Does a Biological Father Have a Right to Be Present at Birth?
I still vividly remember most of the moments of my first child’s birth. The labor was days long. Some vomiting was involved. At one point I believe I sobbed and cursed every person in the room, and all of this was before I was carted away for an emergency c-section.
Through every moment of this, my husband was there to provide me with support when I needed it and, just as importantly, went away for a while when I asked him to because sometimes a person’s presence is too much, and, when you are going through one of the most painful and potentially frustrating experiences of your life, you want to have at least the tiniest semblance of control.
When you are in labor, there isn’t much you get to be completely in charge of. The baby usually comes when he or she is ready, not when you are. If you are in a hospital there will be rules about whether you can eat, if you can drink, if you are even allowed to get up and walk around. I remember sitting in my birthing class a few weeks before my due date, and optimistically writing up my birthing plan — a lovingly crafted list of interventions I would reject and procedures I wouldn’t consider, each and every item of which was dropped as my labor went horribly wrong.
We have little we can truly, completely control during the birthing process, but at least as pregnant people we should be able to control who is in our presence at the moment we give birth. Yet somehow even that became up for debate in New Jersey, where a father-to-be attempted to have a court force his ex-lover to allow him to be in the room when she gave birth. News outlets called it unprecedented, and it was for a simple reason — no person should ever think he has the right to be in the room against the wishes of a woman giving birth, regardless of his relationship to the baby being born.
Luckily, the court agreed. “Any interest a father has before the child’s birth is subordinate to the mother’s interests,” ruled Superior Court Judge Sohail Mohammed. “Even when there is no doubt that a father has shown deep and proper concern and interest in the growth and development of the fetus, the mother is the one who must carry it to term.”
The judge couched his decision around the right to medical privacy offered by Roe v. Wade, as well as Planned Parenthood v. Casey. The latter was an obvious ruling to use since one of the restrictions that was blocked by Casey was a proposed Pennsylvania abortion consent rule that would require pregnant women to have their husband’s consent before ending the pregnancy.
Paternal rights are becoming a minefield to navigate for pregnant people who don’t wish to continue having the father’s presence in their lives. As Emily Bazelon noted at Slate, the suit to force the pregnant mother to let her ex be present during birth is reminiscent of skier Bode Miller’s accusations of his ex’s “appropriation of the fetus in utero” when she moved to a different state while pregnant in order to pursue her education.
Once a child is born, visitation, custody and support get to be more cut and dried issues, although courts still occasionally need to intervene in order to help advocate for the best interests of the child when parents can’t agree. During the pregnancy, however, that same tactic can’t be used, since the best interest of the child is so thoroughly intertwined with what is best for the mother. In most legal situations (the Miller example notwithstanding) courts recognize this fact and rule accordingly, because they see the logical fact that a child cannot be legally separated from its mother.
Why, it’s almost like the courts recognize that a child isn’t its own separate person and that its individual rights are subordinate to the person carrying it.
The father in question has now said that he never meant to be in the room while she was giving birth, he was just trying to ensure that he was notified as soon as it occurred and that he would be allowed to visit right away. Regardless of the reason for the suit, the action doesn’t bode well for harmonious parenting in the future. Now that there is a real child in the picture that can be emotionally harmed by fighting parents, let’s hope that some way can be found for a more harmonious relationship — without resorting to involving the courts.
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