Preglimony

Stanford Law Review

Volumn 63, Issue 3, 2011, Pages 647-698

  Motro, Shari ^a  

^a UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

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EID: 78751611140     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (189)

1. See Jennifer A. Reich & Claire D. Brindis, Conceiving Risk and Responsibility: A Qualitative Examination of Men's Experiences of Unintended Pregnancy and Abortion, 5 INT'L J.MEN'S HEALTH 133, 140 (2006) (noting that in a study of men whose sexual partners had undergone an abortion, the majority stated that "pregnancy prevention is the primary responsibility of women")
2. Since the focus of this Article is on pregnancy, "sex" or "sexual relations" generally refers to penile-vaginal penetration. There are, of course, many other types of sex. Susan Appleton has argued that the legal and cultural focus on heterosexual intercourse to the exclusion of other types of physical intimacy reflects a deep-seated disregard for women's pleasure. See Susan Frelich Appleton, Toward a "Culturally Cliterate" Family Law?, 23 BERKELEY J. GENDER L. & JUST. 267, 285-86 (2008)
3. See infra note 34
4. See infra note 35
5. A number of scholars have begun to critique the law's hands-off approach to sexual fraud. But these scholars do not focus on pregnancy in particular and they are unconcerned with consensual sex that involves no fraud or deceit. See Martha Chamallas, Consent, Equality, and the Legal Control of Sexual Conduct, 61 S. CAL. L. REV. 777, 830-35 (1988) (arguing that criminal law is not "at a point where deception is generally regarded as an impermissible inducement to sex"); Jane E. Larson, "Women Understand So Little, They Call My Good Nature 'Deceit'": A Feminist Rethinking of Seduction, 93 COLUM. L. REV. 374, 381 (1993) (arguing that the existing adjudicatory system is capable of "identify[ing] the absence of authentic consent required under [a] theory of sexual fraud"); Michelle Oberman, Sex, Lies, and the Duty to Disclose, 47 ARIZ. L. REV. 871, 889 (2005) ("The post-seduction norm of nondisclosure [that enables sexual fraud] represents a degree of complacency with regard to bald-faced lying that is almost unparalleled in the common law governing tort and contract."); Lea VanderVelde, The Legal Ways of Seduction, 48 STAN. L. REV. 817, 892-93 (1996) (exploring the history of seduction under the law and treatment of sexual fraud under the Field Codes). The work of Linda Hirshman and Jane Larson does address the imbalance at the heart of the default code governing consensual heterosexual sex, but Hirshman and Larson do not focus on conception. See LINDA R. HIRSHMAN & JANE E. LARSON, HARD BARGAINS: THE POLITICS OF SEX 281 (1998)
6. FED. INTERAGENCY FORUM ON CHILD & FAMILY STATISTICS, AMERICA'S CHILDREN IN BRIEF 4 (2008); see also Jeffrey A. Parness & Zachary Townsend, For Those Not John Edwards: More and Better Paternity Acknowledgments at Birth, 40 U. BALT. L. REV. 51, 86 (2010) ("In 2007, the number of children in the United States born out of wedlock exceeded 1.7 million, more than nineteen times the estimated number of children born out of wedlock in 1940.")
7. An Overview of Abortion in the United States, GUTTMACHER INST., http://www.guttmacher.org/media/presskits/2005/06/28/abortionoverview.ht ml (last visited Oct. 26, 2010)
8. Shari Motro, The Price of Pleasure, 104 NW. U. L. REV. 917 (2010)
9. See People ex rel. Lawton v. Snell, 111 N.E. 50, 51 (N.Y. 1916); In re Cirillo's Estate, 114 N.Y.S.2d 799, 801 (Sur. Ct. 1952); Jelen v. Price, 458 N.E.2d 1267, 1270 (Ohio Ct. App. 1983)
10. See, e.g., CAL. FAM. CODE § 7637 (West 2010) (an unwed father may be directed "to pay the reasonable expenses of the mother's pregnancy and confinement"); R.I. GEN. LAWS § 15-8-1 (2010) ("The father of a child which is or may be born out of lawful wedlock is liable to the same extent as the father of a child born in lawful wedlock ... for the reasonable expense of the mother's pregnancy and confinement ... ."); VA. CODE ANN. § 20-49.8(A) (2010) ("A judgment or order establishing parentage ... . may direct either party to pay the reasonable and necessary unpaid expenses of the mother's pregnancy and delivery or equitably apportion the unpaid expenses between the parties."); State ex rel. Reitenour, 807 A.2d 1259, 1262 (N.H. 2002) (relying on N.H. REV. STAT. ANN. § 168-A:1 (2002) in holding that "[o]nce paternity has been established, the father of a child born out of wedlock is liable for the 'reasonable expense of the mother's pregnancy and confinement'")
11. See, e.g., 750 ILL. COMP. STAT. ANN. 45/14 (West 2010); MASS. GEN. LAWS ANN. ch. 209C, § 9 (West 2010); MISS. CODE ANN. § 93-9-7 (2010)
12. See, e.g., CAL. FAM. CODE § 7637; COLO. REV. STAT. § 19-4-116(3)(a) (2010); VA. CODE ANN. § 20-49.8(A)
13. See AM. LAW INST., PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION § 3.01, at 464 (2002) ("[I]t is now generally accepted that children of informal and formal relationships must be treated equally with respect to the amount and duration of child support.")
14. See Jeffery W. Santema, Annotation, Liability of Father for Retroactive Child Support on Judicial Determination of Paternity, 87 A.L.R. 5th 361, 379-80 (2001) ("The parents of a child born out of wedlock have an obligation to support the child. ... It is the fact of paternity or maternity, not that of marriage, that obligates the parents to nourish and rear the child. Hence, the support rights of children born out of wedlock are the same as those of children born in wedlock.")
15. See Coxwell v. Matthews, 435 S.E.2d 33, 34 (Ga. 1993) ("[T]he duty to protect and maintain a child includes the duty to ensure that the child receives adequate medical care prior to and during birth.")
16. See, e.g., id. at 34 (holding that a claim for $15,459 in pregnancy- and birth-related medical expenses may be made in an action to determine the paternity of a child and affirming the trial court's order that the father reimburse the mother for the entire amount); Sisneroz v. Polanco, 975 P.2d 392, 398-99 (N.M. Ct. App. 1999) (holding that the mother of a child born out of wedlock had standing to seek reimbursement for pregnancy and birthing expenses while recognizing the trial court's discretion to grant or deny pregnancy and birthing costs); State ex rel. Dep't of Health & Human Res. v. Carpenter, 564 S.E.2d 173, 176 (W. Va. 2002) (requiring a biological father to reimburse the Department of Health and Human Resources for $4,879 in birth and medical expenses paid on behalf of the mother); Kathy L.B. v. Patrick J.B., 371 S.E.2d 583, 587 (W. Va. 1988) (requiring a child's biological father to reimburse the mother for birth expenses); see also, e.g., MASS. GEN. LAWS ANN. ch. 209C, § 9(a) ("An order may be entered requiring a parent chargeable with support to reimburse the mother ... for medical expenses attributable to the child or associated with childbirth or resulting from the pregnancy."); N.D. CENT. CODE § 14-20-48 (2010) (adopting language from section 621(d) of Uniform Parentage Act); OKLA. STAT. tit. 10, § 7700-621 (2010) (adopting same section 621(d) language); TEX. FAM. CODE ANN. § 160.621 (West 2010) (also adopting section 621(d) language); id. § 160.636(g) ("On a finding of parentage, the court may ... on a proper showing, order a party to pay an equitable portion of all of the prenatal and postnatal health care expenses of the mother and the child."); UTAH CODE ANN. § 78B-15-613 (LexisNexis 2010) (adopting language from section 621(d) of Uniform Parentage Act); WASH. REV. CODE ANN. § 26.26.570 (West 2010) (adopting same section 621(d) language); WYO. STAT. ANN. § 14-2-813 (2010) (adopting same section 621(d) language)
17. UNIF. PARENTAGE ACT § 621(d) (amended 2002), 9B U.L.A. 346 (2001 & Supp. 2008)
18. Many jurisdictions have been silent on the issue, but Minnesota, Montana, and Ohio have construed the Uniform Parentage Act not to include lost wages as part of the reasonable expenses associated with the birth. See Bunge v. Zachman, 578 N.W.2d 387, 389 (Minn. Ct. App. 1998); In re Paternity of W.L., 855 P.2d 521, 523-24 (Mont. 1993); Jelen v. Price, 458 N.E.2d 1267, 1270 (Ohio Ct. App. 1983). But see Horner v. Dible, No. S-93-44, 1994 WL 319071, at 3 (Ohio Ct. App. June 30, 1994) (affirming the trial court's award of lost wages under new statutory language). Lost wages are also not included in reasonable expenses of pregnancy in Arkansas. See Taylor v. Finck, 211 S.W.3d 532, 537 (Ark. 2005)
19. See, e.g., In re Baby Girl D., 517 A.2d 925, 929 (Pa. 1986) (construing the "reasonable lying-in expenses" language to mean that Lamaze classes, prenatal care, and sonograms are not chargeable to the adopting parents to reimburse for expenses on behalf of the natural mother). The court in Taylor relied on this holding to deny reimbursement to a birth mother for such expenses from the birth father. 211 S.W.3d at 537
20. See, e.g., Taylor, 211 S.W.3d at 537 ("Lying-in expenses normally would not include items such as maternity clothes, lost wages, or counseling."). A minority of states extend a man's pregnancy-related obligations beyond the narrow scope guided by the best interests of the child to encompass duties to the woman in her own right. Most notably, Delaware's domestic relations statute dedicates an independent code section to the "[d]uty to support woman with child conceived out of wedlock." DEL. CODE ANN. tit. 13, § 504 (2010). This provision empowers judges to allocate the costs of pregnancy and birth as they see fit. Despite this broad statutory language, however, there is little indication that Delaware courts have awarded pregnant women anything in excess of the amount typically available in other states under the child support rubric: reimbursement for medical expenses directly related to pregnancy and childbirth. See DCSE/J. O'C. v. D.U., No. CN07-03863, 2009 WL 1205835, at 2 (Del. Fam. Ct. Mar. 18, 2009) (discussing only out-of-pocket delivery expenses in connection with a man's pregnancy-related obligation)
21. These include abdominal cramping, irregular bleeding, nausea, vomiting, and diarrhea. See ELIZABETH RING-CASSIDY & IAN GENTLES, WOMEN'S HEALTH AFTER ABORTION 2-3 (2002); Abortion-Before, During, and After an Abortion: When to Call a Doctor, WEBMD, http://women.webmd.com/tc/abortion-before-during-and-after-an-abortion-w hen -to-call-a-doctor (last updated Sept. 29, 2008); Possible Physical Side Affects [sic], AM. PREGNANCY ASS'N, http://www.americanpregnancy.org/unplannedpregnancy/possibleside effects.html (last updated Sept. 2007). On the psychological effects of abortion and debates surrounding the extent and relevance of these effects, see Reva B. Siegel, Lecture, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641 (2008); Jeannie Suk, The Trajectory of Trauma: Bodies and Minds of Abortion Discourse, 110 COLUM. L. REV. 1193 (2010); and Emotional Reactions After an Abortion, WEBMD, http://www.webmd.com/hw-popup/emotional-reactions-after -an-abortion (last updated Sept. 29, 2008)
22. See F. GARY CUNNINGHAM ET AL.,WILLIAMS OBSTETRICS 247 (22d ed. 2005) ("Although serious complications of abortion most often occur with criminal abortion, even spontaneous abortion and legal elective abortion continue to be associated with severe and even fatal infections. Severe hemorrhage, sepsis, bacterial shock, and acute renal failure have all developed in association with abortion but at a much lower frequency. Uterine infection is the usual outcome, but parametritis, peritonitis, endocarditis, and septicemia may all occur." (citations omitted)); RING-CASSIDY & GENTLES, supra note 21, at 2; Joel Brind et al., Induced Abortion as an Independent Risk Factor for Breast Cancer, 50 J. EPIDEMIOLOGY & COMMUNITY HEALTH 481 (1996); David A. Grimes, Sequelae of Abortion, in MODERN METHODS OF INDUCING ABORTION 95, 101-02 (David T. Baird et al. eds., 1995)
23. Most U.S. counties do not have abortion providers. This means that women must travel, sometimes for hours, to the nearest clinic. Once they arrive, an abortion typically costs several hundred dollars, and public funding for abortions is limited. As a result of their difficulties reaching a clinic and raising the money for the procedure, pregnant women who togethare both poor and young are more likely to undergo later-term-and therefore riskier- abortions. See The New Health Care Reform Legislation: Pros and Cons for Reproductive Health, GUTTMACHER INST. (Mar. 29, 2010), http://www.guttmacher.org/media/inthenews/ 2010/03/29/index.html
24. I discuss these effects in further detail in The Price of Pleasure. See Motro, supra note 8, at 923-24
25. Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 374-75 (1992) (footnotes omitted); see also ANNIE MURPHY PAUL, ORIGINS: HOW THE NINE MONTHS BEFORE BIRTH SHAPE THE REST OF OUR LIVES 167 (2010) ("We're used to thinking of adolescence as a time when our bodies are changing, when our emotions are unruly-well, pregnancy is very similar ... . It's a very disorderly time, when a lot of things are in flux. But that fluidity also opens up new opportunities for positive change. ... You have to let yourself fall apart, and then put the pieces back together in a different way." (quoting therapist Catherine Monk))
26. See Cesarean Section-Topic Overview, WEBMD, http://www.webmd.com/baby/ tc/cesarean-section-topic-overview (last updated Feb. 24, 2010) ("[I]t may take 4 weeks or longer to fully recover [after a C-section]."). On recovery of the perineal area in particular, see Frederick R. Jelovsek, Vaginal Conditions After Delivery, WOMEN'S HEALTH RESOURCE, http://www.wdxcyber.com/npreg14.htm (last visited June 6, 2010) ("One study that looked at how long, on the average, it took women to recover various functions after normal vaginal delivery found that the median time (time for 50% of subjects) 'for perineal comfort in general (including walking and sitting) was 1 month (range, 0-6 months); 20% of women took more than 2 months to achieve general perineal comfort. For comfort during sexual intercourse, the median time was 3 months (range, 1 to more than 12 months); 20% of women took longer than 6 months to achieve comfort during sexual intercourse.'" (emphasis omitted))
27. Joanna L. Grossman, Pregnancy, Work, and the Promise of Equal Citizenship, 98 GEO. L.J. 567, 570 (2010); see also id. at 578 ("An important, yet under-examined, aspect of pregnant women in the modern workplace is the potential for conflict between the physical effects of pregnancy and paid work. ... Historically, women 'with child' were presumed incapable of work, particularly in the later stages of pregnancy. ... Today, the opposite presumption is often applied-uncomplicated pregnancy has no meaningful physical effects that bear on a woman's ability to work. The presumption of incapacity and the presumption of uninterrupted capacity are, however, both flawed.")
28. PAUL, supra note 25, at 59, 73-74; see also Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955, 955-56 (1984) ("The power to create people is awesome. Men are profoundly disadvantaged by the reality that only women can produce a human being and experience the growth of a child in pregnancy. Pregnancy and childbirth are also burdensome to health, mobility, independence, and sometimes to life itself, and women are profoundly disadvantaged in that they alone bear these burdens.")
29. See Anne Alstott, Private Tragedies? Family Law as Social Insurance, HARV. L. & POL'Y REV. 3 (2010)
30. I have not found in-depth studies of support patterns among unmarried lovers, but the 1960 novel The L-Shaped Room provides one beautifully subtle rendering of the complex and layered emotions involved. See LYNNE REID BANKS, THE L-SHAPED ROOM 240 (1960) ("'What's your trouble, my lad?'" the heroine asks the stirring in her womb after meeting Terry, the man with whom she conceived, for the first time since their affair. "'Should I have taken the money he wanted to give us? Why not? you ask. A good question.' Well, why not? He hadn't offered it out of a sense of duty. Or had he? I didn't much care. What mattered was that I hadn't wanted it ... . 'It would have given him some claim on you,' I said to the bump under my hand, 'and such claims can't be bought with money.' But I knew that wasn't the only reason. I looked at the stove, snarling like the part of me that had wanted Terry to see all this-the five long flights, the darkness, the smell, the landing taps; I had wanted to punish him. But that feeling had gone-so quickly. I drew back my lips and snapped my teeth happily at the stove. I felt pleased with myself. It would have been so easy to hate Terry, to take advantage of his vulnerable position; it would have been so easy to take the money, and to justify taking it. I wasn't pleased because I'd resisted the temptation to take it. I was pleased because I hadn't wanted it.")
31. See Chien-Chung Huang & Wen-Jui Han, Child Support Enforcement and Sexual Activity of Male Adolescents, 69 J. MARRIAGE & FAM. 763 (2007); Chien-Chung Huang & Wen-Jui Han, Perceptions of Child Support and Sexual Activity of Adolescent Males, 27 J. ADOLESCENCE 731 (2004)
32. A recent study suggests that child support enforcement decreases the incidence of abortion. See Jocelyn Elise Crowley, Radha Jagannathan & Galo Falchettore, The Effect of Child Support Enforcement on Abortion in the United States 22-23 (unpublished manuscript) (on file with author). For data on the higher incidence of abortion among poor women, see HEATHER D. BOONSTRA ET AL., GUTTMACHER INST., ABORTION IN WOMEN'S LIVES 20 (2006), available at http://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf ("The abortion rate among women living below the federal poverty level ... is more than four times that of women living above 300% of the poverty level ... ."); and Annie Murphy Paul, Is the Recession Causing More Abortions?, SLATE (May 15, 2009), http://www.doublex.com/ section/health-science/recession-causing-more-abortions
33. See JENNIFER J. FROST, JACQUELINE E. DARROCH & LISA REMEZ, GUTTMACHER INST., IMPROVING CONTRACEPTIVE USE IN THE UNITED STATES 1 (2008), available at http:// www.guttmacher.org/pubs/2008/05/09/ImprovingContraceptiveUse.pdf ("Slightly more than half of unintended pregnancies occur among women who were not using any method of contraception in the month they conceived, and more than four in 10 occur among women who used their method inconsistently or incorrectly. Only one in 20 are attributable to method failure."); EILEEN L. MCDONAGH, BREAKING THE ABORTION DEADLOCK: FROM CHOICE TO CONSENT 51-53 (1996)
34. See ARTHUR B. SHOSTAK & GARY MCLOUTH, MEN AND ABORTION: LESSONS, LOSSES, AND LOVE 5 (1984) (finding that eight-five percent of sociological research on abortion "dealt with women, or the fetus, or the state, etc.-anything except the men involved"); Reich & Brindis, supra note 1, at 134 ("Some research has been conducted regarding the perceptions of men's roles in contraception, reproduction, or pregnancy in general, but far less research has been conducted in the area of men's experiences with abortion." (citations omitted))
35. One study of unmarried parents in Oakland, California, revealed that most unmarried parents were romantically involved when their child was born and that about half were living together. SARAH MCLANAHAN ET AL., PUB. POLICY INST. OF CAL., FRAGILE FAMILIES ONE YEAR LATER: OAKLAND, CALIFORNIA 7 (2002), available at http://www.ppic.org/ content/pubs/op/op_1002smop.pdf. Approximately eighty percent of the mothers in the survey "reported that the father had contributed financial support or helped in other ways (such as providing transportation) during the pregnancy." Id. at 10; see also MAUREEN R.WALLER, MY BABY'S FATHER: UNMARRIED PARENTS AND PATERNAL RESPONSIBILITY 2-3 (2002) ("Approximately 33 percent of all births in the United States now occur to unmarried parents ... . [and] about half of these parents are living together at the time of their child's birth."). Another survey of men in abortion clinic waiting rooms revealed that most paid for all or some of the procedure. See SHOSTAK & MCLOUTH, supra note 34, at 36. Note, however, that data on how many men accompany their partner to the clinic are contradictory. Compare Reich & Brindis, supra note 1, at 135 ("One recent study found that only 22-25% of women came or left the abortion procedure with the man by whom they became pregnant." (citing Britta Beenhakker et al., Are Partners Available for Post-Abortion Contraceptive Counseling? A Pilot Study in a Baltimore City Clinic, 69 CONTRACEPTION 419 (2004))), with SHOSTAK &MCLOUTH, supra note 34, at 17 n.1 (finding that men accompanied their partners to abortion clinics approximately half of the time)
36. See Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 2 (1988)
37. West casts this opposition in gendered terms. In her view, the separation bias is inherently male, while connection is inherently female. Women, unlike men, "are not essentially, necessarily, inevitably ... separate from other human beings ... [W]oman [sic] are 'essentially connected' ... ." Id. at 2-3. West locates women's essential connectedness in their "critical material experiences," including pregnancy and breastfeeding. Id. at 3; see also Robin L. West, The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory, 15 WIS.WOMEN'S L.J. 149, 210 (2000). I do not know whether separation is essentially masculine or connection is essentially feminine, but I do believe that the ultimate conclusion West draws from these categories is crucial to the knot we are trying to unravel. Her most compelling insight is that connectedness expresses an important, undervalued truth that is critical to the happiness of both men and women. Though she emphasizes the differences between the sexes, West also thinks that both men and women are animated by both connection and separation. It is the tension between the two, she says, that is essential to our nature. See West, supra note 36, at 15-19
38. See infra notes 50-54 and accompanying text
39. Supporting and encouraging pregnancy support should be especially popular among those dedicated to responsible fatherhood initiatives. See Senator Barack Obama, Remarks at the Apostolic Church of God (June 15, 2008) (transcript available at http://my.barackobama.com/page/community/post/stateupdates/gG5nFK) ("We need fathers to realize that responsibility does not end at conception."); White House Launches Fatherhood Initiative, NPR (Aug. 11, 2009), http://www.npr.org/templates/story/story.php? storyId=111770004 ("Obama's faith-based office will go around the country holding town hall meetings to discuss the importance of fatherhood and speak with community organizations about what policies best work to build strong families.")
40. For a discussion and critique of the channeling function of marriage, see Appleton, supra note 2, at 276-85
41. 798 N.E.2d 941, 995 (Mass. 2003) (Cordy, J., dissenting); see also id. at 969 (majority opinion) (holding that a bar against same-sex marriage violated the state's constitution)
42. Id note note. at 995 (Cordy, J., dissenting)
43. See Kerry Abrams & Peter Brooks, Marriage as a Message: Same-Sex Couples and the Rhetoric of Accidental Procreation, 21 YALE J.L. & HUMAN. 1, 3-4 (2009) (surveying and critiquing the widespread influence of Justice Cordy's decision)
44. Note however that economically dependent spouses generally have few mechanisms for enforcing their entitlements during marriage. Spouses' economic rights generally vest at divorce. For a discussion of spouses' limited economic rights during an ongoing marriage, see Alicia Brokars Kelly, Money Matters in Marriage: Unmasking Interdependence in Ongoing Spousal Economic Relations, 47 U. LOUISVILLE L. REV. 113 (2008-2009). See also Katharine Silbaugh, Turning Labor into Love: Housework and the Law, 91 NW. U. L. REV. 1, 34 (1996) (explaining that spouses' duty of mutual support is "not directly enforceable between the parties when married" but "may be enforceable during a marriage only by third party creditors who may sue one spouse for certain very narrow categories of debts undertaken by the other"). Even at divorce, while property distribution determinations may take childcare contributions into account, they do not look at pregnancy and the "labor" of childbirth for purposes of determining spouses' contributions to the marriage
45. Contrary to popular belief, Congress did not create the "marriage bonus" in order to promote marriage. Nevertheless, politicians and activists have grown to defend it as though Congress did. See Shari Motro, A New "I Do": Towards a Marriage-Neutral Income Tax, 91 IOWA L. REV. 1509, 1529 (2006) [hereinafter Motro, A New "I Do"]. For discussion of tax and other marriage-based benefits, see Appleton, supra note 2, at 273 ("By licensing marriage and attaching to it material and status-based benefits, the state singles out the favored, 'legitimate' site for sexual activity, and clearly communicates its preference for monogamy ... ." (footnote omitted)); Tara Siegel Bernard & Ron Lieber, The Costs of Being a Gay Couple Run Higher, N.Y. TIMES, Oct. 3, 2009, at A1; and Shari Motro, Op-Ed., The State of the Unions; Single and Paying for It, N.Y. TIMES, Jan. 25, 2004, § 4, at 15
46. In fact, as Kerry Abrams and Peter Brooks argue, rather than guaranteeing all pregnant women a minimal level of support, marriage limited men's responsibility to just one of their companions. "In the English legal tradition," they write, "[m]arriage ... functioned not as a check on the wildness of male heterosexuality but as a way for men to maintain sexual freedom without adverse financial consequences ... ." Abrams & Brooks, supra note 43, at 9. Marriage obviously provided no protections to mistresses, prostitutes, or slaves. See Larson, supra note 5, at 389-90 ("[Victorian] conventions of female sexual modesty protected 'respectable' women only at the expense of prostitutes, enslaved women, and domestic servants, against whom male sexual interest was redirected."); see also STEPHANIE COONTZ, MARRIAGE, A HISTORY 35 (2005) ("The story that marriage was invented for the protection of women is still the most widespread myth about the origins of marriage."); id. at 31 ("Probably the single most important function of marriage through most of history ... was its role in establishing cooperative relationships between families and communities."); id. at 34-49 (discussing the invention of marriage); NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION 16 (2000) ("As an intentional and harmonious juncture of individuals for mutual protection, economic advantage, and common interest, the marriage bond resembled the social contract that produced government."). For a summary of judicial critiques of the theory, see Courtney Megan Cahill, The Genuine Article: A Subversive Economic Perspective on the Law's Procreationist Vision of Marriage, 64 WASH. & LEE L. REV. 393, 410-12 (2007); and Law, supra note 28, at 957-58
47. See Naomi Cahn & June Carbone, Red Families v. Blue Families 60 (George Washington Univ. Law Sch. Pub. Law & Legal Theory, Working Paper No. 343, 2007), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1008544 ("Social science research ... suggests that well over 90% of all adults engage in sex before they marry ... ."). As Cahn and Carbone show, the main cultural divide in America today seems to be not between unmarried youth who abstain and those who are sexually active. Rather, the main division is in how people tend to handle an unplanned pregnancy. Conservatives tend toward the "shotgun wedding" while liberals are more likely to terminate the pregnancy. The unintended pregnancy rate is highest among young unmarried women. See Stanley K. Henshaw, Unintended Pregnancy in the United States, 30 FAM. PLAN. PERSP. 24, 27 (1998); Melinda Beck, The Birth-Control Riddle, WALL ST. J., Apr. 20, 2010, at D1 ("One out of every two American women aged 15 to 44 has at least one unplanned pregnancy in her lifetime. Among unmarried women in their 20s, seven out of 10 pregnancies are unplanned."); see also Rob Stein, Rise in Teenage Pregnancy Rate Spurs New Debate on Arresting It, WASH. POST, Jan. 26, 2010, at A4
48. See LAUREN F.WINNER, REAL SEX: THE NAKED TRUTH ABOUT CHASTITY 17 (2005) ("In 2001, a study of 6,800 students showed that virgins who took the [True Love Waits abstinence] pledge were likely to abstain from sex for eighteen months longer than those who did not take the pledge. This ... means simply that a lot of abstinence pledgers are having sex at nineteen instead of eighteen."); Heather D. Boonstra, Advocates Call for a New Approach After the Era of "Abstinence-Only" Sex Education, GUTTMACHER POL'Y REV., Winter 2009, at 6, 8
49. WINNER, supra note 48, at 17. More broadly, rather than functioning as an insurance policy against unintended procreation, marriage is more commonly the form of choice for couples who intend to conceive. "Many people today marry," write Kerry Abrams and Peter Brooks, once they think they have found the person they want to procreate with, not because they have decided to have sex for the first time and want to insure themselves against "accidents," but because they have been (irresponsibly?) engaging in sex for quite some time and only now are ready to settle down and have a child. Abrams & Brooks, supra note 43, at 32
50. The scope of this Article is limited to unmarried conception, but the treatment of pregnancy in marriage and divorce law, while better, is also lacking
51. Cahn & Carbone, supra note 47, at 60; see also id. at 26 ("[D]ivorce risk ... increases with younger age of marriage, lower economic status, and having a baby either prior to marriage or within the first seven months after marriage. Accordingly, family strategies that either emphasize marrying young, or marriage as the solution to an improvident pregnancy are likely to increase rates of divorce, all other things being equal." (footnote omitted))
52. See id. at 59 ("[M]arriage at younger ages is a risky enterprise. It has historically required a high degree of community-reinforced socialization into marital roles-including stereotypical gender roles, male financial contributions and female dependence-to succeed. New research emphasizes that full emotional maturity does not occur until the mid-twenties, and the less than fully mature early twenties brain (especially if male) is primed for risktaking and sexual experimentation. At the same time, the modern economy provides fewer opportunities for the men who are ready to start families in their early twenties to move into productive employment." (footnotes omitted)); see also HIRSHMAN & LARSON, supra note 5, at 276 ("Rather than try to force sexual actors into marriage, we choose to modify the anarchic state of nature that characterizes nonmarital sexual bargaining."). But see Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U. CHI. LEGAL F. 225, 235 (noting that "even broken marriages provide financial and relationship benefits for dependent family members")
53. See JEANNIE SUK, AT HOME IN THE LAW 13-16 (2009) (discussing the marital home as a site of violence, the limitations of available legal remedies, and the difficulties women face in leaving abusive marriages)
54. See ANN CRITTENDEN, THE PRICE OF MOTHERHOOD 149-61 (2001); MARTHA ALBERTSON FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TWENTIETH CENTURY TRAGEDIES (1995); Appleton, supra note 2, at 296-97 (describing family law's failure to deliver on the presumed promises of marriage)
55. For a broader argument that family law should recognize and support friendships that do not resemble marriage or marriage-like relationships, see Laura A. Rosenbury, Friends with Benefits?, 106 MICH. L. REV. 189 (2007)
56. See generally FINEMAN, supra note 54. For related arguments, see Alstott, supra note 29, at 6 (showing "how family law operates-despite its traditional private-law label- as social insurance for affective life" and asking "whether public programs ought to address, more explicitly, the consequences of risks traditionally covered by family law-risks of divorce, nonmarriage, parenthood, and childhood"); and Appleton, supra note 2, at 274-76 (critiquing family law's sex-centricity)
57. Martha Albertson Fineman, Why Marriage?, 9 VA. J. SOC. POL'Y & L. 239, 269 (2001)
58. See Martha Albertson Fineman, Essay, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 YALE J.L. & FEMINISM 1, 8 (2008) ("I want to claim the term 'vulnerable' for its potential in describing a universal, inevitable, enduring aspect of the human condition that must be at the heart of our concept of social and state responsibility."); id. at 12 ("The vulnerable subject approach does what the one-dimensional liberal subject approach cannot: it embodies the fact that human reality encompasses a wide range of differing and interdependent abilities over the span of a lifetime. The vulnerability approach recognizes that individuals are anchored at each end of their lives by dependency and the absence of capacity.")
59. See FINEMAN, supra note 54, at 162-63 ("Women, wives, mothers, daughters, daughters-in-law, sisters are typically the socially and culturally assigned caretakers. As caretakers they are tied into intimate relationships with their dependents. The very process of assuming caretaking responsibilities creates dependency in the caretaker-she needs some social structure to provide the means to care for others.")
60. Fineman, supra note 57, at 270
61. West, supra note 37, at 210
62. Fineman, supra note 57, at 269
63. Id note note. at 270
64. See id. at 243
65. Id note note. at 268; see also FINEMAN, supra note 54, at 226 ("In our individualistic society, the state relies on the family-allocating to it the care and protection of society's weaker members and the production and education of its future citizens.")
66. See Fineman, supra note 57, at 241 ("Except in extreme situations, there are no legal enforcement mechanisms to ensure compliance with standards of conduct imposed generally across marriages. The result might be characterized as creating a vacuum of legally mandated meaning for marriage-a vacuum that is to be filled with various non-legal, sometimes conflicting, individual aspirations, expectations, fears, and longings." (footnote omitted))
67. See id. at 247 ("[M]arriage has not been a neutral social, cultural, or legal institution. It has shaped the aspirations and experiences of women and men in ways that have historically disadvantaged women." (footnote omitted))
68. See id. at 246 ("Marriage, as the preferred societal solution, has become the problem. The very existence of this institution eclipses discussion and debate about the problems of dependency and allows us to avoid confronting the difficulty of making the transformations necessary to address these problems.")
69. See id
70. Id note note. at 268
71. See PAUL, supra note 25, at 155 ("Increased rates of premature delivery and low birth weight among babies born to depressed pregnant women have been firmly established by research. Now scientists are exploring a startling but still speculative notion: that a pregnant woman's emotional state can influence the fetus's developing brain and nervous system, potentially shaping the way the offspring will experience and manage its own emotions- a kind of maternal impressions redux.")
72. See id. at 210 ("In recent years, [Douglas] Almond notes, early-life health measures of blacks have stagnated; black infants are two and a half times more likely to have low birth weight as white infants, and are more than twice as likely to die before age one. Given the potentially lasting effects of prenatal experience, Almond warns, it may be the case that 'a future of racial inequality is being programmed.'")
73. FINEMAN, supra note 54, at 228
74. Fineman, supra note 57, at 245
75. Id note note. at 271 (footnotes omitted)
76. FINEMAN, supra note 54, at 232
77. See Rachel Benson Gold, Recession Taking Its Toll: Family Planning Safety Net Stretched Thin as Service Demand Increases, GUTTMACHER POL'Y REV., Winter 2010, at 8, 11-12 (examining the recession's harsh impact on women of reproductive age and acknowledging that many women, even before the recession, were uninsured without sufficient public support for family planning). Indeed, even California, a state once touted for its "landmark healthcare programs," has proposed limiting the state's Medicaid program for pregnant women by reducing eligibility requirements from 200% to 133% of the poverty level. See Tom Eley, U.S. States Slash Medicaid, GLOBAL RES. (Feb. 22, 2010), http://www.globalresearch.ca/index.php?context=va&aid=17743; see also Shane Goldmacher & Evan Halper, Schwarzenegger's Revised Budget Plan Is Expected to Eliminate Health Programs, L.A. TIMES, May 13, 2010, at AA1
78. Since 1976, Congress has passed various versions of legislation known as the Hyde Amendment, which prohibits the use of federal funding to pay for abortions except when a mother's life is in danger, or in the case of rape or incest. Act of Sept. 30, 1976, Pub. L. No. 94-439, § 209, 90 Stat. 1418, 1434. Although abortion remains legally permissible, the Hyde Amendment makes it difficult for women without independent resources to obtain one. See Heather Boonstra & Adam Sonfield, Rights Without Access: Revisiting Public Funding of Abortion for Poor Women, GUTTMACHER REP. ON PUB. POL'Y, Apr. 2000, at 8, 10 ("[R]estrictions on funding have considerable impact on women's reproductive decisions... . [P]regnancies that would have otherwise been aborted are instead carried to term... . [W]omen who are able to raise the money needed for an abortion do so at a great sacrifice to themselves and their families."); Lawrence B. Finer & Stanley K. Henshaw, Disparities in Rates of Unintended Pregnancy in the United States, 1994 and 2001, 38 PERSP. ON SEXUAL & REPROD. HEALTH 90, 95 (2006) (noting that even though indigent women are two times as likely not to have health insurance, "the only federal stream of dollars dedicated to family planning services for low-income women[] declined between 1994 and 2001"); GUTTMACHER INST., FACTS ON INDUCED ABORTION IN THE UNITED STATES 2 (2011), http://www.guttmacher.org/pubs/fb_induced_abortion.pdf ("About 20% of abortion patients report using Medicaid to pay for abortions (virtually all in states where abortion services are paid for with state dollars)."); NAT'L ABORTION FED'N, PUBLIC FUNDING FOR ABORTION: MEDICAID AND THE HYDE AMENDMENT 2 (2006), http://prochoice.org/pubs_research/ publications/downloads/about_abortion/public_funding.pdf ("Barriers to abortion access such as the lack of providers, state laws delaying women from receiving timely care, and funding restrictions like the Hyde Amendment fall disproportionately on low-income women who have limited resources with which to overcome these obstacles.")
79. See The New Health Care Reform Legislation: Pros and Cons for Reproductive Health, supra note 23 (stating that the "16 million more Americans to join Medicaid by 2019 [under the health care reform will] ... . receive the program's guarantee of family planning services without cost sharing, along with coverage for its comprehensive package of reproductive health services beyond family planning")
80. I also support retracting these privileges from economically independent spouses. See infra note 188
81. The Oxford English Dictionary traces the term back to the late 1970s, linking it with the California Supreme Court landmark case Marvin v. Marvin, which recognized support rights arising from a cohabitation relationship. See 557 P.2d 106 (Cal. 1976); Palimony Definition, OED.COM, http://oed.com/view/Entry/136318 (last visited Jan. 6, 2010)
82. Most jurisdictions that recognize domestic partners as forming a legally significant relationship follow the contractual approach introduced in Marvin v. Marvin. Under this approach, divorce-type property distribution rules apply to separating domestic partners who have explicitly agreed to formalize their union in a marriage-like relationship
83. See Scott, supra note 52, at 258; Shahar Lifshitz, Married Against Their Will 11- 13 (Bar-Ilan Univ. Pub. Law & Legal Theory Working Paper Series, Paper No. 06-09, 2009), available at http://ssrn.com/abstract=1352043
84. A minority of jurisdictions and the American Law Institute's Principles of Family Dissolution reject the contractual approach in favor of a status-based solution. Contract is seen as a poor vehicle for regulating intimate relations for two main reasons. First, as ALI chief reporter Ira Ellman put it, "people do not think of their intimate relationships in contract terms." Ira Mark Ellman, "Contract Thinking" Was Marvin's Fatal Flaw, 76 NOTRE DAME L. REV. 1365, 1373 (2001). Second, the contract rubric fails to address the equitable claims of abandoned partners where no implied agreement can be reasonably inferred. Id. at 1372 & n.39
85. Fineman uses this term "to emphasize that our societal and legal images and expectations of family are tenaciously organized around a sexual affiliation between a man and a woman." FINEMAN, supra note 54, at 143
86. Fineman, supra note 57, at 245
87. As I have argued elsewhere, I also believe that horizontal relationships between adults who do not share a dependent, but who share their resources, should be recognized under a separate rubric. See Motro, A New "I Do," supra note 45
88. AM. LAW INST., supra note 13, § 5.02 cmt. a, at 789
89. For further discussion of justifications for alimony, see DOUGLAS E. ABRAMS ET AL., CONTEMPORARY FAMILY LAW 548-52 (2006); and KATHARINE K. BAKER & KATHARINE B. SILBAUGH, FAMILY LAW 135-46 (2009)
90. I credit Susan Appleton for this insight
91. See Motro, supra note 8
92. The number of abortions falls as the expectation that men will have to pay child support rises because women are "encouraged by the potential economic security that the father may provide." Crowley, Jagannathan & Falchettore, supra note 32, at 22. A similar dynamic may lead pregnant women who are considering an abortion because they are worried about loss of income due to their pregnancy to take the pregnancy to term once they know additional preglimony support will be coming
93. For a discussion of the negative effects of the current child support paradigm on never-married poor fathers, see Solangel Maldonado, Deadbeat or Deadbroke: Redefining Child Support for Poor Fathers, 39 U.C. DAVIS L. REV. 991 (2006)
94. See Kim Shayo Buchanan, Lawrence v. Geduldig: Regulating Women's Sexuality, 56 EMORY L.J. 1235, 1245 (2007); John Tierney, Op-Ed., Men's Abortion Rights, N.Y. TIMES, Jan. 10, 2006, at A25; Sherry F. Colb, Should Men Have the Right to a "Financial Abortion"? A Biological Father Cries Sex Discrimination When Forced to Pay Child Support for an Unwanted Baby, FINDLAW (Mar. 21, 2006), http://writ.news.findlaw .com/colb/20060321.html; Stephanie Fairyington, The Parent Trap: Paternal Rights and Abortion, ELLE.COM (May 17, 2010), http://www.elle.com/Life-Love/Society-Career-Power/ The-Parent-Trap-Paternal-Rights-and-Abortion. For New York Times readers' comments on the issue, see Readers' Comments to A Father's Reproductive Rights: What Happens When a Man Makes His Intentions Clear Before a Child Is Conceived or Born?, N.Y. TIMES MOTHERLODE BLOG, http://community.nytimes.com/comments/parenting.blogs.nytimes .com/2010/05/17/a-fathers-reproductive-rights/ (last visited Aug. 15, 2010). Many commenters assert that a man should have no right to prevent a women from having an abortion and should be required to pay child support for a child he does not want, while some argue a man's opposition to a woman's decision to take a pregnancy to term should exempt him from having to pay child support
95. Anne M. Payne, Annotation, Parent's Child Support Liability as Affected by Other Parent's Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control, or Refusal to Abort Pregnancy, 2 A.L.R. 5th 337, 348 (1992) ("To date, the courts have refused to deem a woman's decision to bear a child despite the objections of the child's father, even where he has offered to pay for an abortion, to create an unconstitutional infringement on the father's federal or state equal protection or due process rights." (citation omitted))
96. Some "65 percent of unmarried fathers have incomes below $20,000, with about 19 percent reporting incomes below $5,000." WALLER, supra note 35, at 49
97. See supra Part II.B
98. I limit the scope of this Article to the income tax consequences of pregnancyrelated transfers and disregard any gift tax implication because in most cases the transfers either fall below the yearly gift tax exclusion amount ($13,000 for 2010) or include payments for medical care which, if paid directly to the provider, are exempted from gift taxes
99. Comm'r v. Glenshaw Glass Co., 348 U.S. 426, 431 (1955). The normative base for the Glenshaw formulation and for the current tax system is the Haig-Simons definition of income as the sum of consumption and savings. See HENRY C. SIMONS, PERSONAL INCOME TAXATION: THE DEFINITION OF INCOME AS A PROBLEM OF FISCAL POLICY 50 (1938)
100. See 26 U.S.C. § 262(a) (2006)
101. If the woman qualifies as the man's dependent, the tax system provides several benefits. Section 213(a) gives the payor a deduction for certain medical expenses paid on behalf of a dependent, § 151 provides a personal exemption for dependents, and § 21 provides a credit for the costs of household and dependent care services if the dependent is incapable of caring for herself. (The credit is available if the services procured are necessary for the supporting taxpayer's gainful employment. Thus, an employed man whose pregnant domestic partner is confined to bed rest can receive a credit for hiring a nurse on her behalf.) For a more detailed list of tax benefits available to taxpayers providing for a dependent, see Theodore P. Seto, The Unintended Tax Advantages of Gay Marriage, 65 WASH. & LEE L. REV. 1529, 1543 n.35 (2008). See also 26 U.S.C. § 223 (allowing a deduction for amounts paid into a health savings account on behalf of a dependent)
102. See 26 U.S.C. § 102
103. See id. §§ 61(a)(1), 162
104. See id. §§ 61(a)(1), 262
105. See id. § 170
106. See Comm'r v. Culbertson, 337 U.S. 733, 739-40 (1949); Helvering v. Eubank, 311 U.S. 122, 124-25 (1940); Lucas v. Earl, 281 U.S. 111, 114-15 (1930)
107. See Helvering v. Horst, 311 U.S. 112, 117-20 (1940); Blair v. Comm'r, 300 U.S. 5, 12-14 (1937)
108. See generally 3 BORIS I. BITTKER & LAWRENCE LOKKEN, FEDERAL TAXATION OF INCOME, ESTATES AND GIFTS ¶ 75.2 (2d ed. 1991)
109. Earl, 281 U.S. at 115. For a critique of the fruit-and-the-tree metaphor, see Patricia A. Cain, The Story of Earl: How Echoes (and Metaphors) from the Past Continue to Shape the Assignment of Income Doctrine, in TAX STORIES: AN IN-DEPTH LOOK AT TEN LEADING FEDERAL INCOME TAX CASES 275, 276-79 (Paul L. Caron ed., 2003)
110. For a more detailed discussion of the way in which the rate structure produces a marriage bonus for unequal earners and a marriage penalty for equal earners, see EDWARD J. MCCAFFERY, TAXING WOMEN 12-19 (1997); and Motro, A New "I Do," supra note 45, at 1560-68
111. The joint return reduces their overall tax liability because with a progressive rate structure, the tax on two people earning $50,000 is less than the tax on one person earning $100,000
112. See 26 U.S.C. §§ 71, 215 (2006). The deduction/inclusion of alimony is the default treatment, but taxpayers may elect to designate payments as nondeductible to the payor and excludible by the recipient. Id. § 71(a), (b)(1)(B)
113. Bittker and Lokken explain that the underlying theory for this rule is that "child support payments do not reflect a diversion [of] income from one spouse to the other because they are not for the payee's benefit." 3 BITTKER & LOKKEN, supra note 109, ¶ 77.1.7; see also Knight v. Comm'r, 64 T.C.M. (CCH) 1519, 1523 (1992) (explaining that the child support a man pays to the mother of his child "goes toward the support of their children, not for her benefit or enjoyment as is the case of alimony" and that "personal, living, and family expenses (including the cost of supporting one's child) are not deductible by any taxpayer" (citing 26 U.S.C. § 262 (1988))). But see infra note 156 and accompanying text
114. The IRS has also been silent regarding the broader issue of other support payments between unmarried couples either during the partnership or after dissolution. See Patricia A. Cain, Taxing Families Fairly, 48 SANTA CLARA L. REV. 805, 829 (2008). This Article addresses only income tax issues. Gift tax issues arise only with respect to payments that exceed $13,000, the annual gift tax exclusion amount for 2010. 26 U.S.C. § 2503(b)(1) (2006); Rev. Proc. 2009-50, 2009-45 I.R.B
115. For many unmarried lovers who conceive, this means the only relevant question concerns income tax treatment
116. See 26 U.S.C. § 71(c); Knight, 64 T.C.M. (CCH) at 1523 ("[C]hild support payments are neither deductible by the payor nor taxable to the recipient... . [N]o parent may deduct the cost of supporting his or her child; no distinction is made between parents who are married or unmarried, parents who are married to each other or to others, or parents having or not having custody of the child."). In the surrogate motherhood context, some attorneys advise surrogates not to include payments they receive from the intended fathers under the theory that these payments are child support. On the other hand, some scholars argue these payments are compensation. See Bridget J. Crawford, Taxation, Pregnancy, and Privacy, 16 WM. &MARY J.WOMEN & L. 327, 343-45 (2010); Bridget J. Crawford, Taxing Surrogacy, in CHALLENGING GENDER INEQUALITY IN FISCAL POLICY MAKING: COMPARATIVE RESEARCH ON TAXATION (Åsa Gunnarsonn et al. eds., forthcoming May 2011) (manuscript at 2), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1422180
117. See United States v. Mitchell, 403 U.S. 190, 194-96 (1971); Poe v. Seaborn, 282 U.S. 101, 110 (1930); see also Cain, supra note 115, at 838-39
118. See Kilpatrick v. Comm'r, 68 T.C. 469, 472-73 (1977). Kilpatrick deals with whether adoptive parents were allowed to deduct the expenses incurred for medical services rendered to their son's natural mother under 26 U.S.C. § 213, which provides a deduction for certain medical care expenses incurred on behalf of a taxpayer's dependent. The court ac herknowledged that "medical care rendered to an expectant mother may, under certain circumstances, constitute medical care rendered to her child." 68 T.C. at 472 (emphasis added). "Prior to the child's birth," the court explains, "the health of the mother is so intimately connected with the health of the child that to say a service rendered to one could never be a service rendered to the other belies believability." Id. at 472-73. However, the court placed the burden on the adoptive parents seeking to take the deduction to prove that "the expenses in question were directly or proximately related to the 'diagnosis, cure, mitigation, treatment, or prevention of disease' in the unborn child." Id. at 473 (quoting Havey v. Comm'r, 12 T.C. 409, 412 (1949)). In the absence of such proof, it held the entire amount to be a nondeductible personal expense. Id.; see also Hornish v. Comm'r, 37 T.C.M. (CCH) 919 (1978) (denying deduction to adoptive parents for failure to prove what portion, if any, of delivery fees constituted medical care for the child)
119. See 26 U.S.C. § 152(c)
120. Cassman v. United States, 31 Fed. Cl. 121, 123-24 (1994). In a brief filed in Magdalin v. Commissioner, 96 T.C.M. (CCH) 491 (2008), aff'd, No. 09-1153, 2009 WL 5557509 (1st Cir. Dec. 17, 2009), Cassman was cited for the proposition that "an unborn child is not a dependent." See Katherine Pratt, Deducting the Costs of Fertility Treatment: Implications of Magdalin v. Commissioner for Opposite-Sex Couples, Gay and Lesbian Same-Sex Couples, and Single Women and Men, 2009 WIS. L. REV. 1283, 1315
121. For examples of situations in which federal income tax treatment does not track state law, see Boyter v. Commissioner, 668 F.2d 1382, 1388 (4th Cir. 1981) (holding that a divorce that is valid under state law may nevertheless be deemed invalid for federal income tax purposes under the sham transaction doctrine); Deborah A. Geier, Simplifying and Rationalizing the Federal Income Tax Law Applicable to Transfers in Divorce, 55 TAX LAW. 363, 363 n.3 (2002) ("[P]ayments subject to the inclusion/deduction scheme [of alimony for federal tax purposes] may not actually constitute 'alimony' under state law, so long as the payment satisfies the federal tax definition of 'alimony' in section 71(b)."); and Deborah H. Schenk, Simplification for Individual Taxpayers: Problems and Proposals, 45 TAX L. REV. 121, 135 (1989) ("[T]he Code provides a special federal definition of an abandoned spouse so that a taxpayer who is married for state law purposes may be single for federal purposes.")
122. See supra note 20
123. 363 U.S. 278, 285 (1960) (quoting Comm'r v. LoBue, 351 U.S. 243, 246 (1956))
124. Id note note. (quoting Robertson v. United States, 343 U.S. 711, 714 (1952))
125. Id note note. ("[I]f the payment proceeds primarily from 'the constraining force of any moral or legal duty' ... it is not a gift." (quoting Bogardus v. Comm'r, 302 U.S. 34, 41 (1937)))
126. Id note note. (quoting Bogardus, 302 U.S. at 41)
127. See 1 BITTKER & LOKKEN, supra note 109, ¶ 10.2.7 (surveying case law classifying "[t]ransfers of cash and property by a taxpayer to a companion or sexual partner ... as taxfree gifts or taxable compensation, depending on whether the recipient appears to be a beneficiary of generosity or a purveyor of services")
128. Section 61 of the Internal Revenue Code clearly provides that "[e]xcept as otherwise provided ... gross income means all income from whatever source derived." 26 U.S.C. § 61(a) (2006); see also supra note 99
129. Indeed, some theorists believe this is the correct treatment of all gifts, but their approach has not held sway. See, e.g., SIMONS, supra note 99, at 56-58, 125-28
130. But see Wendy Gerzog Shaller, On Public Policy Grounds, a Limited Tax Credit for Child Support and Alimony, 11 AM. J. TAX POL'Y 321, 329 (1994) ("Taxing the payment to both the payor and the payee is exactly what happens when ... personal liabilities [other than alimony] are paid. When money changes hands between taxpayers and there is no gift involved, ordinarily the money is taxed to each successive taxpayer who has been enriched.")
131. 1 BITTKER & LOKKEN, supra note 109, ¶ 10.2
132. For arguments in favor of treating alimony as nondeductible to the payor and includible by the recipient, see Geier, supra note 121, at 368 ("[I]f we view the matter from the recipient's side alone, and if alimony is considered within the Glenshaw Glass notion of 'income' as an undeniable accession to wealth, etc., then it would be includable by the recipient. At the same time, the payor earning wages from which the alimony was paid would have to include the wages in gross income, since compensation for services rendered is specifically listed as 'income' in section 61(a)(1). Moreover, the payor would arguably be denied a deduction for the payment under a strict definition of 'income' in the familiar Schanz- Haig-Simons sense, under which only outlays incurred to produce includable income are properly deductible (with personal consumption outlays being nondeductible, and thus taxed)."); and id. at 430
133. For a discussion of why alimony is not taxed twice (i.e., to both payor and recipient), see id. at 368-71
134. To remedy this result a new credit or deduction for pregnant spouses might be introduced, but for simplicity I will bracket this alternative and assume the current tax treatment of spouses as a given. A deduction/exclusion would also be inconsistent with the current charitable contributions framework, which permits a deduction only for gifts to eligible charitable entities, not to individuals. 26 U.S.C. § 170(a), (c) (2006)
135. See supra notes 128-31 and accompanying text
136. See supra notes 111-12 and accompanying text
137. 26 U.S.C. §§ 62(a)(10), 71(a)-(b), 215(a). To qualify for this treatment the payments must be in cash and they must be made pursuant to a divorce or separation instrument. Id. § 71(a)-(b)
138. See MCCAFFERY, supra note 111, at 11-85; Pamela Gann, Abandoning Marital Status as a Factor in Allocating Income Tax Burdens, 59 TEX. L. REV. 1 (1980); Marjorie E. Kornhauser, Love, Money, and the IRS: Family, Income-Sharing, and the Joint Income Tax Return, 45 HASTINGS L.J. 63 (1993); Edward J. McCaffery, Taxation and the Family: A Fresh Look at Behavioral Gender Biases in the Code, 40 UCLA L. REV. 983 (1993); Law rence Zelenak, Doing Something About Marriage Penalties: A Guide for the Perplexed, 54 TAX L. REV. 1, 3 (2000); Lawrence Zelenak, Marriage and the Income Tax, 67 S. CAL. L. REV. 339 (1994) [hereinafter Zelenak, Marriage and Tax]
139. See Motro, A New "I Do," supra note 45
140. See Geier, supra note 121, at 371-72; Gerzog Shaller, supra note 130, at 322
141. See Gerzog Shaller, supra note 130, at 322-23 (noting that since the original enactment of the alimony provision "its repeal, which could be seen as a natural concomitant with the enactment of lower rates, has not been seriously contemplated" (footnote omitted))
142. See Geier, supra note 121, at 396 ("Since divorce frequently strains liquidity to the breaking point anyway, in the view of the Task Force, such a harsh result, i.e., divorce per se pushing incomes into higher brackets, should be avoided, if possible." (quoting AM. BAR ASS'N'S DOMESTIC RELATIONS TAX SIMPLIFICATION TASK FORCE, THE "INCOME-SHIFTING" PRINCIPLE IN PROPOSALS FOR SIMPLIFICATION OF DOMESTIC RELATIONS TAX LAW 5 (1983))); id. at 435 ("Divorce is usually accompanied by financial hardship (and it triples the chances of bankruptcy). Therefore, Congress should avoid adopting what would amount to a mandatory divorce tax 'penalty' in many cases."). Geier makes the related argument that taxing the payments twice would also affirmatively discourage divorce. See id. at 370
143. See id. at 435 ("[A] mandatory exclusion/nondeduction rule would also introduce a disparity between less wealthy couples, where support payments must come from future wages of the payor, and wealthy couples, who could still engage in significant incomeshifting by transferring income-producing assets to the payee to fund support.")
144. See id.; Michael Waggoner, IRC § 71 May Impoverish Children, Endanger Ex- Wives, and Disrupt Federalism, 46 FAM. CT. REV. 574 (2008)
145. See Cain, supra note 115, at 828 ("The underlying principle [for the alimony rule] is that the now-divided family will only be taxed once on the income that is used to support its prior members. This principle is consistent with the notion that the spousal unit is a single economic unit for federal tax purposes."); Geier, supra note 121, at 369-70 ("[T]he ... appropriate way to think about the payment [of alimony is to] ... . view both taxpayers together. In an intact marriage, by analogy, amounts earned by one spouse and paid to another are ignored for tax purposes (i.e., they are neither includable by the recipient nor deductible by the payor) ... . Therefore, the amounts are taxed only once between the two. We could reason that the amounts should continue to be taxed only once, even though the family is no longer intact, because of the clear and direct relationship of the payments to the former legal relationship of the parties (or the continuing legal relationship, in the case of a paternity payment to support a child after a divorce or otherwise outside of marriage)." (footnote omitted)); Gerzog Shaller, supra note 130, at 324 n.15; Laurie L. Malman, Unfinished Reform: The Tax Consequences of Divorce, 61 N.Y.U. L. REV. 363, 392 (1986) ("To the extent that family law continues the former spouses' economic unit through alimony payments, the tax laws should also treat the former spouses as a continuing, single tax unit after divorce."); Schenk, supra note 121, at 164 ("Although the marital relationship ends, the economic relationship does not and thus, the taxation of the earnings should not change.")
146. See Geier, supra note 121, at 370
147. See id. at 396 ("[E]liminating income-shifting would discriminate between well-todo couples with income-producing property, who would effectively be able to continue to engage in income-shifting by transferring such property in satisfaction of support obligations, and less wealthy couples.")
148. But see Kornhauser, supra note 138, at 80 ("The theoretical justification for the joint return-the belief that married couples share resources-is largely unsupported by empirical evidence."); id. at 91 ("[N]either assertions of pooling nor nominal arrangement of assets in a pooling manner accurately reflect the reality of financial arrangements. Behind the facade of sharing is a deep-seated, though often subtle, control of the income by the earner spouse.")
149. See Boris I. Bittker, Federal Income Taxation and the Family, 27 STAN. L. REV. 1389, 1420-22 (1975); Zelenak, Marriage and Tax, supra note 138, at 353 ("If one accepts the premise that the crucial question in determining the appropriate taxable unit is 'Does this person pool his income with another person for the purpose of shared consumption (and savings)?' then requiring joint returns for married couples and separate returns for unmarried persons is an easy-to-administer rule that gets it right most of the time.")
150. See Motro, A New "I Do," supra note 45, at 1541-42 & nn.108-09 (critiquing Henry Smith's proposal for partial income splitting in marriage based on individually determined ratios, Henry E. Smith, Intermediate Filing in Household Taxation, 72 S. CAL. L. REV. 145, 183 (1998))
151. On the equality principle in marriage, see Carolyn J. Frantz & Hanoch Dagan, Properties of Marriage, 104 COLUM. L. REV. 75, 91 (2004) ("People may engage in many joint enterprises where equality is not necessary. Joint owners in a business, for instance, may divide the ownership interest 70-30 without raising any alarm. But it would be perverse to conceive of a marriage of this sort, where one spouse has a recognized controlling interest in the property that partially constitutes the marriage, and, correspondingly, in marital decisions... . Disparity in the control of marital property moves beyond simple inequality- which an individual may rightly choose as a means to other ends-to subordination, which systematically denies the importance of whatever ends that individual chooses. As subordination in marriage is a threat to a spouse's basic personhood, the marital community must be bounded by a commitment to equality.")
152. For persuasive arguments that it should, see Jana B. Singer, Divorce Reform and Gender Justice, 67 N.C. L. REV. 1103, 1117 (1989) (proposing that divorcing couples be required to share income for a set period of time after the divorce); and Joan Williams, Is Coverture Dead? Beyond a New Theory of Alimony, 82 GEO. L.J. 2227, 2260-61 (1994) (arguing for postdivorce income equalization for the duration of children's dependence plus one additional year for every two years of marriage beginning at the date of divorce)
153. Thus, the alimony rule is difficult to defend for reasons that are slightly different from the problem at the heart of marriage-based income splitting. Whereas marriage-based income splitting relies on the questionable presumption that most spouses share income equally, the alimony rule extends a benefit specifically limited to taxpayers who (presumably) share equally to taxpayers who explicitly share unequally
154. See Geier, supra note 121, at 432 ("[T]he parties should be given full power to decide who, between them, should be taxed on all cash transfers incident to divorce."); id. at 411-30; Gerzog Shaller, supra note 130, at 321 ("[T]here are public policy reasons to eliminate the distinctions between them and to allow a limited credit for both types of payments."); Malman, supra note 145, at 379-80; Schenk, supra note 121, at 162 (proposing that child support and alimony should not be differentiated for federal tax purposes to eliminate complexities resulting from the difficulty distinguishing the two); Waggoner, supra note 144; Laura Bigler, Note, A Change Is Needed: The Taxation of Alimony and Child Support, 48 CLEV. ST. L. REV. 361, 361-62 (2000)
155. This argument appears in almost every critique of the current system
156. The theoretical justification for the nondeductibility/exclusion of child support is that supporting one's child is inherently personal; the costs of raising a child are not deductible during marriage, nor should they be after divorce. The problem with this line of reasoning is that it ignores the fundamental difference between the nondeductibility of child raising costs by a married couple and the nondeductibility of child support by an ex-spouse. The former ensures that the underlying income is taxed to the couple rather than escaping taxation altogether; the latter determines that it is taxed to the payor rather than to the recipient. The alternative to nondeductibility of child support is deductibility coupled with inclusion to the recipient, which would be entirely consistent with the treatment of the costs of raising a child during marriage because joint filing during marriage accomplishes (approximately) the same thing as a deduction/inclusion postdivorce. Viewing the couple together, the deduction of child support wouldn't really be a deduction at all, but rather an income-shifting mechanism. For a similar argument, see Geier, supra note 121, at 369-70, 431
157. I do not mean to suggest that policymakers have deliberately or consciously used marriage as a proxy for procreation. The existence of children is, of course, quite easy to determine directly. But marriage may serve as a convenient and comfortable way for us to privilege "responsible procreation" without confronting the prevalence of nonmarital children. On the stigma associated with "irresponsible reproduction," see Linda C. McClain, "Irresponsible" Reproduction, 47 HASTINGS L.J. 339 (1996). Marriage also expresses a view that all spouses, even elderly couples who have never had children, are potentially procreative, which those who see procreation as essential to the human experience may find comforting. As we saw in Part II.A, courts denying same-sex couples' right to marry have often relied on the argument that the main purpose of marriage is to regulate accidental procreation. Another, related argument used in this context focuses not on accidental procreation specifically, but on the essential feature of marriage being procreation more generally. See Adams v. Howerton, 486 F. Supp. 1119, 1124 (C.D. Cal. 1980) ("[T]he main justification in this age for societal recognition and protection of the institution of marriage is procreation, perpetuation of the race."); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971) ("The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis."); Singer v. Hara, 522 P.2d 1187, 1195 (Wash. Ct. App. 1974) ("[M]arriage exists as a protected legal institution primarily because of societal values associated with the propagation of the human race.")
158. It also suggests that income-shifting benefits should not be automatically available to childless spouses and former spouses, but this issue is outside the scope of this Article. As I have argued elsewhere, I believe that joint filing should be limited to taxpayers who are legally committed to sharing income equally regardless of marital status. See Motro, A New "I Do," supra note 45. Taken together, this project and my former work recommend that childless couples be permitted to file jointly only if they are legally committed to sharing income and that co-parents be permitted to shift income through a deduction/inclusion mechanism so long as they are transferring more than a minimal threshold amount
159. Cf. Bigler, supra note 154, at 379 (arguing for extending the deduction/inclusion treatment of alimony to child support payments in order to "encourage 'deadbeat dads' to pay their support obligations")
160. Some commentators may object that the tax code is the wrong vehicle for achieving this symbolic goal because it is the wrong vehicle for social engineering more broadly. This is not the place to revisit debates on the proper role of tax law in setting social norms. It is worth noting, however, that Congress routinely and deliberately uses the tax system to shape economic and social behavior. See Maureen B. Cavanaugh, On the Road to Incoherence: Congress, Economics, and Taxes, 49 UCLA L. REV. 685, 687 (2002) ("[G]overnments generally (and Congress in particular), have frequently used both tax incentives and disincentives in an effort to address important social problems."); Stanley S. Surrey, Tax Incentives as a Device for Implementing Government Policy: A Comparison with Direct Government Expenditures, 83 HARV. L. REV. 705, 705 (1970). Given that tax expend tures have grown from $45 billion in 1968 to tures have grown from $45 billion in 1968 to $1 trillion for fiscal years 2001 to 2005, Stanley Surrey's comments are as true today as they were when he first advocated a strong presumption against their use. For a discussion of the influence of tax law on gender relations in particular, see MCCAFFERY, supra note 111.
161. See infra pp. 696-97
162. Cf. WILLIAM N. ESKRIDGE, JR. & DARREN R. SPEDALE, GAY MARRIAGE: FOR BETTER OR FOR WORSE? (2006) (using Scandinavian countries' experience with gay marriage to suggest that alternatives to traditional heterosexual marriage may bolster rather than undermine the institution)
163. See MCCAFFERY, supra note 111, at 19-23 (discussing the tax system's secondaryearner bias); Nancy C. Staudt, Taxing Housework, 84 GEO. L.J. 1571, 1574 (1996) (examining "the possibility of valuing and taxing nonmarket labor in the same manner as market labor"); see also Silbaugh, supra note 44, at 44-55 (1996) (surveying a variety of ways in which the tax system contributes to the law's failure to value unpaid work)
164. Discussions with Laura Rosenbury and Adam Rosenzweig helped me in identifying and thinking about this issue
165. For a related argument, see CRITTENDEN, supra note 54, at 268 (proposing that the birth or adoption of a child should turn spouses into full economic partners)
166. See supra Part II.B
167. After conception occurs, it is unclear whether and how the deduction/inclusion of preglimony may influence the incidence of abortion. It would apply whether or not the pregnancy is taken to term, but if the existence of the tax benefit and its expressive effects causes men to support a pregnancy taken to term more robustly than they currently do such that the woman receives more in after-tax dollars, this may decrease abortions undertaken because of financial pressures. Cf. Crowley, Jagannathan & Falchettore, supra note 32, at 22-23 (finding that increased child support correlates with fewer abortions)
168. See notes 181-84 and accompanying text for a discussion of whether the payor must be the man with whom the woman conceived
169. Unlike in the alimony context, however, the default would be that preglimony payments are nondeductible to the payor and excludible by the recipient, because the deduction/ inclusion alternative requires formal and deliberate cooperation, which will not always be possible. Additionally, women should be able to keep their pregnancy private if they wish to do so. For an argument that the default rule for alimony should also be nondeductible/ excludible, see Waggoner, supra note 144, at 579
170. For a discussion of the risks to both woman and newborn child when a pregnant woman receives no prenatal care, see MATERNAL & CHILD HEALTH BUREAU, U.S. DEP'T. OF HEALTH & HUMAN SERVS., A HEALTHY START: BEGIN BEFORE BABY'S BORN, available at ftp://ftp.hrsa.gov/mchb/prenatal.pdf ("Babies born to mothers who received no prenatal care are three times more likely to be born at low birth weight, and five times more likely to die, than those whose mothers received prenatal care."); and John L. Kiely & Michael D. Kogan, Prenatal Care, in FROM DATA TO ACTION: CDC'S PUBLIC HEALTH SURVEILLANCE FOR WOMEN, INFANTS, AND CHILDREN 105, 105 (1994), available at http://www.cdc.gov/reproductivehealth/ProductsPubs/DatatoAction/pdf/rhow 8.pdf ("Inadequate use of prenatal care has been associated with increased risks of low-birth-weight births, premature births, neonatal mortality, infant mortality, and maternal mortality." (citation omitted)). But see Cassman v. United States, 31 Fed. Cl. 121, 129 (1994) (Taxpayers are not entitled to a deduction based on conception because, among other reasons, allowing a deduction would "create confusion because of the uncertainty regarding the date whena particular conception occurs?. A live birth [by contrast] ? results in the issuance of a birth certificate, which is a universally accepted and administratively efficient document of identification?. If the court held ? that the dependent exemption was available as of the date of conception, then the exemption would be available for pregnancies that never resulted in live births and the issuance of a birth certificate, including those pregnancies ending in miscarriages, induced abortions, and stillbirths. In the absence of any clear evidence of congressional intent to do otherwise, the court must sparetaxpayers and the I.R.S. the administrative burden of establishing that such pregnancies occurred or did not occur.")
171. See 26 U.S.C. § 71(b)(1)(C) (2006)
172. Susan Appleton and Cheryl Block alerted me to the significance of these distinctions
173. I am not suggesting a similarity to the term "marriage" in Islamic law, which contemplates more robust obligations. See generally SHAHLA HAERI, LAW OF DESIRE: TEMPORARY MARRIAGE IN SHI'I IRAN (1989)
174. For one, requiring itemization would be administratively burdensome. More importantly, the physical, professional, and emotional effects of pregnancy are so diverse that parsing apart pregnancy-related expenses from other expenses would be nearly impossible. Finally, even if it were possible to draw such a distinction, since many of the burdens of pregnancy cannot be ameliorated, payments used toward non-pregnancy-related ends- whether indulgences or investments for the future-should be given the same support and encouragement as payments used for strictly pregnancy-related ends
175. U.S.C. § 71(b)(2)
176. In order to reduce fraud or collusion, in addition to proof of the pregnancy, the payor and recipient might also be required to include with their return a cosigned statement recording their agreement and understanding of the tax consequences to each. I credit Wendy Gerzog for this suggestion
177. The advantage of this requirement is that it would encourage significant support. The disadvantage is that it would provide no incentive for those who are prepared to share significantly but not to the point of fifty-fifty division. It would also subject unmarried partners to a higher sharing standard than we apply to spouses, an incongruous result. Finally, it would create a marriage penalty because the rate schedule for married taxpayers filing jointly approximates but does not replicate "pure" income splitting
178. See Malman, supra note 145, at 398-99 ("Statistics indicate ? that the revenues at stake in the alimony deduction are not large. For example, only 0.6% of all returns filed claimed a deduction for alimony payments. In contrast, 48.3% of all returns filed took advantage of the joint return tables. Moreover, the potential for a significant revenue impact is more hypothetical than real. Although divorced women are generally in lower tax brackets than their male counterparts, studies indicate that cash awards to former spouses are relatively few in number and small in size, and often remain uncollected. Even where substantial annual payments are made, the resulting increase in the recipient's income narrows the difference between the former spouses' marginal tax rates and thus lessens the revenue impact." (footnotes omitted)); see also Waggoner, supra note 144, at 579-80 (concluding that the revenue loss following a reform extending the deduction/inclusion treatment of alimony to child support and lump sum payments is difficult to calculate but, regardless of the cost, in light of the dangers of the current rule to the custodial spouse and the children, "it may be an appropriate area for some federal revenue loss")
179. I credit Wendy Gerzog for this insight, though she would rather the cap apply only to the deduction, not the inclusion amount
180. This is because joint filing approximates but does not quite replicate pure income splitting. See Gerzog Shaller, supra note 130, at 328 (discussing the "divorce bonus"). To prevent the resulting "marriage penalty," the income-shifting benefit derived from the pregnancy- support deduction might be capped at the benefit that would have accrued to the couple were they married
181. See Paternity Testing, AM. PREGNANCY ASS'N, http://www.americanpregnancy .org/prenataltesting/paternitytesting.html (last updated Nov. 2007) ("Prenatal DNA testing done in conjunction with other prenatal testing involves some risk associated with how the testing is conducted, whether amniocentesis or CVS. These tests are often discouraged for the sole reason of seeking paternity because of the increased miscarriage risks."). The cost of paternity testing generally "range[s] from $400.00 to $2,000.00. Prenatal testing is often more costly than testing done after a baby is born because of the additional doctor and hospital- related fees." Id
182. If, for example, the couple conceives in November of year 1 and miscarries in May of year 2, the support payments made in November and December of year 1 would not be taken into account in each partner's year 1 tax returns filed in April. Then, after the miscarriage, a test linking the man to the ill-fated pregnancy would enable them to amend their year 1 returns to take advantage of the benefit-an administrative hassle that would effectively make the program impractical for most couples
183. See Lehr v. Robertson, 463 U.S. 248, 266-67 (1983) (holding that a biological father's legal rights with respect to his child are contingent on whether he established a relationship with the child); see also Michael H. v. Gerald D., 491 U.S. 110, 113 (1989) (plurali ty opinion) (denying a biological father's paternity rights when the mother was married to another man when she gave birth because "a child born to a married woman living with her husband is presumed to be a child of the marriage")
184. Indeed, one possibility is to allow multiple people to shift income to a single pregnant woman, which would represent a step in the direction of recognizing broader collective responsibilities rather than focusing on the nuclear family as the main form of social insurance. See supra Part II.B. The multiple-party version of the proposal would also accommodate polyamorous forms. See Elizabeth F. Emens, Monogamy's Law: Compulsory Monogamy and Polyamorous Existence, 29 N.Y.U. REV. L. & SOC. CHANGE 277, 284-85 (2004) (suggesting that the law should give greater attention and consideration to polyamorous alternatives to marriage and monogamy). It is not, however, likely to attract broad support
185. See generally 3 BITTKER & LOKKEN, supra note 109, 75.2
186. Thus payments from parents to their daughter would not be eligible for deduction/ inclusion treatment. Payments formally characterized as transfers from parents to their son's girlfriend would also be ineligible as they would be viewed as gifts from parents to son followed by preglimony payments from the son to his girlfriend. The gifts to the son would be nondeductible and excludible (as all gifts are). The payments from the son would be eligible for preglimony tax treatment but the benefit would most likely be lost (because if the son needs his parents to pay, his marginal rate is likely to be low, in which case no incomeshifting benefit would be available)
187. See supra Part II.B
188. Elsewhere I have argued that joint filing should be limited to taxpayers who are legally obligated to share their income, regardless of marital status. See Motro, A New "I Do," supra note 45. I continue to support this reform. In addition, I agree with critics who have argued that child support paid subsequent to a divorce should receive the same tax treatment as alimony. See supra note 154. I would also support extending this treatment to unmarried co-parents
189. The provision should be gender neutral to avoid uncertainties that might arise with respect to intersexual, transgendered, and other individuals whose sexual identity is ambiguous or subject to dispute. For a discussion of intersexuality and sex discrimination, see Julie A. Greenberg, Intersex and Intrasex Debates: Building Alliances to Challenge Sex Discrimination, 12 CARDOZO J.L. &GENDER 99 (2005)