Without knowing more about the nature of their relationship, or a woman's reasons for having an affair, it is difficult to assert with confidence that the unfaithful woman has wronged the deceived man. Likewise, a mother may have had good reasons for not telling her partner about the paternity of the children,
making it difficult to argue that on balance she has done the wrong thing in not being truthful even if the truth was owed. But let us assume for the sake of argument that the man in question is a model partner, even as far as the woman was concerned, and that there are no good reasons for deceiving him. Should not a man who satisfies these assumptions be compensated by his partner for the wrong he has suffered at her hands?
We might answer “Yes” as a way of agreeing that things have not gone well for the man, and that he deserves a change for the better in his fortunes. Thus we might hope that the woman will get her comeuppance or that the man will find true love and happiness elsewhere which will more than compensate him for his past experiences. But this kind of compensation for an injustice needing to be redressed may not translate into the need for a legal remedy. Generally speaking, personal relationships between adults are not seen as contracts with financial penalties for breaches of any of the conditions of that contract,
and if they were, the deceived party would be able to claim compensation for infidelity regardless of whether any children were conceived as a result. This would commodify trust and fidelity, which are supposed to be freely given, and not given in order to avoid legal repercussions and financial costs. Such considerations tell against financial claims based on, or motivated by, a woman's infidelities alone. Moreover, infidelity must be kept out of claims related to misattributed paternity, for, as Kaebnick points out, “…sexual betrayal is not… a feature of the relationship between a man and his child. It is a feature of his relationship with his wife”.12
What about a claim for financial reimbursement for bringing up the non‐genetically related children? In many countries, absent parents have a legal obligation to contribute to their children's upkeep.
Paternity testing is now relied upon to settle disputed claims related to child support. This suggests that in some societies, or at least in this part of their legal systems, genetic relatedness is either a marker of responsibility or it generates such responsibilities.
Against this background, a man who has discovered misattributed paternity could argue plausibly that the responsibilities of the genetically related man have been illicitly passed to him. Moreover, while there are circumstances where financial responsibilities are not tied to genetic relatedness (adoption and gamete donation, for instance), what appears to make the difference is the element of choice – the responsibilities are transferred from one party to another by mutual agreement. Men who discover misattributed paternity have not been given a similar choice, and this, coupled with the arrangements for absent parents, seems to strengthen the claim for reimbursement.
The view that genetic relatedness forms the basis for financial responsibility has been encouraged by the political policy in many countries of pursuing absent fathers through the legal system for maintenance payments for their children. This policy, however, need not be accepted without question. Sally Sheldon,15
for instance, has challenged it at least two ways. First, she argues that men's control over whether or not genetically related children come into being is limited to the extent that women have the final say in decisions about abortion. Second, it is not obvious that the state should be reluctant to support children with absent fathers (or mothers).
A further challenge to the policy is that it puts too much weight on genetic relatedness as a sufficient determinant of paternal rights and responsibilities. Much has already been written about the role of genetic relatedness in how “father” (and indeed “mother”) is to be defined, and whether intention, foreseeability, causation, and the like have a part to play.
I do not intend to rehearse the arguments here. Suffice it to say that the term “father” has come to have different meanings, and arguably different values, in different contexts. For the purpose this paper only two of these different meanings are significant: “father” as the man whose sperm was used to create the child – I will refer to this man as the progenitor – and “father” as the man who fulfils the responsibilities that we might expect of a father (men who adopt children are also considered fathers, for instance). In my view, it is this man – the “social father” who behaves as we expect a father to – who should be considered to be the father.
There are people who argue that it is just one thing makes a man a father – the intention to have a child or the genetic connection, for instance – and there are those who argue that fatherhood is a more pluralistic concept, that there are a variety of ways in which a man can come to be regarded as a father. With such a view, it would be possible to regard both the progenitor and the social father as a father. What I will concentrate on in this paper is the coherence of the claim for reimbursement and/or compensation against the background of the policy that regards genetic relatedness as defining paternity and therefore paternal responsibility. I will consider claims for compensation against this background while also arguing that its narrow view of fatherhood is unsatisfactory
Where a man is willing to reject the children outright on learning of misattributed paternity, a claim for compensation for the burdens of rearing the children and the return of monies given to support them has a certain coherence, especially where policy assumes that genetic relatedness defines paternity. But if a man who suddenly rejects the children has been their social father for a long time, the repudiation of the children also seems immoral. Describing oneself to a child as his/her father and behaving in a way that a father should behave almost invariably engages the emotions of the child, as well as the parent. It is also tantamount to making certain very serious commitments to the child, not least of which is that his/her interests are vital to oneself and that abandoning him/her is unconscionable because the relationship is (virtually
) unconditional. Abandonment can sometimes be justified in the interests of the children, but abandonment because of misattributed paternity does not seem to be open to this kind of justification. Thus, the claim for compensation appears coherent, given the policy, but the man's behaviour is wrong.
What about a man who has been a social father, but who thinks that genetic relatedness matters. In particular, he holds the view that children have a right to know who their progenitors are, and, more importantly, that children are better reared by their progenitors. This man could argue that his decision to abandon the children to their genetic father is in the children's best interests. I have argued elsewhere that children do not have a right to know their genetic origins,20
but even if they did, it is not clear that their best interests are served by being reared by a stranger who happens to be genetically more related, nor does the abandonment ensure that this stranger will indeed be willing to parent them (as opposed to being legally required to provide financial support). In this case, we might say that that man is well motivated but misguided.
When we consider the question of whether his claim to compensation is coherent, it is noticeable that he holds a more pluralistic view than genetic‐relatedness view. He considers the progenitor to be in some sense a father (a genetic father) but simultaneously regards himself as having been a father (a social father) because he has an established relationship with the children. In this case, according to my previous argument from serious commitments, this man has behaved well up to the time he found out he is not the genetic father, and he has been principled in giving way to the progenitor father. But his claim for reimbursement and compensation is less coherent for reasons I will now discuss in relation to yet another type of case.
It is not uncommon for men who discover misattributed paternity to want to continue being the social father to the children. Indeed, far from abandoning the children, they are willing to fight to have access to them in order to continue to be a social father. What if such a man simultaneously wanted reimbursement and compensation? This claim is also incoherent because, as a social father, he has received the benefits of fatherhood
as well as the burdens. In bald terms, such a man has had something for his money, something beyond price. Considering himself as the social father is tantamount to saying that he has raised and financed his own
children. From this point of view, it is difficult to see what the compensation is for. Before discussing this further there is one other type of claim to consider.
Consider a man who has paid child support for supposedly genetically related children but who has resolutely refused to carry out on‐going parental responsibilities, refusing to have any social contact or form any emotional attachment to the children, paying only because the state insists that he does. In such a case, if a paternity test proved negative, reimbursement with interest
seems justified because the financial support was extracted solely on the basis of a genetic connection that did not exist, and this financial support was the only connection the man had with the children. He was in no other sense a father to the children, and did not want to be a father in any sense. However, the more an unwilling man becomes a social father, even if this is based on deception, misunderstanding or misinformation, the less the claim for compensation and reimbursement is justified because, as previously argued, the more he has received the benefits of fatherhood.
This brings us back to the relevance of choice. Men who consent to infertility treatment using donor sperm, or who adopt children or who want to raise children who are known not to be genetically related to them, make a deliberate choice to do so. Social fathers who discover misattributed paternity are not given a choice until a point where there is less of a choice because they are already emotionally involved. If the choice of what to do after misattributed paternity is discovered can count as a choice, it is a choice after the fact of having already carried the burden. So, even if it can be argued that they have raised their own children (in the sense I have outlined above), should they be compensated for not having being given a choice in the matter long ago when the deception started?
There are many occasions when things work out better for us than we could have imagined, when the first event in a chain is not of our own choosing, or is one that we would rather, at the time at least, had not happened. Whether the unwanted first event is a candidate for compensation depends on whether the event is judged a misfortune all things considered. Having children sometimes results from an initially unwanted event; children may not be planned but are conceived and born anyway, and while it is a shock and concern at the time, later the parents are glad that things turned out as they did. Likewise, some men embrace fatherhood when a pregnancy was not just unplanned but also actively unwanted, or even the result of some deception.xi In this respect, there are some similarities between the men who become fathers as the result of unplanned or unwanted pregnancies and men who become fathers as a result of misattributed paternity. If the process of becoming a father (in the richer, social sense of fathering, rather than as a progenitor) entails emotional engagement with children, it is difficult to see how a social father could honestly claim to regret having his children, and the absence of regret undermines a claim for compensation. The choice to become a father may have been absent, but the outcome is not something one would wish to change as the child(ren) are viewed as a good thing.
A distinction can be made between choices that we do not have for reasons of fate or similar, and choices that we are unable to make as the result of deception. Men who become fathers as a result of deception of whatever kind, might still feel that they are owed compensation for the actual deception, even if they are not unhappy with the outcome at the point in time that the deception is discovered. Here it seems reasonable to take an external view of the predicament. While a man thinking as a father at the time the deception is discovered is unable to regret his children, it is possible looking from the outside to see that this man at the crucial time of the deception might or would have made a different decision, one that would not have resulted in his becoming a father, if he had not been deceived. From this perspective, it could be the case that but for the deception he would not have become a father. But how this injury should be compensated for is difficult to quantify except with reference to the costs arising as a result of the loss of autonomy, and this would return us to a figure close to that of the cost and burdens of raising the children concerned.
Before this figure is calculated, however, we need to factor in a different kind of choice, the choice men have about what kind of social father they will be. Parenting styles differ. While many parents adjust their own life choices and desires to accommodate the needs of their children, the extent to which parents spend money on their children can differ enormously, even where their economic backgrounds are very similar. Likewise, parents differ in their views about how much time and energy is enough time and energy to spend on their children. Men who are fathers through deception are no less free than men who are intentional fathers to choose the kind of father they will be. If the compensation for loss of autonomy is to be pegged to the cost of child rearing, it should perhaps be pegged nearer to the basic cost of meeting a child's needs rather than to the actual cost to a particular father, as these will reflect his own choices as much as the needs that had to be fulfilled.
To summarise: based on this analysis whether or not a man is entitled to reimbursement or compensation depends upon the circumstances. The most obvious case for reimbursement occurs when a man has paid child support but has no relationship at all with the child(ren). The more this man becomes a social father, the more difficult it is to demonstrate injury because it becomes difficult for him to argue that he would change the circumstances in which he finds himself, and also because he has reaped the benefits of fatherhood along with shouldering the burdens. The longer a man is a social father, the more he can be regarded as behaving badly if he severs his relationship with his children, which act would seem to show that he does indeed regret the circumstances in which he finds himself. In this case he becomes a candidate for both reimbursement and compensation but only by doing something morally bad – abandoning his children. Viewed from his own perspective, a social father who is unwilling to sever relationships with his children may not be a candidate for either reimbursement or compensation, but viewed from an external perspective, it is arguable that he is owed compensation for the undermining of his autonomy at the point when the deception started. If the level of this compensation is to reflect the cost to him of the loss of this autonomy, it must take into account the extent to which his own choices about how to behave as a social father have affected his spending habits and the time and effort expended on the child(ren.) This general principle might also reduce the amount owing to those who are willing to sever relationships with the child(ren).
The external point of view can legitimately take into account two further things. The first is the interests of the children concerned. Depending upon the circumstances, the interests of the children may be affected if the resident parent is required to make a large financial settlement on the deceived man. Arguably, however, a debt is a debt however it is generated and many children suffer as a result of the debts of those upon whom they depend. Parents cannot be released from their debts just because they have dependent children, although repayment can be scheduled so as to minimise the consequent disadvantages to them. Second, it is reasonable to take into account the general effect on the interests of children if claims for misattributed paternity are encouraged. It is not in the public interest for social fathers to use as a benchmark for fatherhood what is required of absent fathers by the state in child support. Nor is it in the public interest for the view to be perpetuated that merely paying child support is a legitimate means of discharging one's responsibilities to one's children. Arguably, children need active fathers, not just money from men to contribute towards their upkeep. While a man might feel wronged by the deception involved in misattributed paternity, it could be argued that it is in the interests of the children to remain in a stable family. Likewise, it is rarely in the interests of children to be separated from men who have been actively fathering them. It is likewise not in the interests of children to encourage the view that fathering is primarily about providing financial child support. Nor is it in the interests of children to encourage the view that their “real” fathers are sperm providers.22
Nor should it be taken for granted that children have an interest in knowing or right to know their genetic origins. Rather than clarifying matters of paternity, paternity tests may well erode the meaning of fatherhood, and this erosion must be taken into account when considering the value of paternity testing as a means of allocating the financial responsibility for children.
Against this background, it is easy to become sympathetic to the views of those campaign groups who want compulsory genetic testing of children at birth. This would be one solution to the problem of misattributed paternity, but it concedes too much to the view that parental responsibilities are generated only with reference to genetic relatedness (as either a cause or marker of those responsibilities). It may be another example of measuring that which is most easily measured, rather than that which ought to be measured.