Margaret A.M. Heine

is the principal counsel at Heine Law Group in Fullerton, California. She is licensed in California and Washington and has authority to practice before the Supreme Court of the United States and the United States Court of International Trade.

Her practice includes estate planning, wills, trusts, and probate as well as business, real estate, and civil litigation. Email: nbylegas@gmail.com or visit company website www.margaretamheine.com.

Murder, Not Murder:  Abortion and Paternal Rights

In part two of our series, we look at the confusing and not consistent law related to fetuses.  Since the 1973 case of Roe v. Wade was decided, it was determined that a woman had the right to terminate a pregnancy if she chose to.  What was not determined was whether or not a father of that unborn child could stop the abortion—he could not.  The woman’s right to decide was paramount to the rights of any other person as her womb was necessary for the life of fetus. Similarly, the law developed to restrict when abortion would be permitted.  The law was initially very limiting in application, and generally required that the abortion take place in the first trimester.  The law has changed, and with it, has the application of different standards and different laws regarding the death of a fetus.

A fetus has generally been accepted as being “a person” or “viable” when the fetus can survive outside of the mother’s womb.  So, the fetus has developed into a independent entity capable of surviving on it’s own.  In Roe v. Wade the court set the standard of viability at approximately 24-28 weeks of gestation.  Medical evidence has suggestion that a fetus may be viable at as little as 22 weeks, and by 27 weeks the likelihood of the fetus surviving is over 90%.

The U.S. passed the Born Alive Infants Protection Act in 2002.  It essentially stated that any fetus born, at any stage or time, would be considered a human if it can breathe or has a beating heart or can move its muscles.  This became even more important when in 2004 the U.S.  passed the Unborn Victims of Violence Act of 2004 which made it a crime to kill an unborn child in utero.  That law specifically exempted any person obtaining an abortion from being charged with the crime of murder.  Thirty eight (38) states have laws that recognize a fetus or unborn child as a potential victim for purposes of murder or homicide.  Therein lies the dichotomy.

Seven (7) states have made it legal to have an abortion up until the time of birth of the child.  Yes, fully viable under legal and medical definitions does not protect the fetus from the decision of the mother to terminate the pregnancy.  These seven states are Oregon, Vermont, Colorado, New Hampshire, Alaska, New Jersey, New Mexico and the District of Columbia.

So, it is legal to terminate a fully viable unborn child by a mother, but if a stranger were to terminate the life of the unborn child—even by accident—they are chargeable with murder.  To make it even stranger, a father has no rights to his unborn child—even if viable—until the child is physically born.  Upon birth, the father is then must prove his paternal connection to the child and fight for custody and control of the child—until that time, the father has virtually no rights.

Does it ring false that states pass laws to protect pregnant animals and their offspring, but do not offer the same protection to unborn children?  For example, New Jersey has a law on the books to prevent the slaughter of pregnant cows to protect the unborn calf.  Other Animal Rights laws exist on the state and federal level to protect the lives of unborn animals.  Interestingly, not to say there aren’t any standards in this area, but I failed to find any laws or mention of “abortion” in all of the laws related to animal cruelty and providing safe and humane treatment of animals.

Paternal rights to unborn children typically do not exist.  The mother’s right to privacy over her health, and the exclusive right to determine if she wants to carry a child, the father has no right of notification or permission in this situation.  The father is unilaterally denied the right to stop an abortion.  There is no mechanism in law to support the state or a court from interfering with the mother’s right to terminate a pregnancy.

If the mother would cease to be viable, and the unborn child taken from her womb, and it survived, the father would have rights to that child.  If the child is born, the father could challenge the rights of the mother to the child.

The only time a father has paternal rights to an unborn child is in the case of adoption.  Fathers are generally able to object to the unborn child being put up for adoption.  Of course, state laws vary on this issue, but typically, the father has the right to assert his interests in the child prior to the adoption and as soon as the child is born.

Of course, should the child be born, the father would be responsible for providing for the child and paying child support if the father and the mother were not cohabitating at the time.  A proof of paternity for a child is about the only way a father can successfully avoid responsibility or payment for a child when they are named as the father.  If the parties are married, the presumption is that the child is a child of that marriage.  If the father believes that they are not the father of the child, again, their recourse would be to challenge paternity.

So, could you apply the law that the death of the unborn child in a DUI accident is murder?  Could you easily reach the same decision if the mother was driving to an abortion clinic at the time of the accident?  Should it matter if the person knew that the woman was pregnant?  (Under current law, knowledge does not matter.)  How easy is it to draw distinctions as to the value of human life when the law values the same life differently?

Next up, impartiality and being a good juror.