What rights does a man have during his lovers pregnancy?
With marriage rates declining, there is an increase in children being born to unwed couples. There is no “apparent” stigma and society seems to have embraced this as a norm. Indeed, in the past a child born out of wedlock was called “illegitimate”.
However, now our society recognizes that there is nothing illegitimate about any human being and all children recognized rights of a person independent of whether or not their parents are married. This positive shift has however, resulted in questions being raised regarding the rights of parents, especially fathers, with respect to their offspring.
What rights does the father have when he believes that another woman (his lover; girlfriend; or unmarried partner) is carrying his child? Does he have the right to ask his partner to stop smoking? Does he have the right to insist on a specific type of birth (hospital; midwife; water birth; natural birth; or otherwise)? Does he have the right to stop his lover from having an abortion or even engaging in dangerous activities or experiences while pregnant? Does he have the right to have the baby bear his last name or the name of his choice when the baby is born? Does he have the right to stop or insist on a circumcision at birth in the hospital?
In our firm we have handled over 15,000 cases over the years and we have seen all of the above situations. In fact, we are contacted regularly by men seeking answers to these questions. More specifically, how can any man know whether or not the child in another person’s (a woman) womb is his? The only way to determine this would be from a paternity test during the pregnancy, a procedure known as a “Pre-natal Paternity Testing”.
It is only through pre-natal paternity testing that the man could even hope to assert a plan as putative father. In other words, a man is precluded from asserting his rights pending the results of a paternity test. This begs the question: Does a man have the right to order pre-natal paternity testing? Answer… NO!
Even though there are genetic marker tests and blood tests, whereby the fetus is undisturbed, (there is no intrusive or risky Amniocentesis, there is no testing of the amniotic fluid or the fetal tissues;) it is simply a pin prick test of the mother. The mother’s right to privacy together with the HIPAA Laws, 45 CRF Part 160 and subparts A and E of Part 164 prevent ordering a woman to submit to pre-natal paternity tests.
The law is confusing in this area because the new state law allows a specific law suit or proceeding during the pregnancy under Family Court Act section 517 “where either party demands a blood test”. However, it also states that the matter must be adjourned until the birth of the child” Anne E.S. D’Antonios 115 Misc. 2d 192, 193, 454 NYST d50 (1982).
It is widely recognized by the court that §532 of the Family Court Act states that on the Motion of any party, the Courts will advise the parties of their right to a blood test and shall order the mother, her child, and the alleged father to submit to one or more blood tests. See Anne E.S. D’Antonios 115 Misc. 2d 192, 193. The Family Court has concluded that “child” as defined by this Act is certainly applicable to a child born out of wedlock. See Family Court Act §512. However, nowhere in the article is there a provision for the testing of the fetus. The child must already be born even though the action for the genetic testing can be done while the woman is pregnant. Unfortunately, even though the scientific reliability of a pre-natal test is, for all reasonable purposes, conclusive, the Court does not have the statutory authority to order such testing. This is compounded by a woman’s right to control her own body within the parameters of Federal and State Law outside of Family Law. Accordingly, even if the Family Court Act in the local and State Law was to be amended to allow some pre-natal paternity testing after six months of pregnancy to deal with issues such as a pregnant mother’s recklessness; drug use or smoking; choice of delivery methods; circumcision’s remain selective. This would not be something that could effectively survive challenges under HIPAA Privacy Laws and Personal Privacy Laws under the United States Constitution.
The reality of the situation is that a man who believes he is the father of a unborn child, has no rights until the child is born. It is our experience that 85% of the cases when a man is seeking to obtain pre-natal testing or otherwise interfere with a woman’s pregnancy it is because that man wants to set himself up as an exceptional father and therefore must be more involved and caring than the average man. Only 15% of the cases where the pre-natal testing is sought do we find a man is seeking our advice due to an ulterior motive such as control; options of fleeing the jurisdiction before the birth; and financial planning.
The above being said, motherhood involves sacrifices that cannot be shared or understood of people who are not mothers. Motherhood and pregnancy are a very special time and children are not only our future, they will be our replacements. How parents treat each other during their children’s lives will affect not only this child, but it will have cumulative generational affect from one child to another. Families come in all different sizes and shapes in this day and age. It is important that people take care of themselves and each other especially when there is a child involved.
Bryan L. Salamone & Associates, P.C. is a divorce and family law firm in Melville, New York. They are arguably the largest and most successful divorce and family law firm in New York and Mr. Salamone personally takes consults in selective cases. See their website at www.divorcelawyerlongisland.com for further information.