Court rules moms can bar dads from delivery room

HisGirlFriday13

@JCBride2014, you're a law student -- care to weigh in on this? 

http://www.njlawjournal.com/home/id=1202646374429

http://www.people.com/people/article/0,,20796082,00.html?xid=rss-topheadlines

Apparently, a court in New Jersey ruled that expectant mothers can bar the fathers from the delivery room -- the court cited a woman's right to privacy. Now, the case in question involved estranged parents-to-be (the article calls the dad the mom's 'estranged fiance.' Call me crazypants, but if you're barring him from the delivery room at your mutual child's birth, the 'fiance' part of that is probably moot. You're just 'estranged.') so I don't know how it would apply to married couples.

While I agree on principle with the idea that a woman has the right to privacy (and I certainly think that extends to excluding people from the delivery room), I wonder about other aspects of this -- not least of which allowing the father access to the child regardless of his relationship with the mother, and the decision on naming the child. Who gets to decide which surname it bears? 

grumbledore

I think ultimately the woman is the patient, therefore it's her choice whether she wants anyone there who doesn't need to be.  She should not be able to keep him from seeing the baby after it's born however.

grumbledore

And if a couple is unmarried, the mother decides the baby's name, legally.

phira

Eh, honestly, I don't think that allowing the father of the child access to the child is relevant during the actual birth. I'm also a bit, "Huh?" on what an "estranged fiance" is, but I can think of plenty of scenarios in which having the bio-dad out of the room is for the best.

As for the name/surname debate, I think it has to be an equal decision, or (if custody isn't distributed equally) the parent with the larger share of custody can make the call. Am currently sort-of-fighting with J over what last name our kids will have.

HisGirlFriday13

But what if there is no custody agreement? This just strikes me as a slippery slope.

If the mom wants to breast-feed, then she's going to need (essentially) primary if not full custody, at least for the first part of the kid's life. But then that excludes the dad unfairly, because he should get to bond with baby, too.

I don't at all disagree with disallowing the father during the actual birth (DH might not be present for the birth of our future kids because he doesn't do blood well and I don't do sympathy for that well), but I don't think the mother can deny the father access to the baby once it's out of her body. 

@phira -- sorry you and J are fighting over surnames. That sucks. 

Maggie0829

I think ultimately the woman is the patient, therefore it's her choice whether she wants anyone there who doesn't need to be.  She should not be able to keep him from seeing the baby after it's born however.

I agree with this. Giving birth is medical in nature and since the Mother is the patient she has every right to privacy and deciding who and who is not allowed in the room. As for what happens to the child after it is born, that should be up to both parents equally since it took both parents to make the child (of course not in all cases as in if the Mother had a sperm donor or the like). 

I do think that many times with parental rights, the Fathers get the short end of the stick.

JennyColada

I was under the impression that this is always the case for everyone everywhere.

HisGirlFriday13

@Jennycolada -- apparently not. The court said in its ruling that the issue had never been litigated before, although I wonder if it was just the aspect of fathers being barred that hadn't been litigated.

HobokensFury

Hell I may have to use this with my husband depending on how much he stresses me out in the delivery room. I agree though that the issue of the delivery room and child support/custody are two very different things. It's apples and oranges.

doeydo

Good.  If I got knocked up from someone and I wasn't with them anymore, I wouldn't want them in the delivery room with me.  He can see the baby after he or she is born.  

Maggie0829

So what happens if something goes terribly wrong? If the mother barrs the father from the room and something happens where she can't make a decision, can the doctors then seek out the father for consent to treat? How does that work?

They would seek out the Father or who ever had the legal power to make a decision for that person if they were unable to.

HisGirlFriday13

Everyone raises good questions, but I don't think there are answers to some of them.

Ex.: What happens if something happens to the mother, and the doctors' choices are save the mother or save the baby? The father is the next of kin (and next to make a legal decision) for the baby, but might not be for the mother. The mother might not have the person who's authorised to make that decision for her with her at hospital. Then what?

As far as barring him from the room, sure -- but this mother wanted to bar the father from seeing the baby for the first 24 hours. How is that fair?

phira

@shrekspeare Different scenario. In that case, next of kin/whoever can make medical decisions for the mother gets to make that decision. Until the baby is born, mother + fetus = one patient (mother).

Also, the father wouldn't have to be IN the delivery room to make a decision, if doctors did still want to abide by patient privacy.

NYCBruin

HisGirlFriday13 said:

@Jennycolada -- apparently not. The court said in its ruling that the issue had never been litigated before, although I wonder if it was just the aspect of fathers being barred that hadn't been litigated.

I imagine it was just the fathers being barred aspect.  Considering not too ago, fathers weren't even allowed in delivery rooms (ever), this isn't surprising. 

Maggie0829

HisGirlFriday13 said:

Everyone raises good questions, but I don't think there are answers to some of them.

Ex.: What happens if something happens to the mother, and the doctors' choices are save the mother or save the baby? The father is the next of kin (and next to make a legal decision) for the baby, but might not be for the mother. The mother might not have the person who's authorised to make that decision for her with her at hospital. Then what?

As far as barring him from the room, sure -- but this mother wanted to bar the father from seeing the baby for the first 24 hours. How is that fair?

The bolded is not fair.  Once the child is born that child belongs to the parent, not just the Mother so the Father has every right to see his child.  To prevent him from doing so is against his right as a parent.

NYCBruin

HisGirlFriday13 said:

Everyone raises good questions, but I don't think there are answers to some of them.

Ex.: What happens if something happens to the mother, and the doctors' choices are save the mother or save the baby? The father is the next of kin (and next to make a legal decision) for the baby, but might not be for the mother. The mother might not have the person who's authorised to make that decision for her with her at hospital. Then what?

As far as barring him from the room, sure -- but this mother wanted to bar the father from seeing the baby for the first 24 hours. How is that fair?

Actually, I'm not sure who the baby's next of kin would be.  This would depend on the state's laws.  For example, in NY if the mother were married but the father was not her husband, the husband is presumed the child's "father" for legal purposes until proven otherwise.  Until the baby has a birth certificate, I don't think there is a next of kin aside from the mother and usually the mother has say over the birth certificate. 

HisGirlFriday13

NYCBruin said:

HisGirlFriday13 said:

Everyone raises good questions, but I don't think there are answers to some of them.

Ex.: What happens if something happens to the mother, and the doctors' choices are save the mother or save the baby? The father is the next of kin (and next to make a legal decision) for the baby, but might not be for the mother. The mother might not have the person who's authorised to make that decision for her with her at hospital. Then what?

As far as barring him from the room, sure -- but this mother wanted to bar the father from seeing the baby for the first 24 hours. How is that fair?

Actually, I'm not sure who the baby's next of kin would be.  This would depend on the state's laws.  For example, in NY if the mother were married but the father was not her husband, the husband is presumed the child's "father" for legal purposes until proven otherwise.  Until the baby has a birth certificate, I don't think there is a next of kin aside from the mother and usually the mother has say over the birth certificate. 

Good point! The same thing is true in PA. So then that's an even bigger issue -- who is the baby's legal guardian and next of kin if the parents aren't together and are acrimonious? I would think it would be the father (it should be), but since the baby is part of the mother until it's born, can she make someone else the decider?

SO. MANY. QUESTIONS!!

phira

In terms of next of kin, if the baby isn't born yet, it doesn't have next of kin, so it's just the mother's next of kin that would matter.

mysticl

I'm not sure if this is the case in all states but here is my understanding based on my own experience and that of friends.

The mother is given the birth certificate to fill out.  She names the baby, the father does not sign off on the birth certificate.  The only time the father signs off is if the mother is not married.  If the mother is not married, the father has to sign agreeing that he is the father.  If he does not do this the birth certificate will be filed with the state with no father listed.  The father can agree to be listed at a later time and have the birth certificate amended but that's more paperwork.  If the mother is married her husband is legally the father unless he objects.  Biology is not a factor in this.  

HisGirlFriday13

@phira -- but under a lot of state's 'born alive' rules, you can be prosecuted for double homicide for killing a pregnant woman if she's passed a certain point in her pregnancy, because the foetus is a person, legally. 

So where does legal personhood begin, and when does it apply? If you can be a legal person for the sake of homicide charges, can't you be a legal person for the sake of parental rights?

(I'm asking because I am genuinely curious, and I foresee this law having a lot of ramifications).

pumpkinsandturkeys

This is what all of the questions are doing to me:

mysticl

HisGirlFriday13 said:

Everyone raises good questions, but I don't think there are answers to some of them.

Ex.: What happens if something happens to the mother, and the doctors' choices are save the mother or save the baby? The father is the next of kin (and next to make a legal decision) for the baby, but might not be for the mother. The mother might not have the person who's authorised to make that decision for her with her at hospital. Then what?

As far as barring him from the room, sure -- but this mother wanted to bar the father from seeing the baby for the first 24 hours. How is that fair?

A friend of mine gave birth in a Catholic hospital and was told that policy was to let her die if it came down to a choice.  

JCbride2015

Fascinating.  First off I think the judge got this right under privacy law.  I don't know much about health law, but I've studied abortion law a bit, and the woman has a constitutional right to privacy in her body (including the fetus) until the baby is born.  So it makes complete sense that she can bar the father from the delivery room, because it's her medical procedure, not his.

After the baby is born I would assume normal default custody rules would apply unless the couple has already worked something out.  I don't know what the default rules are-- theoretically, I suppose until the father signs the birth certificate, he isn't legally the father and thus has no rights.  So it makes sense his lawyer was pressing for him to be allowed to sign the birth certificate.

Personhood laws are deeply troubling to me.  It's not just because I'm pro-choice, although that's obviously a huge ramification.  But think about if the fetus is legally a person after, say, 6-7 months: what about a mother with obesity?  Or who smokes or drinks?  Or is a drug addict?  Can somebody, or the state, sue on behalf of the fetus to punish the mother?  Not that pregnant women should do any of those things, but there's a long history of hospitals abusing minority women under the assumption that they are using drugs while pregnant.  Or, even if they are using drugs, calling the police for minority women but not white women who might use the same substances.  Plus the science on exactly what is harmful to the fetus and what isn't, and the amounts you'd need to ingest, is very conflicted and doesn't seem to support criminalization.  The whole personhood thing seems to open a big can of worms in which the state, or other private citizens (probably men!) can regulate women's bodies and I just don't like it one bit.

Although, I do think there is or should be a way to draft legislation to punish homicide of a pregnant woman more severely than homicide of a non-pregnant person.  You just don't need to call the fetus a person to do it.  I think the most obvious solution is to just elevate that homicide to an aggravated crime, making pregnancy an aggravating factor.

jdluvr06

I was in the room with my sister when she had her babies and it made me think of this in a whole new way. I do not think the father should have the right to be in the room during delivery if the mother doesn't want him to be. However once the baby is out that is a different story. I also agree with whoever said father's get the short end of the stick when it comes to custodial stuff. Men have the equal rights to their children as women do IMO.

JCbride2015

mysticl said:

HisGirlFriday13 said:

Everyone raises good questions, but I don't think there are answers to some of them.

Ex.: What happens if something happens to the mother, and the doctors' choices are save the mother or save the baby? The father is the next of kin (and next to make a legal decision) for the baby, but might not be for the mother. The mother might not have the person who's authorised to make that decision for her with her at hospital. Then what?

As far as barring him from the room, sure -- but this mother wanted to bar the father from seeing the baby for the first 24 hours. How is that fair?

A friend of mine gave birth in a Catholic hospital and was told that policy was to let her die if it came down to a choice.  

This makes me sick.

HisGirlFriday13

@mysticl -- FWIW, that is not a correct statement of Church doctrine. The Church's official position is to save the mother's life, even if it's at the expense of the child.

phira

I actually do not support double homicide when a pregnant person is murdered, soooooo *shrug* Not that I think it's OKAY, and I'm not going to police how people mourn in those cases, but under the law, I see it as a single event. I know that 1) not everyone agrees with me, and 2) it IS two murders under the law in many jurisdictions. I just don't think it should be the law.

mysticl

NYCBruin said:

HisGirlFriday13 said:

@Jennycolada -- apparently not. The court said in its ruling that the issue had never been litigated before, although I wonder if it was just the aspect of fathers being barred that hadn't been litigated.

I imagine it was just the fathers being barred aspect.  Considering not too ago, fathers weren't even allowed in delivery rooms (ever), this isn't surprising. 

You have to figure that this is something that would have to be started in advance.  I've seen a hospital ban a father from the delivery room at the mother's request.  If he had tried to fight it in court at that point the baby probably would have been born by the time he found a lawyer and it went to court.  

mysticl

HisGirlFriday13 said:

@mysticl -- FWIW, that is not a correct statement of Church doctrine. The Church's official position is to save the mother's life, even if it's at the expense of the child.

It may not be but that is what my friend was told.  This was also several years ago so could it have changed?

HobokensFury

shrekspeare said:

HisGirlFriday13 said:

@mysticl -- FWIW, that is not a correct statement of Church doctrine. The Church's official position is to save the mother's life, even if it's at the expense of the child.

That seems odd for the Catholic Church. Can you explain the reasoning behind that?

I don't know about the official position of the church but things like this are often part of a birth plan if the mother chooses to write one. It lays out the mothers wishes about everything from music in the room to emergency situations. Although it may not be typical my OB advised me to talk to my husband about it. I told him to save him, not me.

HisGirlFriday13

The rationale is that you're saving the mother's life and the child's life might be lost as an unfortunate side effect, not as an intentional termination. 

Excerpt from an article on Catholic.net: 

"What the aforementioned article should have said is this: There are instances in which it is legitimate for an expectant mother to undergo certain medical or surgical procedures that will save her life, even if these procedures inevitably involve the death of her unborn child. In these cases it is not a question of intentionally aborting the child. They involve, rather, accepting the loss of the child as an unavoidable consequence of caring for the mother´s health. 

The clearest and surest example is the ectopic pregnancy. As everyone knows, should the fetus become lodged in the oviduct or fallopian tube, its continued growth will result in the death of both child and mother. A normal and proper procedure in this case is the removal of the fallopian tube, from which the death of the unborn child inevitably follows. In this case the death of the child is not sought, nor is the mother´s life saved by the child´s dying. 

This is not an abortion. Quite simply, the mother´s life is saved by the surgical removal of the oviduct, not by the death of her child. If this reasoning is too subtle for some American minds to follow, well, the available evidence suggests that just about any coherent thinking these days is too subtle for some American minds to follow. 

A similar dilemma would arise in the case of an expectant mother diagnosed with uterine cancer. The death of the child obviously would result from the removal of the cancerous organ, but it is not the death of the child that is deliberately sought, nor is the mother´s life saved as a result of the child´s death. This is not an abortion in the sense used by moral theology; it is just a standard application of the ethical principle known as "double effect," which is undoubtedly what the magazine in question, an Orthodox journal that takes its theology seriously, intended to say. "

So think about an ectopic pregnancy -- if you don't remove the foetus, the mother will die, but if you do remove it, it will die. However, it's not going to survive anyway, because of the fundamental non-viability of ectopic pregnancies.

The tipping point is whether the baby is being terminated deliberately or if the termination is a side-effect of life-saving surgery for the mother.