The Decision to Have Children
Who
makes the decision to become a parent?
The Supreme Court declared in the
1973 case of Roe v. Wade that the decision whether to have a child is
very personal and is protected by the right to privacy under the U.S.
Constitution. This means that individuals who wish to have a child cannot be
barred from doing so (unless, perhaps, they are incarcerated). Individuals who
do not wish to have a child have a legal right to obtain and use
contraceptives.
What if one spouse wants children
and the other does not?
If one person in the marriage wants
a child and the other does not, that could be a basis for a divorce. A
disagreement on such a fundamental issue could be an irreconcilable
difference under the no-fault divorce laws of most states. In states that
have grounds for divorce based on someone being at fault, a disagreement on the
question of whether to have children could be viewed as mental cruelty, and thus
a basis for ending the marriage.
Beyond divorce, remedies are limited. The
courts cannot force a pregnant woman to stop the pregnancy, nor does the law
require a wife to have her husband's permission for an abortion.
Abortion
What is the current status of
abortion law?
As of the beginning of 2004, women still have a constitutional
right to an abortion. In 1992, the U.S. Supreme Court in the case of Planned
Parenthood v. Casey reaffirmed its decision in Roe v. Wade that women
have a right to seek an abortion during the early stages of pregnancy. The
Supreme Court also decided, however, that states have a right to regulate how
abortions are performed and that states may ban abortions after the fetus is
viable (able to live outside the womb) unless the mother's life or health is
endangered. The scope of regulation and funding of abortions by the government
varies from state to state and is often tested. States may impose a
twenty-four-hour waiting period before an abortion is
performed.
Family Law
FAQ
May a girl under eighteen obtain an abortion without her
parent's consent?
Yes. However, if a girl under
eighteen seeks an abortion, state law can require that she obtain permission
from a judge. In Casey, the Supreme Court upheld a statute that required
a girl to obtain permission from either one parent or a judge, and noted that
Supreme Court case law had required states to allow a "judicial bypass" as a
substitute for parental consent.
Childbirth
Are there
any rules prohibiting parents from having their children born at
home?
No. Generally, at-home births are an option for parents. The
mother, however, should have good prenatal care, and she should make sure the
health-care provider believes the delivery will not pose significant risks to
the mother or the child. If the delivery is risky for the mother or the child,
it is simply common sense to use a hospital. Some states allow nurse-midwives to
deliver children at the parents' home or at a birthing center. Other states
allow nurse-midwives to practice only at hospitals or under the direct
supervision of a physician.
If the delivery is at a hospital,
may the father or a sibling be present?
Most hospitals permit the father to
be present at birth. Hospitals often prefer that the father and mother go
through some prenatal training before the delivery. Couples should check with
their hospitals about other rules and about whether siblings are allowed in the
delivery room.
LAW
ENFORCEMENT GUIDE
Family Law
Video
