Comments on: Law and the Cost of Sex

By: Jens

Jens — Sat, 18 Nov 2006 02:00:24 +0000

I don’t understand what you mean.

Who is denied equal protection?

By: The Law Is Sexist

The Law Is Sexist — Sat, 18 Nov 2006 01:03:34 +0000

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.

By: Simon

Simon — Fri, 17 Nov 2006 18:00:34 +0000

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”?

By: Jens

Jens — Fri, 17 Nov 2006 12:02:18 +0000

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.

By: Time Spot Check

Time Spot Check — Fri, 17 Nov 2006 01:38:37 +0000

I just needed you time zone. Thanks!

By: sk

sk — Fri, 17 Nov 2006 01:24:45 +0000

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.

By: Nate Oman

Nate Oman — Thu, 16 Nov 2006 23:31:21 +0000

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.

By: Michael Lee

Michael Lee — Thu, 16 Nov 2006 23:31:18 +0000

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…

By: Jens

Jens — Thu, 16 Nov 2006 23:05:53 +0000

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

By: James Grimmelmann

James Grimmelmann — Thu, 16 Nov 2006 20:17:23 +0000

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.

By: Nate Oman

Nate Oman — Thu, 16 Nov 2006 18:38:58 +0000

“(though admittedly, any L&E analysis of sex is probably, well, sterile)”

Sterile sex seems to have been the goal here…

By: Dave Hoffman

Dave Hoffman — Thu, 16 Nov 2006 18:28:20 +0000

Hey! My post was really about taxes and norms!

By: That's interesting, but...

That's interesting, but... — Thu, 16 Nov 2006 18:26:11 +0000

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?