CCAR RESPONSA COMMITTEE

 

5772.3

 

Child Support and Unexpected Pregnancy: A Parent’s Rights and Responsibilities

 

 

Sh’elah.

 

A young man has learned that a casual sex partner has become pregnant. He is not eager to become a father. The young woman refuses to undergo an abortion, which he would prefer. Instead, she proposes to raise the child as a single mother with the help of her parents and offers to terminate his parental rights and responsibilities.

 

May the young man agree to the legal termination of paternity, and if so, is he absolved of the responsibilities Jewish tradition assigns to a father? If he does not or may not agree to the termination of paternity, is he obligated to help pay for the expenses of pregnancy? If the young woman were to choose abortion, would he be obligated to share in the expenses of that procedure? (Rabbi Barry Block, San Antonio, TX)

 

 

T’shuvah.

 

Any reasonable conception of morality, Jewish or otherwise, demands that the individual take responsibility for his or her actions. Each one of us must accept responsibility for the predictable and foreseeable consequences of the deeds we perform in the world. At the same time, the precise definition of that responsibility will depend in large part upon social context. When the parameters of what we consider to be acceptable social behavior change as greatly and as rapidly as they have changed in our time, we may find that the obligations we once regarded as obvious are no longer self-understood.

 

What are the obligations, financial and otherwise, of this young man toward this young woman and toward their yet-to-be born child? How do we measure his moral responsibility against the backdrop of our contemporary social context, the web of values and beliefs that guide and govern the way individuals act in the world? Jewish tradition, we think, offers some important resources to help us work our way toward a set of answers.

 

1. A Parent’s Financial Responsibility towards a Child.

 

In his great code the Mishneh Torah, Maimonides summarizes as follows the Jewish law concerning a father’s financial responsibility toward his children:[1]

 

Just as one is required to pay his wife’s maintenance (m’zonot)[2], so he is obligated to pay the maintenance of his minor children until they reach the age of six years.[3] Beyond that point and until adulthood, he supports them in accordance with rabbinic edict.[4] If he does not comply with that edict, he is to be scolded and pressured (to do so). If he still refuses to comply, it shall be declared publicly that “So-and-so is a cruel person who refuses to support his children. He is lower than an unclean bird that does feed its young.” But he is not coerced to provide maintenance for them once they have reached the age of six.

 

The above applies when it is not clear that the father has the means to pay tzedakah. But if he does have the means to pay tzedakah and his wealth is sufficient for the children’s needs, he is coerced as a matter of tzedakah to support them until they reach adulthood.

 

In brief, one has no choice but to provide for the support of one’s child. A father’s obligations in this regard are enforceable at Jewish law, just as one’s general tzedakah obligations are enforceable,[5] whether or not he was married to the child’s mother at the time of conception.[6]

 

Some of the specific details of this p’sak (ruling) reflect their original social context, and for that reason we would not apply it literally in our own time. For example, we Reform Jews would insist that the financial responsibility toward children be assessed on both parents. The remedy of public humiliation, moreover, may strike us as distasteful and counterproductive; there are better and more effective ways of dealing with parents who will not provide for their children. Yet we find the basic thrust of this law to be entirely just and proper. One who brings children into the world bears a moral obligation to support them until such time that they can support themselves.[7] Since we hold that this obligation falls equally upon father and mother, there is also no reason to exempt this young man from sharing in the expenses of pregnancy. Although he may not be “eager to become a father,” he knew quite well that his “casual sex partner” might become pregnant. As we noted at nthe outset of this t’shuvah, it is a fundamental principle of law and ethics that we assume responsibility for the foreseeable consequences of our actions. All of this suggests that Jewish tradition would not absolve this young man of his responsibilities as the father of his child.

 

2. Adoption and the Termination of Financial Responsibility toward the Child. On the other hand, there are two considerations that would tend to modify this conclusion.

 

The first of these concerns adoption, a possibility raised by the young woman in our sh’elah. The classical Jewish sources do not mention the institution of adoption. Although we read that “when one raises an orphan in his household, it is considered as though one gave birth to that child,”[8] Talmudic halachah does not recognize that guardian as the child’s legal parent. Still, adoption has become a common practice in our communities, and Jewish law has responded to that reality. Specifically, it has had to address the question of whether adoption as we know it today establishes a legally-recognized relationship of parent to child. The halachic discussion is complex; suffice it to say that our own understanding of it has led us to conclude that a child’s adoptive parents are its “real” parents in every respect.[9] The biological parents, by allowing the adoption of their child, effectively waive or renounce the “honor” that the child owes them under the terms of Exodus 20:11.[10] By waiving that expectation and allowing others to fulfill the parental role in the child’s life, the biological parents also absolve themselves of the duties entailed by parenthood. In our case, the young man is being asked to waive his parental rights by allowing the young woman to adopt their child. And since a parent’s financial obligation toward a child stems from his or her standing as a parent, by terminating his parental role he effectively terminates as well his financial responsibilities towards that child.

 

3. The Best Interests of the Child. The question, of course, is whether he ought to allow the young woman to adopt the child and become its sole parent. This raises our second consideration, the principle of tovat hayeled, “the best interests of the child,” which looms large in the Jewish legal discussion of child custody. In theory, Talmudic law prescribes that when the parents are separated their children live with the mother until the age of six years. After that time, girls continue to live with their mothers while boys live with their fathers.[11] In practice, however, decisions about these matters have for many centuries been based upon the consideration of the child’s best interests.[12] Should the court find it better in any particular case for the child to be placed with one parent or the other, it may award custody to that parent even when this would contradict the Talmudic standard.[13] Today, “the best interests of the child” is recognized as the supreme consideration as a general rule and not merely in exceptional cases. Thus, in the Israeli rabbinical courts, “the basis for every decision concerning the custody of children is the principle of tovat hayeled as determined by the beit din.”[14]

 

Let us, therefore, ask a deceptively simple question: with respect to our sh’elah, which course of action would best achieve the goal of tovat hayeled? It is quite arguable that we would frustrate this purpose by forcing this young man to assume the financial and other duties of a father. To do so, against his will and despite what would appear to be the young woman’s strenuous opposition, may result in tension and strife between the two parents as they struggle over both the child’s upbringing and the relationship that will have been forced upon them. That conflict could last for many years, quite possibly to the detriment of the child. By contrast, in terminating his paternal rights and responsibilities, the young man may raise the likelihood that his child will grow up in a stable and cohesive home environment. Put simply, his decision to bow out of the life of his future child may well be in the child’s best interests.

 

We described this question as “deceptively simple” because, quite obviously, its answer depends upon a complex web of factors, issues, and considerations. It is not, at any rate, an answer that we can provide at a distance. Decisions like this require a careful judgment of the particular situation, one that can be made only by the parties involved, preferably with ample professional counseling. They must decide as best they can, even though they may never be absolutely certain that they have “gotten it right.” Such is the task that confronts the young man and the young woman of whom our sh’elah speaks. If in their best judgment they conclude that their child will fare better if the father terminates his paternal role and allows the mother to become the full custodian of the child, Jewish tradition would support them in their decision.

 

4. Abortion Expenses. Our sho’el asks whether the young man would be obligated, “(i)f the young woman were to choose abortion,” to share in the expenses of that procedure. The key term in this question is “choose.” Our responsa have discussed the issue of abortion several times over the years. They have concentrated upon the central question of the warrant for abortion, the circumstances under which abortion is morally justified.[15] In our view, abortion is maternally indicated: that is, the procedure is justifiable when necessary to preserve the mother’s health, to spare her serious anguish and suffering (and not merely to save her life). The choice for or against abortion is, for this reason, the mother’s decision to make. While she is certainly encouraged to consult with others before making her decision, we have never suggested that any other person, including the fetus’s father, exercises authority in saying “yes” or “no” to the abortion. By that same token, it can be argued that since the decision is entirely up to her, she rightly bears the financial consequences that follow from it.

 

On the other hand, while the decision is entirely up to the woman, the circumstances in which she is forced to consider that decision were created by an act that involved two persons. We think, therefore, that the answer to this question ought to flow from the same fundamental principle we describe above, namely that we assume moral responsibility for the foreseeable consequences of our actions. The young man shares financial obligations with respect to pregnancy and childrearing because pregnancy was a foreseeable (if undesired) consequence of their decision to engage in a sexual relationship. In the same way, he can be said to share financial obligation for the abortion procedure, should the young woman decide upon that course, because the abortion is a foreseeable consequence of that same decision.

 

Conclusions.

 

1. A parent has a moral obligation to provide financial support for his or her child, whether or not he or she is married to the other parent and whether or not the pregnancy was intended.

 

2. This obligation falls equally upon both parents. Thus, the father ought to share with the mother in the expenses of her pregnancy.

 

3. A parent may terminate the rights and responsibilities of parenthood, including financial obligations, by placing the child for adoption, whether with the other parent or with a third party. In all such cases, the overriding principle is the child’s best interests.

 

4. A decision for abortion lies ultimately with the mother. Should she decide upon this course, the father should share in the expenses of the procedure.

 

 

NOTES

1.              Yad, Ishut 12: 14-15. His sources are B. Ketubot 65b and B. Ketubot 49b. The decision is repeated in Shulchan Aruch Even Ha-ezer 71:1.

 

2.         While the literal translation of the Hebrew term is “food,” the legal requirement of m’zonot includes clothing and housing as well; see Yad, Ishut 13:6 and Shulchan Aruch Even Ha-ezer 73:6-7. M’zonot, in addition, extends to the payment of medical expenses (B. Ketubot 52b; Piskei Din Rabani-im vol. 10, p. 219ff). In addition, see B. Kiddushin 29a: “the father is obligated… to teach his son Torah, to enable him to marry, and to teach him a trade.” That is to say, a parent’s financial obligation to a child extends to the provision of a range of social goods, including education, that are deemed essential for a happy and successful life.

 

3.         See the sources cited in note 11, below: given that the father has custody of his son once the latter reaches the age of six years, the father can as a matter of law refuse to provide for the son’s maintenance if he remains with his mother. This would seem to be the reason, in theory, for the determination that a father has a Toraitic obligation to support his children only until that time. As we have seen, however, rabbinic law extends this obligation until the child reaches majority.

 

4.         The “rabbinic edict” is a takanah adopted by the Tanaitic authorities at Usha (B. Ketubot 49b). And while the age of majority is classically set at thirteen years for boys and twelve years for girls, recent halachic practice, in keeping with the temper of the times, extended the period of support to fifteen years. See A. Freimann, “Hatakanot hachadashot shel harabbanut harashit l’eretz yisrael b’dinei ishut,” Sinai 13-14 (1943-1944) pp. 451-458.

 

5.         B. Bava Bata 8b and Ketubot 49b. See Yad, Matanot Aniyim 7:10. Where Rambam notes that this coercion can be accomplished by various means, either corporal or legal (i.e., the court attaches the property or wages of the individual until his obligations have been met).

 

6.         Jewish law does not recognize the special status of a child “born out of wedlock”. The father’s obligations to the child exist because he is the child’s father and not because he is married to the child’s mother. See B.Z. Schereschewsky, Dinei Mishpacha, 4th edition (Jerusalem: Rubin Mass, 1992), pp. 391ff.

 

7.         We will not enter here into the question of the level of support, except to say that, as a matter of Jewish legal theory, it is set in accordance with the needs of the child and not according to the wealth of the parent (Yad, Ishut 13:6). This distinguishes child support from the maintenance of one’s wife, the level of which classically does depend upon the husband’s financial status (B. Ketubot 48a; Magid Mishneh, Ishut 13:6).

 

8.         B. Megilah 13a.

 

9.         For a discussion of the literature, see our responsum no. 5753.12 in Teshuvot for the Nineties, pp. 201-207 (http://ccarnet.org/responsa/tfn-no-5753-12-201-207).

 

10.       B. Kiddushin 32a; Yad, Hilkhot Mamrim 6:8; Shulchan Aruch Yore Deah 240:19.

 

11.       B. Ketubot 65b and Rashi ad loc., s.v. yotzei b’eiruv imo; B. Ketubot 102b; Yad, Ishut 21:17; Shulchan Aruch Even Ha-ezer 82:7.

 

12.       Resp. Rashba Attributed to Ramban, no. 38; R., David ibn Zimra (Egypt, 16th-17th century), Resp. Radbaz, 1:123; Isserles, Even Ha-ezer 82:7.

 

13.       R. Mordechai Halevy (17th-century Egypt), in his Resp. Darchei Noam, no. 26, explains that this practice does not depart from Talmudic law but rather reinforces it. The Talmud, he argues, bases its standard upon an evaluation of the child’s best interests: as a general rule (al has’tam) it is best for all young children to live with their mothers and for boys over the age of six to live with their fathers. Like all general presumptions, this one is refutable; should the court determine in any particular case that the presumption actually works to the disadvantage of the child, it may award custody to the other parent.

 

14.       Piskei Din Rabbani’im, vol. 1, p. 56. See also Piskei Din Rabani’im, vol. 11, p. 366: “Even though the halachah declares that a minor daughter should always be placed with her mother, if the court determines that it would be better for her to live with her father it is empowered to transfer her custody to him.” On the jurisprudence in both the Israeli rabbinical and state courts on this point, see Schereschewsky (note 6, above), pp. 398-399, especially at note 2.

 

15.       See, especially, “Abortion to Save Siblings from Suffering,” no. 5755.13, Teshuvot for the Nineties, pp. 171-176 (http://ccarnet.org/responsa/tfn-no-5755-13-171-176), which contains references to previous discussions.