Fathers' Rights and Abortion
By FindLaw Staff | Legally reviewed by Nicole Prebeck, Esq. | Last reviewed December 14, 2022
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While discussions about abortion often focus on the rights of a mother or an unborn child, there have been efforts to elevate fathers' rights in abortion decisions through notice requirements or "opt outs." Expectant fathers might oppose a pregnant mother's decision to terminate a pregnancy or, conversely, may not wish to assume the responsibilities of fatherhood and oppose the carrying of a pregnancy to term.
While courts have largely treated fathers' rights in abortion decisions as secondary to those of the mother, other means exist for fathers to influence the decision, namely, through private agreements.
Fathers' Rights and Abortion: Consent
If a father's pregnant partner seeks to have an abortion, the father's consent isn't legally required; the person carrying the child may choose to terminate a pregnancy against the father's objections. The legal reasoning for this is twofold. It is based on a woman's right to privacy in that woman's medical decisions, while it's also based on the fact that the mother is more directly affected by pregnancy. In both considerations, observance of the pregnant party's reproductive rights has been key.
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, the Court reinforced. According to the Court in Planned Parenthood, since the woman actually carries the pregnancy, "the balance weighs in her favor," preventing the husband from vetoing the woman's choice.
Fathers' Rights and Abortion: Notice Requirements
If the father's consent isn't required to abort a fetus, does the father have a legal right to be notified before it happens? Is it a violation of paternal rights, if that notification does not take place? What if state lawmakers pass a law that says a married woman must inform their partner before she has an abortion?
The Supreme Court addressed this question in Planned Parenthood v. Casey and found that such a law was unconstitutional. While most women discuss an abortion with their partners, those who don't 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.
Opting Out of Fatherhood, or "Financial Abortions"
Another question that arises is whether a father should be obligated to financially support a child that their partner gives birth to, if the father would prefer to remain childless. After birth, the father generally will be responsible for child support payments despite any objections by the father to carrying the pregnancy to term. This has led some fathers' rights advocates to oppose what they see as a double standard in family planning.
Advocates for fathers' rights argue that a father should be able to decide, after conception, that they don't want to be a father. Frances Goldscheider, a professor at Brown University, has argued that fathers should have the right to "financial abortions."
A "financial abortion" right would require a woman to notify a prospective father during pregnancy. The father would then be allowed to refuse financial or legal responsibility for the baby if they don'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 a "financial abortion," or to opt out of 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 the child's support and education.
Private Agreements Between Partners
Remember that a father may be able to come to agreement with a pregnant partner outside of the court system if the father would like for the mother to keep the baby. 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 doesn't wish to be fully responsible for child support, informal child support agreements between parents are possible. Research shows that a small but significant percentage of custodial parents have informal agreements not involving court orders.
Get Legal Help with Your Questions About Fathers' Rights and Abortion
Abortion rights are a hot topic and many state abortion laws have changed since the United States Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health. It is unclear what, if anything, individual states may do regarding fathers' rights and abortion.
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 wish to contact a family law attorney near you to learn more.
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