Whose Delivery Is It Anyway?

Whose Delivery Is It Anyway?

by Ariel Chesler

I had the privilege and honor of being with my wife in the delivery room for the birth of both of our daughters. I shared in the emotions, both high and low, during her labor, and experienced the fear and joy of welcoming new life. 

As painful as it might have been to be excluded from the experience of seeing my children born, it is clear to me (both personally and legally) that if my wife did not want me present in the delivery room, that is her choice to make. 

One New Jersey man felt differently. In a recently published opinion from the Superior Court of New Jersey for Passaic County, the question was raised: Does a father’s right to see his child born trump that of the mother to keep him out of the delivery room? Superior Court Judge Sohail Mohammed answered: “Any interest a father has before the child’s birth is subordinate to the mother’s interests.”

While those with a basic working knowledge of reproductive and patients’ rights may find this answer obvious and redundant, it is important to consider that litigants dealing with family disputes are often ruled by their emotions, making legal arguments for relief without regard to their merits or likelihood of success.

The court, however, must resolve disputes brought before it based on case law, giving full consideration to the arguments of the parties, even those with little legal merit. In the New Jersey case, the court was asked to consider a claim which may have had little merit but was in fact novel. Indeed, the court noted in its decision that the issue had “never been litigated in New Jersey or the United States.”

The case concerned Rebecca DeLuccia and Steven Plotnick, who conceived a child and became engaged, but later separated in 2013. While there was no dispute that Plotnick was the father or that he would be entitled to visitation after the birth, he sought a declaration of his right to be present at the birth. DeLuccia, on the other hand, desired privacy during labor. She said she would put Plotnick’s name on the list of visitors for after the delivery.

In a well reasoned decision, Judge Mohammed, relying on the landmark decisions in Roe v. Wade and PlannedParenthood v. Casey, noted that women have a fundamental right of privacy that includes the right to control their bodies during pregnancy, and that these cases make clear that in this context the interests of a father are subordinate to a mother. In particular, he noted that the requirement of spousal notification before an abortion was found in Casey to be an undue burden on the mother.

Judge Mohammed also pointed out that the court in Casey also considered women who elect to carry a child to full term, stating “the mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.”

Noting that Plotnick and DeLuccia had never been married, Judge Mohammed concluded that Plotnick’s rights are even less than those of a husband’s which would still be subordinate to the wife’s interests. In this regard, Judge Mohammed stressed that only DeLuccia had gone through extensive training in preparation for the birth and had faced the physical burdens of carrying a fetus to term on her own, which supported the conclusion that her rights are superior to Plotnick’s.

Plotnick had also argued that he had a right to be notified when DeLuccia enters labor. In denying that claim as well as the claim of a right to be present for the birth, Judge Mohammed relied on DeLuccia’s basic right of doctor-patient privilege, the privacy rights afforded by HIPPA, and the privacy rights afforded by the New Jersey Hospital Patient Bill of Rights, which, among other things, prohibits hospitals from disclosing the names of its patients.

Judge Mohammed also remarked that allowing a forced entry into the delivery room would “in fact be inconsistent with existing jurisprudence on the interests of women in the children they carry pre-birth. It would create practical concerns where the father’s unwelcomed presence could cause additional stress on the mother and child. While praising Plotnick’s desire to be involved in the child’s life from inception, in the end the court found that it could not discount the privacy interests of an expectant mother.

Father’s rights groups are decrying the ruling as “another example of New Jersey’s anti-male discrimination in the family courts.” They conveniently ignore the controlling law and the relevant biological realities. While it may take both sperm and egg to create a fetus, it is only the mother who faces the burdens and risks of carrying the fetus within her body. Put another way, until the baby is born there is no way to separate the mother from the fetus, and, thus, she should be able to decide the circumstances of her labor and delivery.

So while I strongly support the increased involvement of fathers in raising children and believe it may be worthwhile to question historical limits on father’s roles in child rearing and how such perceptions of fathers may play into custody and visitation disputes, it cannot be said that this ruling is an example of “baseless discrimination.” Rather, it is discrimination grounded in reality, one that properly recognizes and favors the privacy rights of mothers.

Ariel Chesler is an attorney and blogger/writer. He lives in New York with his wife and two daughters, and one cat. He is the son of feminist author and psychologist Phyllis Chesler.