having nothing to do with the physiology of reproduction, and entangling them in relationships that profoundly define their identity and life prospects. (25) After childbirth, a woman may require weeks, sometimes months to recover, especially if she is among the one-third of mothers who now give birth through a cesarean--which is major abdominal surgery. (26) Possible complications...

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