The Price of Pleasure

Shari Motro - University of Richmond School of Law

A woman who becomes pregnant with a man to whom she is not married is essentially on her own. If she chooses to terminate the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man may be required to contribute to prenatal and birthing medical costs as part of his child-support obligations, but other pregnancy-related costs—like lost wages—tend to fall squarely on the woman.
Why is this bad?

First, the current rule sets up the wrong incentives. Granted, good guys do their best to prevent pregnancy, and when their efforts fail, they do not leave their partner in the lurch, even when their legal duties are minimal or nil. But for some men, the bottom line matters.

Studies show, for example, that adolescent men who expect to pay child support if their partner becomes pregnant have fewer partners, have less frequent intercourse, and are more likely to use contraception. But in some relationships, men assume—sometimes reasonably—that a woman will terminate an unwanted pregnancy. How does the fact that abortion frees men not only of child support, but also of responsibility for the woman herself, influence what happens in the bedroom?

Decisions about sex, contraception, and abortion take place in the shadow of the law’s allocation of their attendant risks. It is only logical that one way to reduce unintended pregnancies might be to raise the stakes for men, to make sure that all pregnancies have concrete consequences for both parties involved.
Second, the current rule is unfair. When a woman who is not prepared to be a mother discovers she is pregnant, the weeks and months that follow can be extremely difficult—physically, emotionally, financially. As long as she did not lie about birth control, why should the law not require the man to mitigate her troubles beyond taking care of the child if one is born?

Some people think the answer comes down to choice. Sexual liberation comes with responsibility, the argument goes. A sexually active woman who does not want babies should use protection. If she fails to prevent pregnancy, she should take care of herself. Demanding that men support choices they are powerless to prevent amounts to women wanting to have their cake and eat it, too.

But this “choice” argument trivializes the fact that all of women’s reproductive choices are risky—a lot more risky than most people realize. The cheapest and healthiest contraceptive methods—such as condoms—are also less than reliable, whereas the most effective methods also jeopardize women’s health. Hormonal contraceptives, for example, cause strokes, heart attacks, blood clots, migraine headaches, cancer, diabetes, asthma, breast pains, vaginal dryness and infections, and loss of sexual desire. Abstinence, of course, is foolproof and safe, but only a small minority of Americans—religious and secular alike—remain celibate until marriage. And teens who take abstinence vows and then break them are less likely to practice safe sex. So however you slice it, there is an inherent imbalance in sex that women’s reproductive freedoms do not cancel out.

We already recognize that there is no contradiction between a woman’s right to choose and a man’s duty to support her when lovers are married. Precisely because no matter what she decides, it is her body that will bear the consequences, the rough justice we strike in marriage is that a wife gets the final say and is entitled to support, while her husband gets to not be pregnant.

I am not suggesting that having sex should throw people into the same legal category as those who marry, but the law should recognize that unmarried lovers who conceive fall somewhere in between spouses and complete strangers.

Leaving a woman to deal with an unwanted pregnancy alone does make sense in one very particular situation: when both parties explicitly agree that once they part there will be no strings attached. When a man and a woman either “hook up” or deliberately try to conceive with no expectation of an ongoing relationship, a rule that treats lovers as strangers is appropriate. But the one-night stand should not be the model for the rule governing all non-marital sex. Treating lovers as strangers is not inherently wrong; it is just the wrong default.

In life there are no guarantees. Men and women who do not want children have sex anyway, despite the wild roll-of-the dice it entails. This is the fundamental risk at the heart of making love. This is the true price of pleasure, a price no law can erase. But the law can—indeed it inevitably does—set the baseline. It is up to us to decide where.

Acknowledgments:

Shari Motro is an Associate Professor of Law at University of Richmond.

This Legal Workshop Editorial is based on the following article: Shari Motro, The Price of Pleasure, 104 NW. U. L. REV. 917 (2010).

Copyright © 2010 Northwestern University School of Law.


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