Law and the Cost of Sex
posted by Nate Oman
A German court recently ruled that a gynecologist who improperly implanted a contraceptive device was potentially liable for child support when his patient conceived an unwanted child. The decision has garnered some critical commentary in Germany, where it has been suggested that by holding that the brute existence of a child constitutes a legal wrong, the court has sent a horrible message to the child involved. Be that as it may, there is probably a fair efficiency argument in favor of the decision.
Sex has costs. The most obvious is pregnancy or the risk of pregnancy, which exacts considerable physical costs on a woman’s body but also results in a child that will create enormous costs. Who should bear the costs of sex? In a sense, this is what the abortion debate is about. Should we use a medical procedure to shift (some) of the costs of sex from the woman to the unborn child? (Folks differ dramatically on the justice of making the fetus bear these costs; it strikes me as wildly unfair but others disagree.) Paternity suits and child-support obligations are another way of allocating costs. Biology and tradition throws the costs of child rearing overwhelmingly on women, and the law tries to compensate by shifting some of those costs to men.
Traditional law and economics suggests that the cost of sex ought to be assigned to the cheapest cost avoider. A social conservative might follow through on this logic and argue that the costs of sex should never been shifted by the law to parties other than those actually having sex, as they can always avoid sex via abstinence. The problem with this argument as an economic matter is that it assumes that abstinence has no costs. If we assume that sex has a positive value then the economic argument may counsel in favor of shifting the costs of sex to other parties whose costs are less than the benefit of foregone sexual activity. Hence, one might argue that the cost of the doctor performing the contraception implantation with greater care is less than the cost of the couple doing something else with their evening. We would still need to know, however, that additional care by the doctor would have been cheaper than some alternative form of contraception such as a condom. Finally, there is the issue of contract. One might argue that the doctor ought to pay because he failed to do what he promised to do. (Note: the German court’s decision seems to have sounded in tort rather than contract to the extent that cases sound in tort or contract in the civil law system.) This, however, gets us into the question of optimally efficient contract damages, and I think that it is pretty unlikely that the payment of the 18 years of child support by the doctor in this case is economically efficient.
Of course, the analysis above assumes that the cost-shifting process has no externality problems. The critical commentary on the court’s decision essentially amounts to the claim that the decision also imposes psychic costs on the child in question. This may or may not be true. It can’t be good for a child to be publicly labeled by her parents as an unwanted cost, on the other hand I doubt that most toddlers are following the doings of high courts closely. At the end of the day, I don’t have much sympathy for the doctor in this case. I’ve got even less for the father, who seems to have entirely exited the picture. After all, economics aside a child ought to be much more to a parent than simply a cost.
November 16, 2006 at 10:38 am
Posted in: Current Events, Economic Analysis of Law
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Responses (13)
That's interesting, but... - November 16, 2006 at 11:26 am
Bodice ripping, mile high club, eunuchs, and now the cost of sex (though admittedly, any L&E analysis of sex is probably, well, sterile)… do any of you guys need a night off?
Dave Hoffman - November 16, 2006 at 11:28 am
Hey! My post was really about taxes and norms!
Nate Oman - November 16, 2006 at 11:38 am
“(though admittedly, any L&E analysis of sex is probably, well, sterile)”
Sterile sex seems to have been the goal here…
James Grimmelmann - November 16, 2006 at 1:17 pm
This, however, gets us into the question of optimally efficient contract damages, and I think that it is pretty unlikely that the payment of the 18 years of child support by the doctor in this case is economically efficient.
Perhaps not, but payment of 18 years of child support by the doctor’s insurer may be.
Jens - November 16, 2006 at 4:05 pm
I can’t follow your comments about the father.
From the press release:
“Der Vater des Kindes, den die Klägerin im Zeitpunkt der Zeugung etwa seit einem halben Jahr kannte, hat die Vaterschaft anerkannt, lebt aber nicht mit der Klägerin zusammen. Er kommt seiner Unterhaltspflicht gegenüber dem gemeinsamen Sohn nach.”
“The child’s father, whom the plaintiff knew for half a year at the time of the siring, has accepted paternity, but does not live together with the plaintiff any longer. He complies with his child support obligations regarding the mutual son.”
The father did’nt have a relationship with the mother any longer, but paid his child support.
Why has he “entirely exited the picture” IYO?
Btw, “a German court” is the German Federal Court (Bundesgerichtshof, BGH).
The ruling is not yet available on the court’s website, but the address will be:
http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&Datum=Aktuell&Sort=12288&Seite=1&nr=37948&pos=41&anz=484
Michael Lee - November 16, 2006 at 4:31 pm
Can a child be a tort?
Seems the plaintiff had a duty to mitigate the potential damages against the defendant. Was the defendant afforded any opportunity to pay for an abortion? Shouldn’t the woman’s choice to carry the “tort” to birth create a shared liability on her part? Where is the co-defendant father? Can the doctor sue for custody and/or visitation? What is the economic standard for child support; his lifestyle or the mother’s?
So many questions…
Nate Oman - November 16, 2006 at 4:31 pm
Jens: Thanks for the info. From the Reuter’s report I linked to it was unclear whether the father was making support payments, although it did mention that the court stated that he might also have a cause of action against the doctor.
sk - November 16, 2006 at 6:24 pm
For another take on similar issues, the High Court of Australia (the highest court in the Australian judicial system) dealt with the same issues recently in the case of Cattanach v Melchior [2003] HCA 38. The text of the decision is available online at http://www.austlii.edu.au/au/cases/cth/HCA/2003/38.html.
Time Spot Check - November 16, 2006 at 6:38 pm
I just needed you time zone. Thanks!
Jens - November 17, 2006 at 5:02 am
Well, the mother also made claims ceded by the father.
@Michael: The father wasn’t co-defendant, “economically” he was plaintiff, he ceded his claim to the mother.
As to whether the defendant was afforded any opportunity to pay for an abortion: Abortions are illegal in most cases, yet not punishable when some conditions are fulfilled. I don’t think this is something the defendant can object.
Furthermore, the debate about children as damage is not new. It arose first about cases where early diagnostics hadn’t found severe disabilities of the child, and the parents claimed they would have aborted the child if they had known.
Simon - November 17, 2006 at 11:00 am
A hypothetical, to drain the emotive content inherent in a debate involving children out of the case. If a doctor was paid to vaccinate a person against the dreaded disease “X” (a nonfatal disease that requires an expensive course of hospital inpatient treatment), and the doctor made a mistake in the administration of the vaccine which caused the patient to be unprotected from “X”, would the doctor then be liable for the costs of treatment if the patient shortly thereafter contracted “X”?
The Law Is Sexist - November 17, 2006 at 6:03 pm
Biology and tradition throws the costs of child rearing overwhelmingly on women, and the law tries to compensate by shifting some of those costs to men.
Then the law violates the Equal Protection Clause.
Jens - November 17, 2006 at 7:00 pm
I don’t understand what you mean.
Who is denied equal protection?
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