A man's right to choose

EARLIER THIS MONTH, a 25-year-old Michigan computer programmer named Matthew Dubay sued in federal court to avoid paying child support for his 7-month-old daughter. The girl's mother, he alleges, had claimed to be both infertile and on birth control, and he had made it clear all along that he didn't want children. The resulting pregnancy, as he saw it, was simply not his fault, and the child not in any way his responsibility.

It's a common enough situation, but the National Center for Men, a New York-based advocacy group that is coordinating and paying for the lawsuit, claims to have waited years for a plaintiff as compelling as Dubay. The Center has labeled (and, incidentally, trademarked) the case ''Roe v. Wade for Men."

Around the same time, the European Court of Human Rights unanimously ruled that a woman could not implant embryos created in a course of in vitro fertilization if the man involved did not want her to. The painful particulars of the case have made it front-page news in England, where the couple is from. The plaintiff, a young woman named Natallie Evans, had undergone IVF with her fiance before being rendered infertile by treatment for ovarian cancer, and if she isn't able to reverse the court's decision by October, the embryos will expire and she will lose her last chance to have biological children.

Discussions of reproductive rights tend to focus on the woman, and in particular the availability of abortion and contraception. While it's too early to tell whether these cases represent the first stirrings of a movement, a few so-called men's rights activists are trying to expand the meaning of reproductive rights. All of which raises the question of what, exactly, those rights are. Is a man's right to, in effect, disown a biological child comparable to a woman's right to have an abortion? What does equality mean when it involves pregnancy and childbirth, processes in which the woman's role still outweighs the man's? Most broadly, 33 years after Roe v. Wade, is this a step forward for gender equality, or a step back?

. . .

According to John Robertson, a University of Texas law professor and reproductive rights specialist, the idea that men have certain rights is hardly controversial. ''Clearly," he says, ''a man has reproductive rights. He can't be forced to reproduce. He can't be sterilized." But those rights are limited, and sharply, by the fact that most of the reproductive process takes place in a woman's body.

When conception is removed from the woman's body-as is the case with in vitro fertilization-courts have found that men and women have equal status in reproductive decisions. The Evans case in England is only the most recent example. In the US, according to Susan Crockin, a Newton-based lawyer who specializes in reproductive technology cases, courts dealing with frozen embryo disputes ''have repeatedly favored the right of the former partner who does not want to procreate over the other partner's right to procreate," siding with the parent-in most cases the father-who doesn't want to implant the embryo.

The Massachusetts Supreme Judicial Court provided one of the country's more influential decisions on this score. In a 2000 case called AZ v. BZ, the court ruled that a man who had signed seven agreements granting his wife control over their frozen embryos in the event of a divorce could nonetheless change his mind and prevent her from implanting them. To decide otherwise, the court found, would be ''forced procreation."

The ex-wife (referred to in court papers as BZ) argued that, since the stakes and cost to her in creating an embryo, even an in vitro embryo, were much higher than for her ex-husband, her desires should count for more. Providing sperm, her lawyers pointed out, is one of the more straightforward medical procedures imaginable, while extracting an egg is a difficult, occasionally painful process involving extended hormone and drug treatments. And more important, she argued, women have a much shorter reproductive life span than men: BZ was 45, and in losing the case she, like Natallie Evans, lost her last chance at biological motherhood.

Nevertheless, the court rejected these arguments and decided that, as long as the embryo is still outside the woman's body, men's reproductive rights carry the same weight as women's. The Dubay lawsuit is after something similar but far broader. ''Reproductive choice should be a fundamental human right, not just a woman's right," says Mel Feit, executive director of the National Center for Men. Right now, he points out, a man who gets a woman pregnant must not only accede to the woman's choice, but subsidize it if she wants the child. Men, as he sees it, are reduced to reproductive beasts of burden, helpless in the face of feminine caprice. ''There's a huge disparity," he says. ''All the choices will be hers, and all the responsibility will be his."

Of course, the Dubay lawsuit deals with an actual pregnancy (and an actual child) rather than an in vitro embryo. As a result, the man's right not to have children (or, for that matter, his desire to have them) runs up against a woman's constitutionally protected right to determine what happens in her body. Dubay, though, is not arguing that he should have been able to force his girlfriend to get an abortion. The choice he wants is primarily financial and semantic. He wants, in effect, to pretend he doesn't have a child, and live his life accordingly.

The problem, most legal experts respond-the reason that Dubay is almost certain to lose his case-is that the courts see disputes like his as not between a mother and father but between a father and his child. As Leonard Glantz, a lawyer and public health professor at Boston University, puts it, Dubay ''may wish to sue the mother, but she can't relieve him of his paternal obligation to the child."

In abortion, women have the legal option, which men lack, of freeing themselves of the consequences of sexual behavior. Family law experts don't see any reasonable way of rectifying that imbalance without giving men veto power over a woman's right to choose, or without threatening the well-being of the child. Legal experts, along with the courts, tend to see the child's best interests being served by having, in the words of University of Wisconsin law professor Alta Charo, ''as many solvent adults [as possible] available to help the child through the world."

. . .

While the law may encourage the involvement of two solvent parents in child-rearing, it also, however, maintains an important loophole: Mothers are afforded a basic right not to inform the father of a child's existence at all. Again, it's an inequality stemming from nature, since a woman doesn't need to be informed that she has become a parent. (It's not a universal right, however: Single mothers who apply for welfare are required to identify the father and pursue child support.)

No doubt it's a right that Matthew Dubay wishes his ex-girlfriend had exercised. But there are other fathers who find this to be the most problematic reproductive inequity of all. The issue has been sharply raised in the context of abortion and the sort of spousal notification laws the Supreme Court declared unconstitutional in 1992. Today, though, similar questions of how much a father is entitled to know are arising around adoption.

In the most recent of several cases nationwide, a Florida man named Jeremiah Clayton Jones is suing to block the adoption of his son, claiming that he hadn't even known about the child until the adoption lawyer called him. Florida, like about 30 other states, has a ''putative father registry" where fathers can sign up to claim fatherhood rights, but, according to the lawsuits, such registries are often obscure and difficult to find information about. And they leave a father with no recourse if his child is adopted in another state.

According to the University of Texas's Robertson, the adoption rights issue is ''the real issue" for men's reproductive rights. ''The Supreme Court has made clear that an unwed father has a right to rear his child," he says. ''There's a series of cases saying that men who immediately after the birth of a child show an interest and try to be involved in the rearing of a child have a right to be a custodial parent as well." Senator Mary Landrieu of Louisiana plans to introduce a bill proposing a nationwide father registry later this year.

In other words, it's the fathers fighting to claim their children, not to disavow them, who may have hit on the most promising idea of ''men's rights." Unlike the right to avoid parental responsibilities, the right to assert them may in fact have the blessing of the Founding Fathers.

Drake Bennett is the staff writer for Ideas. E-mail drbennett@globe.com.