Why the U.S. Court of Appeals for the Sixth Circuit Rejected a Man's Claim for Relief from Involuntary Fatherhood

By JOANNA GROSSMAN

Tuesday, Nov. 27, 2007

Should a man be able to avoid the obligations of parenthood when he became a father involuntarily?

No, according to the recent ruling from the U.S. Court of Appeals for the Sixth Circuit in Dubay v. Wells.

The "Involuntary Father": A Biological Father's Claim that the Mother of His Child Lied Both About Being Infertile and Using Contraception Just in Case

This case arose when Matt Dubay engaged in sexual relations with his girlfriend, and she became pregnant just three months into their relationship. Dubay only learned of the pregnancy after they had already broken up.

After their daughter was born, a Saginaw County, Michigan prosecutor brought a paternity action against Dubay. The Michigan Paternity Act establishes the duty of unmarried parents to support their children, and empowers courts to enter paternity and child support orders once paternity has been adjudicated or admitted. Once Dubay's paternity was established, he was ordered (as any parent would be) to pay $500 per month in child support. (Under the Michigan Act, all "legal" parents owe their children a duty of support.)

Represented by the National Center for Men, an advocacy group with the stated mission to "educat[e] the public about how men are hurt by sex discrimination," Dubay sued the prosecutor. In his suit, he alleged that the application of the Michigan Paternity Act to the facts of his case violated his rights against sex discrimination, as guaranteed by the Michigan and U.S. Constitutions.

Dubay claimed that he should not be deemed the baby's father because he had relied on what he alleged were his girlfriend's false assurances that she was unable to get pregnant, due to a medical condition and that she was using birth control, just in case. He also claims that he told her explicitly, before they began a sexual relationship, that he was not interested in becoming a father.

Legally speaking, the crux of his claim is that he was deprived of the opportunity to avoid parenthood both by his girlfriend's alleged misrepresentations and by the legal fact that men have no say over whether a pregnancy is carried to term. (I discussed his initial allegations in greater detail in a previous column.)

The prosecutor sought dismissal of the complaint, and the Michigan Attorney General intervened, asking for the same relief. The Attorney General also sought attorneys' fees - on the theory that Dubay's complaint was frivolous.

The trial court ultimately dismissed Dubay's complaint with prejudice, ruling that even if everything he alleged factually was deemed true for purposes of argument, his allegations would still fail to state a cognizable cause of action.

In short, the court rejected the claim that the U.S. Constitution's Equal Protection Clause protects men from involuntary parenthood. The court also awarded attorneys' fees to the Attorney General, because it found Dubay's claims to be groundless. Dubay next appealed the ruling to the relevant U.S. Court of Appeals, which in this case was the Sixth Circuit.

Constitutional Protection Against Involuntary Fatherhood? The Argument Dubay Made

On appeal, the court considered one basic question: Does the U.S. Constitution's Equal Protection Clause prevent a state from making men support children whom they did not desire to produce? (Because the lower court dismissed Dubay's complaint on a motion to dismiss, the appellate court had to assume, for purposes of the appeal, that the facts he alleged were true. Thus, the court had to treat as fact his allegation that the mother misrepresented her fertility and use of birth control, though no factfinder has yet deemed this accusation either true or false.)

Dubay claims that he is treated unequally, as compared with women (mothers). More specifically, he claims that women are afforded the opportunity to avoid unwanted parenthood, by having an abortion, while men have no such right. Because of the constitutional protection, established by Roe v. Wade, for a woman's right to choose an abortion, men (whether husbands or just fathers) do not have the right to insist on an abortion, nor the right to veto a woman's decision to have one. Women thus have a right to effectively disclaim parenthood after conception, using abortion to transform themselves from parents to non-parents, Dubay argues, while men do not. He argues, moreover, that the difference constitutes sex discrimination.

(Dubay also claimed that women have a greater opportunity to disclaim parenthood after birth by surrendering a child under a safe haven law or giving a child up for adoption. However, the court treated these arguments as waived because he failed to cite any legal authority for them.)

The Problem with Dubay's Claim, and Why the Court Was Right to Reject It

The Sixth Circuit was right to hold that Dubay's claim lacks merit. Here's why:

The Equal Protection Clause does not prohibit all differentiations on the basis of sex. It guarantees only formal equality - the right of likes to be treated alike.

To make a sex equality claim, therefore, a male plaintiff must first show that he is "similarly situated" to females for purposes of the particular state action involved. Only if such a showing is made, will the court apply heightened scrutiny to the state's law or action - and without heightened scrutiny, most laws are upheld. If a plaintiff demonstrates a sex-based classification - a differentiation between men and women who are similarly situated - then the state must offer an "exceedingly persuasive" justification for the different treatment. For example, if a child support law were to impose additional child support obligations on male noncustodial parents, but not on female noncustodial parents -- despite identical incomes and surrounding circumstances -- an Equal Protection Clause challenge might be tenable

The Sixth Court concluded, however, that the Michigan Paternity Act did not contain any illegal sex-based classification. Dubay's argument, the court concluded, relied on a "false analogy" - comparing the pregnant woman's right to abort with the unwilling father's right to avoid paying support for a child after its birth.

Prior to a child's birth, men and women are not similarly situated. A woman's right to abortion derives from her right to bodily integrity and privacy; there is no comparable right for men. But once a child is born, everything changes. The U.S. Supreme Court has held that states have a legitimate interest in ensuring that child support claims are satisfied. And Michigan law treats mothers and fathers of non-marital children the same: Both have an obligation of support.

It is true that, in many situations, women have greater practical control over the decision whether to surrender a child for adoption (or to abandon it immediately after birth at a safe haven like a hospital or police station). However, these laws are justified by the state's interest in protecting children.

The law governing parental obligations to children thus does not include a sex-based classification at all - and thus need not be reviewed under a heightened scrutiny standard.

Why an Alternative Equal Protection Clause Argument Failed Here, Too

Dubay also argued a different theory of equal protection - that the paternity law is invalid, even if it does not treat similarly-situated men and women differently, because it infringes upon a fundamental right. (He could also have made a similar claim under the Due Process Clause of the Fourteenth Amendment, but he expressly denied doing so.)

Regardless of whether this claim is based on the Equal Protection or Due Process Clause, however, the stumbling block is the same: Only fundamental rights warrant protection. Although the Supreme Court has found that a number of rights relating to contraception, reproduction, and parenting are fundamental, the right to disclaim fatherhood (and avoid child support) is not one of them.

The Sixth Circuit, indeed, held this in a prior case, N.E. v. Hedges, that the right to privacy "does not encompass a right to decide not to become a parent after conception or birth." And the Supreme Court has held that a "putative father" - that is, a man who is alleged to be a father - "has no legitimate right and certainly no liberty interest in avoiding financial obligations to his natural child that are validly imposed by state law."

Applying these precedents, the Sixth Circuit in Dubay explicitly rejected the plaintiff's argument that men should be able to disclaim fatherhood after the fact, in order to balance out women's right to disclaim it beforehand through abortion. "[I]t is not a fundamental right of any parent, male or female, to sever his or her financial responsibilities to the child after the child is born," the court wrote.

The appellate court not only ruled in favor of the prosecution, but also upheld the order directing Dubay to pay the government's attorneys' fees for the proceeding at the trial court level. It did, however, refuse to award attorneys' fees for the appeal, concluding that the claim on appeal did not rise to the level of "frivolous," as required by the rules.

Why The Court Declined to Create a So-Called "Roe v. Wade for Men"

This ruling is, in all likelihood, the end of the road for the case styled by the National Center for Men as the "Roe v. Wade for Men." There's not a chance the U.S. Supreme Court would agree to hear this case, for two reasons: First, the Sixth Circuit's approach is similar to that taken by other courts, indicating consensus, not division, among the lower courts. Second, the issue is not likely to be deemed to have the level of pressing national importance required to warrant a review by the High Court.

In the end, this ruling affirms an important principle: The needs of children should not be sacrificed to compensate adults for the wrongs and disappointments they suffer in their relationships. Whether Dubay wants to be a father or not, he is one.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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