Fighting Injustice with Injustice

-- By SamHershey - 21 Feb 2010

Introduction

In class, Eben mentioned an innocent boy who is at risk of deportation because of an accidental injury to his girlfriend and the inexorable "must arrest" laws that he now faces. The story prompted some class members to argue that the sacrifice of innocent men is a worthy exchange for the safety of abused women. This debate reminded me of a fascinating, heartbreaking article titled "Who Knew I Was Not the Father?" (http://www.nytimes.com/2009/11/22/magazine/22Paternity-t.html?pagewanted=1&_r=2) that appeared in the New York Times Magazine last November. The article discusses men who, when they realize that they have been duped into raising children who are not their own, find themselves bound by stringent paternity laws to continue paying child support. While I would never wish to downplay the horrors of domestic violence and deadbeat fathers, my fear in both situations is that the law, in attempting to combat certain social ills, has created new injustices. I reject as false the proposition that the law can only work in obscene binaries: that we must choose whether to sacrifice the rights of this group or of that group. The law must work in more nuanced ways to achieve justice.

The Problem: Solving One Injustice by Creating Another

Abandoned Mothers

The abandonment of mothers and children is a grave and rampant problem. According to the US Census Bureau, over 20% of custodial mothers, i.e. single mothers with minor children, do not receive any child support from their children's father. While mothers who know the identity of their children's father have potential recourse through the courts, mothers who remain ignorant of the identity of their children's father face a hopeless situation. For that reason, efforts to identify and legally bind absentee fathers have proved essential to achieving justice for these women and their children.

Deceived "Fathers"

Still, through the enforcement of stringent paternity laws, a new class of victims has been created. As the New York Times article recounts, men across the country have discovered through DNA testing that the child they have been raising as their own is not theirs at all. These men are doubly deceived--not only in remaining faithful to an adulterous wife, but also in supporting her lover's child. Different states adopt different approaches to this problem, but as the New York Times article notes, the laws of the vast majority of states offer no sympathy to the deceived man: Not only must he continue to pay child support, but also the true father, if he is known or discovered, bears no financial obligation. These states operate under the ancient notion that birth in marriage establishes paternity, and adultery and deception change nothing. Some might say that these men are the necessary victims in a system that, to combat deadbeat fathers, must privilege the rights of mothers above all else. I find that argument callously simplistic.

Rights to Weigh

The Child

The Deceived "Father"

The Mother and the True Father

Solutions

Subsection A

Subsection B

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