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Fathers' Rights Before Birth

Expecting fathers may have questions about a father's rights before birth. Decisions made during pregnancy, including medical testing, health care decisions, and adoption, can have great significance once a child is born. Traditionally, mothers retain most of the decision-making rights regarding an unborn child. However, knowing what rights a father does have can help parents make the best of those important decisions before the birth of a child.

Fathers' Rights Before Birth: Medical Care

Pregnant women should undergo routine medical screening to monitor the health of both the mother and fetus. Contributing to the cost of prenatal health care can demonstrate a father's commitment to a child, helping him establish a substantial relationship for the purposes of paternity and parental rights after birth.

However, if the mother and father of an unborn child are in disagreement about which medical decisions are best, a mother's wishes regarding health care decisions will outweigh those of the father. This is because the law generally views the right to make health care decisions as an individual right. For example, a state court in New Jersey has found that a mother's decision to exclude an unwed father from the delivery room must be respected, out of concern for her privacy and health.

The father of an unborn child may want to check on the mother's test results, be present at doctor's appointments, or otherwise be involved with prenatal health care. To do so, the father will have to obtain the consent of the mother. The federal Health Insurance Portability and Accountability Act (HIPAA) creates strong privacy rules that prevent health care providers from sharing a patient's medical information with anyone but the patient. Neither spouses nor unwed parents are entitled to access the medical records of the other without authorization.

Once the child is born, however, HIPAA allows parents the right to see their children's medical records if that parent is the child's personal representative.

Fathers' Rights Regarding Adoption

In all states, both legal parents of a child must consent to adoption. In order to gain the legal rights of a father, it's important to establish legal paternity early. The Supreme Court has repeatedly held that legally recognized fathers who have established a substantial relationship with their child have the right to make decisions regarding adoption.

However, where the father is unmarried and legal paternity has not been established, and the father has not demonstrated his commitment to the responsibilities of parenthood, as demonstrated by being involved or attempting to be involved in the child's upbringing, states have almost complete discretion to limit a father's parental rights regarding adoption.

If the mother of an unborn child has discussed adoption and the father objects, he should file his objection with the state court, or in some cases, the state health and human services department. If the mother and father both agree on adoption, twelve states allow the father to give consent prior to the child's birth. States like Alabama and Hawaii allow the mother to consent to adoption before birth. This requires consent to be reaffirmed after birth.

Approximately half the states have established a putative father registry through which the father must voluntarily acknowledge paternity (or the possibility of paternity) of a child born outside of marriage in order to have the right to participate in the decision of whether or not to place the child for adoption.

Many states require a waiting period, usually around three days after birth, before the parents can consent to adoption. Consent should be given carefully, as it can be very difficult to revoke.

Fathers' Rights Before Birth: The Health of the Mother and Unborn Child

The health of a child before birth is closely tied to the health and well-being of the mother. Activity such as abusing drugs or alcohol while pregnant can lead to serious child welfare issues after birth.

Almost all state child welfare laws address prenatal drug and alcohol exposure in some capacity. Many states require health care workers to report instances of Fetal Alcohol Syndrome and drug exposure in newborns. Definitions of abuse or neglect vary between states, so check your state's specific laws.

In some states, a mother's substance abuse while pregnant can be considered child abuse or neglect if the newborn infant is affected by drug or alcohol use. Wisconsin, for example, has one of the stricter laws regarding prenatal drug and alcohol use. There, a pregnant woman may be taken into custody if her "habitual lack of self control" regarding alcohol and drug use creates a substantial risk to the physical health of her unborn child.

Other states' child welfare laws provide for prosecution of mothers whose drug or alcohol abuse may harm a viable fetus. Several states provide priority access to treatment programs for pregnant women who struggle with addiction.

Signs of drug or alcohol exposure in a newborn may provide grounds for challenging custody and determining parental rights after birth. If a father believes that a mother's behavior will jeopardize the health of his unborn child, he should contact his state's child welfare agency. In addition, evidence of drug or alcohol abuse can be used by the father to seek greater custody of the child once the child is born.

Protect Your Rights as a Father: Talk to an Attorney Today

The law addresses fathers' rights, before birth and after, with respect to the child's welfare. Protect your child's interests, and your rights as a father, by talking to an attorney. Get started today by contacting an experienced family law attorney near you.

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