Does a Father Have a Right to Be in the Delivery Room?

On behalf of The Marks Law Firm, L.L.C. posted in Paternity, Child Custody and Father’s Rights on Friday, March 14, 2014

A New Jersey Superior Court judge handed down an interesting ruling this week on an issue that probably affects more people than we realize – does a father have a right to be present for the birth of his child even if the mother does not want him present?

Mother and father had been a happy couple for quite some time, and after they became pregnant, they became engaged.  However, as the pregnancy progressed, the relationship started to sour, and mother now wanted nothing to do with father.  In fact, mother did not even want the father’s name on the child’s birth certificate.  However, father still felt very attached to the pregnancy and planned to be an active father after the birth of the child.

Usually, when mother and father no longer remain a couple during pregnancy, the father who wants involvement waits until after the birth of the child to file a paternity suit to establish parentage and custodial and support rights.  In this case, however, father went to court pre-birth so that he could share in the wonder of the birth of his child and make sure that child had his name on the birth certificate.  So, he filed a legal action seeking an injunction that would require mother to allow him to be present for the birth of the child and to put father’s name on the birth certificate as the biological father.

The trial court looked to the Uniform Parentage Act (UPA) as the basis of any potential legal right, as all issues of parentage are creatures of statute.  The trial court noted that the UPA does not address specifically any pre-birth rights for fathers or mothers.  In its definitions of “presumed father” and “presumed mother,” the court found little help, as most of the relief deals with matters after the birth of the child.  So, finding no help in the plain language of the statute, the trial court could not order relief, but noted that father had easy remedy with regard to the birth certificate once the child is born.

The trial court next addressed a constitutional right to be present for the birth.  It started by looking at abortion cases and noting that the Supreme Court has found that only the mother and the State have an interest in fetal life during the pregnancy.  The trial court quoted from Planned Parenthood v. Casey that because a woman “physically bears the child” and is “more immediately and directly affected” by the pregnancy, her interests are primary and fundamental.  The trial court also looked to cases on the matter of privacy, and found again that case law supports the primacy of the interests of the mother to choose who can be present in the delivery room.  Ultimately, the trial court concluded father did not have a recognized constitutional interest that would trump one attached to the mother and long recognized as protected.  While the Supreme Court has found fundamental rights to parent a child, even if the parents are not married, the protections of fatherhood have never found a “pre-birth” foothold to compete with that of the mother.  So, for example, a father cannot force a mother to bear his child if she chooses to terminate the pregnancy.

While the trial court’s decision in the New Jersey case may follow under the current statutory language and the fundamental rights of bodily integrity and privacy, it does seem discriminatory that a father who plans to be present and active in the child’s life after birth has no right at all to be present at the birth.  Some fathers may be in such conflict with the mother that their presence would create stress that could risk the health of the child; but to categorically exclude the paternal interest in the birth seems to violate both Equal Protection principles and also the due process right to parent one’s child, given that parenting begins with birth.

While a father can take legal action after birth to assert his parentage and assure his name appears on the child’s birth certificate and that he has legal and physical custodial rights, those remedies occur so early in the process that any initial denial causes little relative harm.  However, a father has only once chance to see the birth of his child, and to not recognize even a legal interest in that process seems to demean fatherhood.

Perhaps the legislature will address this issue in the future by amending the Uniform Parentage Act and allow paternal presence in the delivery room so long as it is not against the best interests of the child or poses a risk of maternal or fetal harm.

If you have questions about paternity issues, contact our St. Louis family law attorneys – we can help.