While discussions about abortion often focus on the rights of a mother or unborn child, family planning decisions can also involve the father's rights and abortion. An expectant father might oppose the pregnant mother's decision to terminate a pregnancy. Conversely, he may not wish to become a father and oppose carrying a pregnancy to term. In both cases, the father's rights are often seen as secondary to the mother's, leading some advocates to call for a stronger paternal role in family planning.
Father's Consent to Abortion
If a man's pregnant partner seeks to have an abortion, the father's consent isn't legally required. A woman may choose to terminate a pregnancy against the objections of the father. The legal reasoning for this is twofold, based on a woman's right to privacy in her medical decisions, and in the fact that the mother is more directly affected by pregnancy.
The Supreme Court has found laws requiring a spouse's consent for an abortion to be unconstitutional. In Planned Parenthood v. Danforth, the Court reasoned that a husband's refusal to consent would in effect veto a woman's choice to terminate a pregnancy. While both prospective fathers and pregnant women have an interest in the decision, when the two disagree, only one partner's position can prevail. According to the Court, since the woman actually carries the pregnancy, "the balance weighs in her favor," preventing the husband from vetoing her choice.
Father's Right to be Notified of an Abortion
If the father's consent isn't required for abortion, does he have a legal right to be notified when one occurs? The Supreme Court addressed this question in Planned Parenthood v. Casey and found that the father does not have a legal right to be notified of an abortion. While most women discuss an abortion with their partners, those who do not were much more likely to be in abusive relationships, according to the Court. The Supreme Court saw spousal notification requirements as placing an undue burden on women who may fear for their safety, or that of their children.
Disclaiming Fatherhood, or "Financial Abortion"
American law places much of the decision making power regarding abortion in the hands of the prospective mother. She may choose to terminate a pregnancy without the consent or notice of the father. At the same time, a woman may choose to give birth to a child, even if the father would prefer to remain childless. After birth, the father may be responsible for child support payments despite his objections to carrying the pregnancy to term. This has lead some advocates of fathers' rights to oppose what they see as a double standard in family planning.
Some advocates argue that a man should be able to decide, after conception, that he does not want to be a father. Frances Goldscheider, a professor at Brown University, has argued that men should have the right to "financial abortion." A "financial abortion" right would require a woman to notify a prospective father when she's pregnant. The man would then be allowed to refuse financial or legal responsibility for the child if he doesn't want to be a father. Should the child be born despite this, the biological father would not be legally or financially responsible for the child's upbringing.
Currently, there is no right to "financial abortion," or to disclaim fatherhood. In one well-publicized case, a father in Michigan objected to child support payments when his ex-partner gave birth after knowing he did not want children. The court rejected his argument that, since a woman may avoid motherhood through abortion, the man had a right to disclaim responsibility for a child born against his wishes. The court saw the question not as one of the father's interests versus the mother's, but of the child's right to parental support. Once a child is born, the parents were responsible for its support and education.
Private Agreements Between Partners
Remember that a father may be able to come to agreement with his pregnant partner outside of the court system if he would like her to keep the child. If a prospective mother seeks to abort a pregnancy against a father's wishes, an attorney may be able to draft an agreement where the father agrees to pay the costs of pregnancy and obtain full custody after birth. Similarly, if a father does not wish to be fully responsible for child support, informal child support agreements between parents are possible. Research shows that only half of custodial parents have formal court ordered support agreements, with many of those who do not establishing voluntary support agreements themselves.
Getting Legal Help With Questions About Fathers' Rights
Even though prospective fathers are not physically invested in the pregnancy and birth of their child, they still may have rights when it comes to their unborn child. If you have questions about your rights and responsibilities as a prospective father, whether or not it's in the context of an abortion, you may want to contact a family law attorney near you to learn more.