Fathers' Rights Before Birth
The extent of fathers' rights before birth can depend on the marital or relationship status of the parents. A married expectant father will likely have more access to details of prenatal development and care. An unmarried father who is no longer in a relationship with the expectant mother may have little or no access.
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, children can benefit from fathers embracing the rights and duties of fatherhood as soon as possible. Knowing more information on fathers' rights can help parents make the best of those important decisions before the birth of a child.
Prenatal Medical Care
Pregnant women should undergo routine medical screening. Screening can spot health concerns of both the mother and the unborn child. An expectant father can demonstrate his commitment to the child by contributing to the cost of prenatal health care. Fathers can also take parenting classes. Such efforts set the groundwork for a positive father-child relationship in the future. They present strong indicators of the desire to establish paternity and parental rights after birth.
Sometimes the parents of an unborn child disagree about which medical decisions are best. In that instance, the desires of the child's mother about health care decisions will take precedence. Historically, the law views the right to make health care decisions as an individual right. For example, in 2014, a New Jersey state court upheld a mother's decision to exclude an unwed father from the delivery room. The court found that concern for the mother's privacy and health were key.
The father of an unborn child may want to check on the mother's test results. He may desire to be at doctor's appointments. He may want to support prenatal health care plans. Most of these actions require the mother's consent. 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. Husbands and unmarried fathers cannot access the mother's health care records without authorization.
After the child's birth, HIPAA allows any parent the right to see their children's medical records. The parent must demonstrate that they are one of the child's personal representatives. Unmarried fathers will not achieve representative status unless they have established paternity and parental rights.
In all states, absent extraordinary circumstances, both legal parents of a child must consent to adoption. When parents are married, the law presumes that the husband is the child's father. A presumed father can then consent or object to an adoption.
To gain legal rights, it's important for an unmarried father 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 appear in adoption cases.
The situation is different when the unwed father has not established legal paternity and has not demonstrated his commitment to parental responsibility. When an unmarried father has minimal involvement in the child's upbringing, states have more 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 can file an objection. He files the objection with the state court, or in some cases, the state health and human services department. Some eighteen states allow the father to give consent before or after the child's birth. Alabama, Colorado, and Hawaii allow the mother to consent to adoption before birth. This requires reaffirmation of consent after birth.
Approximately half the states have established a putative father registry. In these states, an unwed father may voluntarily acknowledge paternity (or the possibility of paternity) of a child born outside of marriage. Registry notice provides the right to participation in adoption proceedings.
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.
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. Check your state's specific laws.
In some states, a mother's substance abuse while pregnant can lead to child abuse or neglect charges. The state's child welfare agency will assess the child's health at birth. It may take action if there were negative consequences to the child. Wisconsin has one of the stricter laws regarding prenatal drug and alcohol use. In Wisconsin, the state can take a pregnant woman 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.
The Wisconsin statute was challenged on several constitutional grounds in 2017. The federal district court found that the statute was void due to vagueness. As the litigant moved out of state, the federal appeals court ruled that the matter was moot and vacated the lower court's judgment.
About half of the states provide for the prosecution of mothers whose drug or alcohol abuse may harm a viable fetus. Several states also provide priority access to treatment programs for pregnant women who struggle with addiction. The effectiveness of such state laws is questionable. Research demonstrates that the risk of prosecution may cause expectant mothers who abuse alcohol or drugs to avoid prenatal care.
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 may contact the state child welfare agency. A father may also seek legal advice. Once the child is born, a father may file a parentage action and seek child custody and/or parenting time.
Parents should also be aware of the dangers of domestic violence during pregnancy. Any physical harm directed towards the mother may also cause injury to the unborn child. Many states have enhanced penalties for domestic violence offenders when the victim is pregnant.
Changes in Reproductive Rights Law
In Dobbs v. Jackson Women's Health Organization (2022), the U.S. Supreme Court overturned a woman's federal constitutional right to abortion services. That right had been established in Roe v. Wade (1973) and a long series of cases that had struck down numerous state regulations on abortion before fetal viability. The Court's decision provides a new landscape for reproductive rights going forward. At this juncture, some states have begun establishing outright bans or other restrictions on abortion throughout a woman's pregnancy. Other states have taken steps to ratify a woman's right to choose abortion in state law and/or state constitutional provisions.
Some state laws invalidated under Roe required a husband's consent to an abortion. Depending on your state, efforts to legislate the husband or father's consent to abortion may gain traction.
Certain states have adopted fetal personhood statutes. These laws could impact the prenatal decisions of mothers and fathers going forward. These laws will face challenges in the courts. Potentially, a fetal personhood law could restrict the use of in vitro fertilization procedures. Such laws may restrict the use of contraceptive devices which may be abortifacient.
The Parentage Action
At present, fathers' rights before birth remain limited. This acknowledges the fact that only women carry children during pregnancy. A mother and an unborn child's health are closely tied together. The law generally recognizes the mother's predominate interest prior to the time of viability.
Unmarried fathers cannot obtain legal rights unless they file a paternity action (or parentage action) and assert their rights. When a man believes he is the biological father of a newborn child, he should consider the following steps after the birth of the child:
- Contact the child's mother and sign an affidavit that contains an acknowledgment of paternity.
- File a paternity action in court seeking designation as the legal father.
- Submit to DNA testing — genetic testing can confirm paternity with 90%+ accuracy.
- If confirmed as the father of the child, seek to have your name added to the child's birth certificate.
Fathers who take these steps show a desire to become an active participant in their child's life. In a paternity/parentage action, a father can also seek custody and/or visitation rights. He can work with the child's mother to determine the parenting time schedule and child support.
Courts decide matters of child custody and parenting time using the best interests of the child standard. When parents agree on these matters, courts can adopt the parents' agreement into the court order. If the parents do not agree, the court can decide what would be in the child's best interest and issue judgment.
Protect Your Rights as a Father: Talk to an Attorney
The law addresses fathers' rights before and after birth. An expectant father can take early steps to promote his child's well-being. Consider talking to a fathers' rights or family law attorney. Get started today by contacting an experienced fathers' rights attorney near you.
Can I Solve This on My Own or Do I Need an Attorney?
- You can represent yourself in a paternity case, but establishing paternity can be emotionally and legally complex
- Lawyers can help you understand your rights and responsibilities
An attorney can explain the legal procedures and consequences of establishing paternity. Many attorneys offer free consultations.
Don't Forget About Estate Planning
If you are in the midst of a paternity case, it may be an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.