Law and the Cost of Sex
A German court recently ruled that a gynecologist who improperly implanted a contraceptive device was potentially liable for child support when his patient conceived an unwanted child. The decision has garnered some critical commentary in Germany, where it has been suggested that by holding that the brute existence of a child constitutes a legal wrong, the court has sent a horrible message to the child involved. Be that as it may, there is probably a fair efficiency argument in favor of the decision.
Sex has costs. The most obvious is pregnancy or the risk of pregnancy, which exacts considerable physical costs on a woman’s body but also results in a child that will create enormous costs. Who should bear the costs of sex? In a sense, this is what the abortion debate is about. Should we use a medical procedure to shift (some) of the costs of sex from the woman to the unborn child? (Folks differ dramatically on the justice of making the fetus bear these costs; it strikes me as wildly unfair but others disagree.) Paternity suits and child-support obligations are another way of allocating costs. Biology and tradition throws the costs of child rearing overwhelmingly on women, and the law tries to compensate by shifting some of those costs to men.
Traditional law and economics suggests that the cost of sex ought to be assigned to the cheapest cost avoider. A social conservative might follow through on this logic and argue that the costs of sex should never been shifted by the law to parties other than those actually having sex, as they can always avoid sex via abstinence. The problem with this argument as an economic matter is that it assumes that abstinence has no costs. If we assume that sex has a positive value then the economic argument may counsel in favor of shifting the costs of sex to other parties whose costs are less than the benefit of foregone sexual activity. Hence, one might argue that the cost of the doctor performing the contraception implantation with greater care is less than the cost of the couple doing something else with their evening. We would still need to know, however, that additional care by the doctor would have been cheaper than some alternative form of contraception such as a condom. Finally, there is the issue of contract. One might argue that the doctor ought to pay because he failed to do what he promised to do. (Note: the German court’s decision seems to have sounded in tort rather than contract to the extent that cases sound in tort or contract in the civil law system.) This, however, gets us into the question of optimally efficient contract damages, and I think that it is pretty unlikely that the payment of the 18 years of child support by the doctor in this case is economically efficient.
Of course, the analysis above assumes that the cost-shifting process has no externality problems. The critical commentary on the court’s decision essentially amounts to the claim that the decision also imposes psychic costs on the child in question. This may or may not be true. It can’t be good for a child to be publicly labeled by her parents as an unwanted cost, on the other hand I doubt that most toddlers are following the doings of high courts closely. At the end of the day, I don’t have much sympathy for the doctor in this case. I’ve got even less for the father, who seems to have entirely exited the picture. After all, economics aside a child ought to be much more to a parent than simply a cost.