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ISSUES REGARDING THE LAW

by Margaret Heine Abortion & Paternal Rights: Murder - Not Murder
In part two of our series, we look at the chargeable with murder. To make it even when they are named as the father. If
confusing and not consistent law related to stranger, a father has no rights to his the parties are married, the presumption
fetuses. Since the 1973 case of Roe v. Wade unborn child—even if viable—until the is that the child is a child of that
was decided, it was determined that a child is physically born. Upon birth, the marriage. If the father believes that they
woman had the right to terminate a father must prove his paternal connection are not the father of the child, again,
pregnancy if she chose to. What was not to the child and fight for custody and their recourse would be to challenge
determined was whether or not a father of control of the child—until that time, the paternity.
that unborn child could stop the abortion— father has virtually no rights. So, could you apply the law that
he could not. The woman’s right to decide Does it ring false that states pass the death of the unborn child in a DUI
was paramount to the rights of any other laws to protect pregnant animals and accident is murder? Could you easily
person as her womb was necessary for the their offspring, but do not offer the same reach the same decision if the mother
life of fetus. Similarly, the law developed to protection to unborn children? For was driving to an abortion clinic at the
restrict when abortion would be permitted. example, New Jersey has a law on the time of the accident? Should it matter if Margaret A.M. Heine is the principal
The law was initially very limiting in books to prevent the slaughter of the person knew that the woman was counsel at Heine Law Group in
application, and generally required that the pregnant cows to protect the unborn calf. pregnant? (Under current law, Fullerton, California. She is licensed in
abortion take place in the first trimester. Other Animal Rights laws exist on the knowledge does not matter.) How easy California and Washington, and has
The law has changed, and with it, has the state and federal level to protect the lives is it to draw distinctions as to the value authority to practice before the Supreme
application of different standards and of unborn animals. Interestingly, not to of human life when the law values the Court of the United States and the
United States Court of International
different laws regarding the death of a fetus. say there aren’t any standards in this area, same life differently? Trade. Her practice includes estate
A fetus has generally been accepted but I failed to find any laws or mention of planning, wills, trusts, and probate as
as being “a person” or “viable” when the “abortion” in all of the laws related to well as business, real estate, and civil
fetus can survive outside of the mother’s animal cruelty and providing safe and Next up, impartiality and being litigation. Email: nbylegas@gmail.com or
womb. So, the fetus has developed into a humane treatment of animals. a good juror. visit company website
independent entity capable of surviving on Paternal rights to unborn www.margaretamheine.com.
it’s own. In Roe v. Wade the court set the children typically do not exist. The
standard of viability at approximately 24-28 mother’s right to privacy over her health,
weeks of gestation. Medical evidence has and the exclusive right to determine if she
suggested that a fetus may be viable at as wants to carry a child, the father has no
little as 22 weeks, and by 27 weeks the right of notification or permission in this
likelihood of the fetus surviving is over 90%. situation. The father is unilaterally
The U.S. passed the Born Alive denied the right to stop an abortion.
Infants Protection Act in 2002. It essentially There is no mechanism in law to support
stated that any fetus born, at any stage or the state or a court from interfering with
time, would be considered a human if it can the mother’s right to terminate a
breathe or has a beating heart or can move pregnancy.
its muscles. This became even more
important when in 2004 the U.S. passed the If the mother would cease to be viable,
Unborn Victims of Violence Act of 2004 and the unborn child taken from her
which made it a crime to kill an unborn child womb, and it survived, the father would
in utero. That law specifically exempted any have rights to that child. If the child is
person obtaining an abortion from being born, the father could challenge the rights
charged with the crime of murder. Thirty of the mother to the child.
eight (38) states have laws that recognize a
fetus or unborn child as a potential victim The only time a father has
for purposes of murder or homicide. paternal rights to an unborn child is in the
Therein lies the dichotomy. case of adoption. Fathers are generally
able to object to the unborn child being
Seven (7) states have made it legal put up for adoption. Of course, state laws
to have an abortion up until the time of birth vary on this issue, but typically, the father
of the child. Yes, fully viable under legal has the right to assert his interests in the
and medical definitions does not protect the child prior to the adoption and as soon as
fetus from the decision of the mother to the child is born.
terminate the pregnancy. These seven states
are Oregon, Vermont, Colorado, New Of course, should the child be
Hampshire, Alaska, New Jersey, New born, the father would be responsible for
Mexico and the District of Columbia. providing for the child and paying child
support if the father and the mother were
So, it is legal to terminate a fully not cohabitating at the time. A proof of
viable unborn child by a mother, but if a paternity for a child is about the only way
stranger were to terminate the life of the a father can successfully avoid
unborn child—even by accident—they are responsibility or payment for a child

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