April 30, 2010
Unmarried lovers who conceive are strangers in the eyes of the law. If the woman terminates the pregnancy, the man owes her nothing. If she takes the pregnancy to term, the man’s obligation to support her is limited. The law reflects this lovers-as-strangers presumption by making a man’s obligation towards a woman with whom he conceives derivative of his paternity-related obligations; his duty is towards his child, not towards the woman in her own right. Thus, a pregnant woman’s lost wages and other personal costs are her private problem, and if there is no child at the end of the pregnancy, there is no one - from a legal perspective - that the man must support.
The law also endorses this lovers-as-strangers default in the way in which it treats men who do support their pregnant lovers. It does this through the tax code. Current tax law regards payments between unmarried lovers as gifts or as child support. This characterization not only misses the mark descriptively, it also misses an opportunity to reward and encourage a behavior that is critically important in an age when sex and procreation outside of marriage are common.
This Article argues that the law should develop a new framework for addressing the unique relationship between unmarried lovers who conceive and that tax reform offers a practical and relatively modest first step for doing so. To this end, it proposes that Congress create a pregnancy support deduction. The deduction would benefit taxpayers who support pregnant women above a certain threshold by extending to them the same deduction we now give taxpayers who pay alimony.
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