Paternal rights and abortion

From Wikipedia, the free encyclopedia
Jump to: navigation, search

The paternal rights and abortion issue is an extension of both the abortion debate and the fathers' rights movement. Countries recognizing father's legal rights on abortion have laws requiring that the male who impregnated the pregnant female either consent or be informed before she has an abortion.[citation needed]

History[edit]

Roman law allowed induced abortions but regulated it in consideration of the biological father. Emperor Septimius Severus ruled circa 211 AD that a woman who had an abortion without consent from her husband should face exile for having bereaved her husband of children.[1][2]

In his speech Pro Cluentio, delivered in 66 BC, Cicero refers to a case he had heard of in which a woman from Miletus was sentenced to death for having aborted her pregnancy, upon receiving bribes from those who stood to inherit her husband's estate if he produced no heir. Cicero said that in doing so she had "destroyed the hope of the father, the memory of his name, the supply of his race, the heir of his family, a citizen intended for the use of the republic".[3]

A 4th century BC Greek writer from Alexandria, Egypt, Sopater, quoted the lawyer Lysias, who had referred to a trial in Athens in which a man named Antigene accused his wife of having deprived him of a son by having an abortion.[1]

Men and abortion in law[edit]

Whether a male has a legal right to advance his personal interest, whether it be toward abortion, fatherhood, or adoption, over that of the female partner in the relationship differs by region.

In 1998, it was reported that Egypt, Guinea-Bissau, Iran, Iraq, Japan, Republic of Korea, Kuwait, Malawi, Morocco, Nicaragua, Syria, Turkey, and the United Arab Emirates all had laws which required that an abortion first be authorized by the woman's husband. However, in some countries, this stipulation could be bypassed or overridden if there is genuine concern for maternal health.[4]

Since Roe v. Wade, some states in the United States have attempted to enact laws requiring spousal consent. All of these laws have been ruled unconstitutional, spousal consent in the 1976 decision Planned Parenthood v. Danforth and spousal awareness in the 1992 decision Planned Parenthood v. Casey.[citation needed]

Legal cases[edit]

In China the husband of a woman who had an abortion filed a lawsuit against her in 2002 under a law intended to grant sexual equality in terms of childbearing and contraceptive decisions. The law stated that a woman has no overriding priority over her spouse in deciding whether to have a child.[5]

A number of legal cases have arisen in the Western world in which men have tried to prevent women with whom they had been sexually active from obtaining an abortion, all of which failed:

  • 1978: William Paton of Liverpool, United Kingdom attempted to stop his separated wife, Joan, from undergoing an abortion in the 1978 case Paton v. Trustees of British Pregnancy Advisory Service Trustees. A judge ruled in his wife's favour and Mr. Paton's later request for a hearing before the European Court of Human Rights was also denied.[6][7][8]
  • 1987: Robert Carver of the United Kingdom tried to prevent an abortion in the 1987 case C v. S. He claimed that the Infant Life (Preservation) Act applied to the fetus, as, at the time, his ex-girlfriend was 21 weeks along. When the High Court of Justice and the Court of Appeal dismissed the case, it was brought before the House of Lords, where three Law Lords sided with the earlier decisions. The entire legal process took 36 hours, as the Health Authority refused to allow an abortion before a decision was reached, making it one of the fastest cases in the history of British law. Nonetheless, the woman involved chose to carry the pregnancy to term and gave the baby to Carver.[6][7][8][9]
  • 1989: Jean-Guy Tremblay of Quebec, filed an injunction against his girlfriend, Chantal Daigle, in attempt to prevent her from obtaining an induced abortion in the 1989 Canadian case Tremblay v. Daigle. The Supreme Court of Canada ultimately ruled that there was no precedent for a man's right to protect his "potential progeny", as a fetus was not found to have a right to life under the Quebec Charter of Human Rights and Freedoms.
  • 2001: Stephen Hone of Coventry, United Kingdom, unsuccessfully attempted to prevent his former girlfriend Claire Hansell from having an abortion.[10]

Controversy[edit]

Those who support a man's right to direct involvement argue that it is unreasonable that, after fertilisation has occurred, women are often given more options with regard to pregnancy and parenthood than men.[11] Parenting authority Armin Brott has said of this, "A woman can legally deprive a man of his right to become a parent or force him to become one against his will".[12]

Abortion vetoing[edit]

Men's rights and fathers' rights activists have argued that men should have veto power over their partners' decisions to abort.[13][14][15][16] Similarly, Philosopher George W. Harris has written that, if a man impregnates a woman with the explicit goal of having a child, in a manner that is mutually consensual, then it would be morally unacceptable for that woman to later have an abortion.[17]

Pregnancy vetoing[edit]

Bioethicist Jacob Appel has pointed out that “if one grants a man veto power over a woman’s choice to have an abortion in cases where he is willing to pay for the child, why not grant him the right to demand an abortion where he is unwilling to provide for the child?[18]

Opting out[edit]

In reference to those cases in which men who do not desire to become fathers have been required to pay child support, Melanie McCulley, a South Carolina attorney, in her 1998 article, "The Male Abortion: The Putative Father's Right to Terminate His Interests in and Obligations to the Unborn Child," set forth the theory of the "male abortion," in which she argues that men should be able to terminate their legal obligations to unwanted children.[11][19] In some cases, men and boys that have been raped (statutorily or otherwise) by women have been forced to pay child support to their rapists.[20]

Those who object to men having a right to direct involvement argue that because it is the woman who carries the couple's unborn baby, her determination for or against abortion should be the definitive one.[11][21] Marsha Garrison, a professor at Brooklyn Law School, stated that U.S. courts acknowledge "that embryo is in the woman's body, it is within her and can't be separated from her, so it's not just her decision-making about whether to bear a child, it's about her body".[22]

However, one could also argue that if personhood is essential for rights, and that if the woman decides whether or not to turn her prenatal offspring into a person, then she should also have all the responsibilities of parenthood and child-rearing (essentially allowing the man to opt-out of child support). A 2002 United States Gallup special report mentions only 38% of the population being opposed to requiring the consent of the husband of a married woman for an abortion.[23] In a 2003 Gallup poll, 72% of respondents were in favor of notification to the husband, with 26% opposed; of those polled, 79% of males and 67% of females responded in favor.[24]

Opting in[edit]

It is also possible, rather than taking the stance that males should have the freedom to opt out of inherent responsibilities and rights, to take the stance that one must opt-in and agree to undertake those responsibilities to be compelled to follow them, and only through doing so, earn parental rights. This is what occurs during adoption.

See also[edit]

References[edit]

  1. ^ a b John M. Riddle (1992). Contraception and Abortion from the Ancient World to the Renaissance. Cambridge, MA: Harvard University Press.
  2. ^ "Timeline 3rd Century." (2003). The Ultimate Science Fiction Web Guide. Retrieved June 9, 2006.
  3. ^ Cicero. (66 BC). Pro Cluentio. (C.D. Yonge, Trans.). Retrieved June 9, 2006.
  4. ^ Rahman, Anika; Katzive, Laura; Henshaw, Stanley K. (1998). "A Global Review of Laws on Induced Abortion, 1985–1997". International Family Planning Perspectives 24 (2). 
  5. ^ Maximova, Vickie. "Chinese man sues wife over abortion." (March 20, 2002). BBC News. Retrieved May 26, 2006.
  6. ^ a b Nolan, David. "Should men have rights in abortion?." (March 21, 2001). Pro-Choice Forum. Retrieved May 26, 2006.
  7. ^ a b "Woman in Hone case has abortion." (March 30, 2001). British Pregnancy Advisory Services: Press Release. Retrieved May 29, 2006.
  8. ^ a b Thorpe, Mathew Alexander. (2000). Consent for Caesarean Section: Part 1 development of the law. Catholic Medical Quarterly. Retrieved May 29, 2006.
  9. ^ Brahams D (March 1987). "An action by putative father and unborn fetus to prevent termination". Lancet 1 (8532): 576–7. doi:10.1016/S0140-6736(87)90226-1. PMID 2881128. 
  10. ^ "Abortion for court fight woman." (March 26, 2001). BBC News. Retrieved May 26, 2006.
  11. ^ a b c Young, Cathy. (April 2003). "Aborting Equality: Men's Odd Place in the Abortion Debate." Reason. Retrieved June 11, 2007.
  12. ^ "Abortion and the father." (n.d.). BBC: Religion & Ethics. Retrieved May 26, 2006.
  13. ^ Cahill, Charlotte (2010). "Men's Movement". In Chapman, Roger. Culture Wars: An Encyclopedia of Issues, Viewpoints, and Voices. Armonk: M.E. Sharpe. p. 355. ISBN 978-0-7656-1761-3. 
  14. ^ Baker, Maureen (2006). Restructuring Family Policies: Convergences and Divergences. Toronto: University of Toronto Press. p. 95. ISBN 978-0-8020-8783-6. 
  15. ^ Solinger, Rickie (2013). Reproductive Politics: What Everyone Needs to Know. Oxford: Oxford University Press. p. 130. ISBN 978-0-19-981141-0. 
  16. ^ Drakich, Janice (1989). "In search of the better parent: The social construction of ideologies of fatherhood". Canadian Journal of Women and the Law 3 (1): 69–87. "In the case of abortion, fathers' rightists are accusing women of denying fathers' paternal instincts and are lobbying for fathers' rights to veto abortion decisions." 
  17. ^ Harris GW (April 1986). "Fathers and fetuses". Ethics 96 (3): 594–603. doi:10.1086/292777. PMID 11658724. 
  18. ^ Appel, Jacob M. “Women’s Rights, Men’s Bodies,” New York Times, December 2, 2005
  19. ^ McCulley MG (1988). "The male abortion: the putative father's right to terminate his interests in and obligations to the unborn child". J Law Policy 7 (1): 1–55. PMID 12666677. 
  20. ^ "[1]." (n.d.). MALE VICTIMS OF STATUTORY RAPE ARE OBLIGATED TO PAY CHILD SUPPORT. Retrieved October 6th, 2011.
  21. ^ Wiley, Keith. (April 2001). "Abortion and Men's Reproductive Rights." Retrieved June 11, 2006.
  22. ^ Pam Belluck. "The Right to Be a Father (or Not)." (November 6, 2005). The New York Times. Retrieved June 11, 2007.
  23. ^ "Public Opinion About Abortion — An In-Depth Review." Lydia Saad. January 22, 2002.
  24. ^ The Pew Research Center for the People and the Press. (2005-11-02). "Public Opinion Supports Alito on Spousal Notification Even as It Favors Roe v. Wade." Pew Research Center Pollwatch. Retrieved 2014-10-16.

External links[edit]