CHICAGO – They had sex. She got pregnant. She sued for child support. Now, he’s suing back, claiming that men have a constitutional right to “avoid procreation.”

With the suit, 25-year-old Matthew Dubay of Saginaw, Mich., becomes the public face of a “men’s rights” movement that claims men should have the same ability as women to decide whether or not to have children.

Supporters of the movement are calling the case “Roe vs. Wade for men” – a precedent-setting case that could define a man’s right to choose parenthood.

The case is the first to assert a constitutional freedom to “choose not to be a father” under the equal protection clause, said Dubay’s attorney, Jeffery Cojocar.

Child support isn’t the only issue at stake: Dubay doesn’t want any of the other legal or emotional responsibilities that come with parenthood, Cojocar explained.

The National Center for Men had been planning this kind of legal challenge for more than a dozen years and recruited Dubay as the plaintiff. “There’s such a spectrum of choice that women have – it’s her body, her pregnancy,” Mel Feit, the group’s director, told The Associated Press. “I’m trying to find a way for a man also to have some say over decisions that affect his life profoundly.”

Legal experts said they don’t think the case, filed Thursday in U.S. District Court, has a prayer of success. “It’s a lost cause,” said Charles Kindregan Jr., a professor at Suffolk University Law School in Boston.

Having sex is an inherently risky enterprise and the only way to enforce a man’s right not to father a child after conception would be to compel the woman to have an abortion, Kindregan explained. “The courts are not going to buy that,” he said. “That’s her choice, not his.”

The facts of Dubay’s case are common to many romances.

In the fall of 2004, he had a discussion with his then-girlfriend. Dubay told her he wasn’t ready to have kids, according to the legal complaint. That’s fine; I’m infertile and I’m using birth control just in case, she allegedly responded.

When the woman found herself with child, she was unwilling to terminate the pregnancy. She gave birth to a baby girl and then obtained a court order requiring Dubay to pay $500 a month in child support.

Dubay thus joined the ranks of men who argue they were duped into having children they never wanted and then forced to assume financial responsibilities for which they were unprepared.

It’s an old story, and one the courts have been very clear on, said Bruce Boyer, director of the child law clinic at Loyola University Chicago School of Law. The child’s interest in receiving support, he said, overrides any interests the father may have.

“I can understand why people might be sympathetic to Mr. Dubay if he was duped into becoming a father,” Boyer said. But if the child is his – as is the case – “this shouldn’t be about him and his rights; it should be about this child and the child’s needs.”

Marcia Greenberger, co-president of the National Women’s Law Center, makes a similar point. “There is a consistent and strong policy in this country that when a child is born, both parents are responsible, whatever the sins and deceptions of either parent.”

As for the argument that men don’t have the same reproductive rights as women, Greenberger doesn’t buy it. “If this person wanted to avoid parenthood, there were steps he could have taken beyond accepting the word of the woman – what about not having sex or using condoms?”

When a pregnancy occurs, there is no question of equality: “Physically he is not in the same situation as she is,” Greenberger said. Once a child is born, equality is re-established in that both the mother and father are deemed responsible for the infant, she added.

Still, there are inconsistencies in the laws surrounding “intent to parent,” experts acknowledge.

Consider an increasingly common issue in the field of assisted reproduction: What happens when a man and woman create a test-tube embryo together, store it for possible future use and then decide to divorce?

In several cases where the woman wanted to use the embryo to become pregnant and the man objected, courts have ruled in favor of the man who didn’t want to be a father, said Katharine Baker, a professor at Chicago-Kent College of Law.

“There is a valid argument that we apply one standard in assisted reproduction – the father has a right not to be forced to become a parent – and a different standard when people have babies the old fashioned way,” she said.

“It is a little odd that the man really doesn’t get to say whether the child comes to exist or not,” Baker added.

But there’s a good reason for the different standards, Kindregan argues. In the case of the embryo or frozen sperm, the pregnancy is a possibility only. In the event of a pregnancy, the woman becomes “the carrier of the fetus” and “its fate is inter-connected with her body.”

Attempts to reach Dubay for comment were not successful Thursday.

(c) 2006, Chicago Tribune.

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Distributed by Knight Ridder/Tribune Information Services.

AP-NY-03-09-06 2042EST

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