Abortion: the father's rights
Gilbert, R.A.
University of Cincinnati Law Review. University of Cincinnati. College of Law 42(3): 441-467
1973
ISSN/ISBN: 0009-6881 PMID: 11664234 Document Number: 6089
In the decision to abort or give birth, it is clearly the mother's health and welfare at stake; she, not the father, must carry and bear the child. Perfectly equal rights are obviously impossible in this area. But in both tort and family law there exist legal theories that potentially give the father the right to be heard in the abortion decision. The wrongful death action recognizes the paternal interest in the legitimate fetus, and this is arguably so even before viability. His interest in the postnatal life is equal with the mother's, and an argument can be made that since the fetus merely represents a preliminary stage in the development of the child, his rights in the fetus should be nearly equal to that of the mother's. The rights of the illegitimate father are admittedly less secure. He cannot maintain a wrongful death action, nor an action for invasion of a family relationship, and his rights in the child are not equal to the mother's. Therefore, he has no enforceable rights in the fetus. However, these distinctions may be eliminated by the Equal Rights Amendment, which would give him rights similar to those held by the legitimate father. Roe held that the state interest becomes compelling after viability. Therefore both criminal sanctions and civil recovery are possible for the abortion of the viable fetus. As to the previable fetus, Roe v. Wade evidently forecloses the possibility of a criminal enforcement, even when the father's rights and the state interest are cumulated. This conclusion, under the doctrine of New York Times Co. v. Sullivan, would prevent any civil enforcement of the father's rights. Nevertheless, the father's rights to participate in the abortion decision are not well defined. Following Roe, however, there are likely to be new developments in this area.
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