Expectant Fathers,Abortion,and Embryos

See, e.g., Purvis D. E. , “Intended Parents and the Problem of Perspective,” Yale Journal of Law & Feminism 24, no. 2 (2012): 210–253.

See Purvis D. E. , “The Origin of Parental Rights: Labor, Intent, and Fathers,” Florida State University Law Review 41, no. 3 (2014): 645–696.

See Reber v. Reiss, 42 A.3d 1131 (Pa. Super. 2012), discussed infra Section II.A.

Hochschild A. R. Machung A. , The Second Shift (New York: Penguin Books, 2003): At 4; Sanchez L. Thomson E. , “Becoming Mothers and Fathers: Parenthood, Gender, and the Division of Labor,” Gender and Society 11, no. 6 (1997): 747–772, at 765.

See Greenhouse L. Siegel R. B. , “Before (and After) Roe v. Wade: New Questions About Backlash,” Yale Law Journal 120, no. 8 (2011): 2028–287, at 2042–243; see also Ziegler M. , “Abortion and the Constitutional Right (Not) to Procreate,” University of Richmond Law Review 48, no. 4 (2014): 1263–1317, at 1278 (quoting Jan Liebman of the National Organization for Women arguing, “The woman is the one who carries the fetus, and gives birth to it, so she should be the only one to decide whether to carry it to term”).

Steinem G. , “The Verbal Karate of Florynce R. Kennedy, Esq.,” Ms. Magazine , March 1973 (quoting Florynce Kennedy), available at <http://www.msmagazine.com/summer2011/ver-balkarate.asp> (last visited April 14, 2015).

Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 69 (1976).

See, e.g., Bruno C. , “A Right to Decide Not to Be a Legal Father: Gonzales v. Carhart and the Acceptance of Emotional Harm as a Constitutionally Protected Interest,” George Washington Law Review 77, no. 1 (2008): 141–171.

Roe v. Wade, 410 U.S. 113, 165 n.67 (1973).

See, e.g., Lehr v. Robertson, 463 U.S. 248 (1983); Parham v. Hughes, 441 U.S. 347 (1979); Caban v. Mohammed, 441 U.S. 380 (1979); Stanley v. Illinois, 405 U.S.645 (1972).

Danforth, 428 U.S. at 58.

See Ziegler , supra note 5, at 1277.

Id., at 1290.

Danforth, 428 U.S. at 69.

Id., at 93 (White, J., dissenting)

Id., at 90–91 (Stewart, J., concurring).

Id., at 71.

See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

Id., at 895–896. The phrase “a living child raised by both” is important, as unwed biological fathers lack a constitutional interest in their child until they create a substantial relationship with the child. See Purvis , supra note 2. If the biological father is not involved in raising the child, in other words, he lacks a cognizable constitutional interest in a relationship with the child.

Id., at 896.

Hiester E. M. , “Child Support Statutes and the Father's Right Not to Procreate,” Ave Maria Law Review 2 (2004): 213–241, at 214–215.

See Lichtenberg I. D. LeClair J. B. , “Advocating Equal Protection for Men in Reproductive Rights and Responsibilities,” Southern University Law Review 38, no. 1 (2010): 53–78, at 63.

Even further court battles were mooted when the woman miscarried. See Roberts J. , “Ex-Boyfriend Cant' Stop Abortion,” CBSNews.com, available at <http://www.cbsnews.com/news/ex-boyfriend-cant-stop-abortion/> (last visited April 14, 2015); see also Lithwick D. , “Dad's Sad, Mad: Too Bad,” Slate , August 7, 2002, available at <http://www.slate.com/articles/news_and_politics/jurisprudence/2002/08/dads_sad_mad_too_bad.html> (last visited April 14, 2015).

Conley D. , Op-Ed, “A Man's Right to Choose,” New York Times , December 1, 2005, available at <http://www.nytimes.com/2005/12/01/opinion/01conley.html> (last visited April 14, 2015).

H.B. 252, 2009 Leg., 128th Sess. (Oh. 2009), available at <http://archives.legislature.state.oh.us/bills.cfm?ID=128_HB_252> (last visited April 24, 2015).

See Totz M. A. , “What's Good for the Goose Is Good for the Gander: Toward Recognition of Men's Reproductive Rights,” Northern Illinois University Law Review 15, no. 1 (1994): 141–236, at 142–143.

Id., at 177.

See Pahl M. R. , “It Takes Two, Baby: Fathers, the Tort of Conversion, and Its Application to the Abortion of Pre-Viability Fetuses,” Whittier Law Review 24, no. 1 (2002): 221–251.

See S.F. v. State ex rel. T.M., 695 So. 2d 1186, 1187 (Ala. Civ. App. 1996); see also State v. Frisard, 694 So. 2d 1032, 1035 (La. Ct. App. 1997) (alleging that a woman saved semen in a condom after oral sex and used it to impregnate herself).

See Jones R. , “Inequality from Gender-Neutral Laws: Why Must Male Victims of Statutory Rape Pay Child Support for Children Resulting from their Victimization?” Georgia Law Review 36, no. 1 (2002): 411–463, at 432–443.

See, e.g., Bruno C. , “A Right to Decide Not to be a Legal Father: Gonzales v. Carhart and the Acceptance of Emotional Harm as a Constitutionally Protected Interest,” George Washington Law Review 77, no. 1 (2008): 141–171; McCulley M. G. , “The Male Abortion: The Putative Father's Right to Terminate His Interests In and Obligations to the Unborn Child,” Journal of Law & Policy 7, no. 1 (1998): 1–55 (proposing a model statute allowing putative fathers to terminate parental status for several reasons, including that the putative father offered to pay for an abortion); Hiester E. M. , “Child Support Statutes and the Father's Right Not to Procreate,” Ave Maria Law Review 2 (2004): 213–241, at 239–240 (proposing model statute giving biological father the ability to terminate parental status for as long as the biological mother would have access to legal abortion).

See, e.g., Wallis v. Smith, 22 P.3d 683 (N.M. App. 2001); Welzenbach v. Powers, 660 A.2d 1133 (N.H. 1995); Stephen K. v. Roni L., 164 Cal. Rptr. 618 (Ct. App. 1980).

See Wallis , 22 P.3d at 685; Stephen K, 164 Cal. Rptr. at 621 (adding that even had defendant been taking birth control pills, the rate of pregnancy prevention of birth control pills is less than 100%).

Dubay v. Wells, 506 F.3d 422, 426–8 (6th Cir. 2007).

The National Center for Men, available at <http://www.nationalcenterformen.org/index.shtml> (last visited April 14, 2015).

Fairyington S. , “The Parent Trap: Paternal Rights and Abortion,” Elle , March 17, 2013, available at <http://www.elle.com/life-love/society-career/the-parent-trap-paternal-rights-abortion-445117> (last visited April 14, 2015).

Hales S. D. , “Abortion and Fathers' Rights,” in Humber J. M. Almeder R. F. , eds., Biomedical Ethics Reviews: Reproduction, Technology, and Rights (Totowa: Humana Press, 1996): 5–26, at 11–12; see also Owens L. L. , “Coerced Parenthood as Family Policy: Feminism, the Moral Agency of Women, and Men's ‘Right to Choose,”’ Alabama Civil Rights & Civil Liberties Law Review 5 (2013): 1–33, at 18 (“Though he cannot choose whether or not a biologically-related fetus will be carried to term, the man should have the choice whether to actually be a parent (in the legal and social senses), even when he cannot decide whether he will become a biological parent.”); Jacobs M. B. , “Intentional Parenthood's Influence: Rethinking Procreative Autonomy and Federal Paternity Establishment Policy,” American University Journal of Gender, Social Policy and the Law 20, no. 3 (2012): 489–508 (questioning “why a man who has no intent or desire to be a father should be adjudicated a legal father against his will”).

See Hiester , supra note 31, at 213 n.4.

Fairyington S. , “The Lonely Existence of Mel Feit, Men's-Rights Advocate,” The Atlantic , January 24, 2013, available at <http://www.theatlantic.com/sexes/archive/2013/01/the-lonely-existence-of-mel-feit-mens-rights-advocate/267413/> (last visited April 14, 2015).

Gaynor M. , “The Lesson of ‘Roe v. Wade for Men’: Making Abortion a Right Was Wrong,” RenewAmerica.com, March 10, 2006, available at <http://www.renewamerica.com/columns/gaynor/060310> (last visited April 14, 2015); see also Lopez K. , “Abortion Leads to Emotional Damage for Men, Too,” The Grand Island Independent , March 25, 2006, available at <http://www.priestsforlife.org/clippings/2006/06-03-25men.htm> (last visited April 14, 2015).

Planned Parenthood v. Casey, 505 U.S. 833, 927–28 (1992) ( Blackmun J. , dissenting in part).

In the context of abortion, where prochoice advocates and the core holdings of Roe v. Wade and other abortion cases see the autonomy of the pregnant woman as central to the question, antiabortion advocates believe the status and attendant rights of the fetus as a person should decide the question. In pre-embryo disputes, many people would similarly grant the pre-embryos a right to life (and thus right to be implanted and developed to term), so the characterization of such disputes as expectational interest versus expectational interest is incomplete. Because none of the cases I will discuss treat preembryos as persons, however, the analysis is not altered by this caveat.

See Sanger , About Abortion, supra note 38, at 862.

Use of the term pre-embryo versus embryo is disputed. On the one hand, many courts and commentators have found the distinction helpful, often using a rubric that a pre-embryo is developed at most for fourteen days and is not yet implanted in a woman's uterus. See Davis v. Davis, 842 S.W.2d 588, 592–94 (1992); Weber S. A. , “Dismantling the Dictated Moral Code: Modifying Louisiana's In Vitro Fertilization Statutes to Protect Patients' Procreative Liberty,” Loyola Law Review 51, no. 3 (2005): 549–601, at 559–560. On the other, the term pre-embryo has been criticized as an artificial distinction aimed at creating a moral or conceptual divide where none exists. See Zekan Makdisi J. M. , “Genetically Correct: The Political Use of Reproductive Terminology,” Pepperdine Law Review 32, no. 1 (2004): 1–37, at 5–17. For specificity and ease of use, I use the term pre-embryo.

See Upchurch A. K. , “The Deep Freeze: A Critical Examination of the Resolution of Frozen Embryo Disputes through the Adversarial Process,” Florida State University Law Review 33, no. 2 (2005): 395–435, at 399–400.

See Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998).

Id., at 180; see also Robertson J. A. , “Precommitment Strategies for Disposition of Frozen Embryos,” Emory Law Journal 50, no. 4 (2001): 989–1046, at 1006.

See In re Marriage of Dahl and Angle, 194 P.3d 834 (Or. App. 2008); Roman v. Roman, 193 S.W.3d 40 (Tex. App. 2006); Litowitz v. Litowitz, 48 P.3d 261 (Wash. 2002) (en banc).

In re Dahl and Angle, 194 P.3d at 837.

See In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003).

Coleman C. H. , “Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes,” Minnesota Law Review 84, no. 1 (1999): 55–127, at 59.

See Strasser M. P. , “You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce,” Buffalo Law Review 57, no. 4 (2009): 1159–1225.

See In re Witten, 672 N.W.2d 768. One case from Massachusetts used the contemporaneous mutual consent approach, but only after determining that the written agreements as to disposition of the stored pre-embryos were unenforceable because the ex-husband signed blank consent forms, which his ex-wife filled in later stating that in the event of separation their wishes were that the pre-embryos be implanted in the wife. See A.Z. v. B.Z., 431 Mass. 150 (2000).

See Davis v. Davis, 1989 WL 140495 (Tenn. Cir. Ct. 1989).

See Davis v. Davis, 1990 WL 130807, *2 (Tenn. App. 1990).

Davis v. Davis, 842 S.W.2d 588, 598 (Tenn. 1992).

Id., at 603.

Id., at 604; see also Davis, 1990 WL 130807, at n.1.

Davis, 842 S.W.2d at 604.

See J.B. v. M.B., 783 A.2d 707, 711 (N.J. 2001) (quoting J.B. v. M.B., 331 N.J. Super. 223, 232 (2000)).

Id., at 720.

See Reber v. Reiss, 42 A.3d 1131, 1133 (Pa. Super. 2012).

Id., at 1134.

Id., at 1142.

Szafranski v. Dunston, 993 N.E.2d 502, 503 (Ill.App. 1 Dist. 2013).

Id., at 505.

Id., at 517–518.

Kass v. Kass, 696 N.E.2d 174, 179 n.4 (N.Y. 1998).

This is in contrast to the approach taken in other countries. For example, Israel gives significant weight to the desire to become a parent through use of frozen embryos. See. Waldman E. , “Cultural Priorities Revealed: The Development and Regulation of Assisted Reproduction in the United States and Israel,” Health Matrix: Journal of Law-Medicine 16, no. 1 (2006): 65–106.

See Cohen I. G. , “The Right Not to be a Genetic Parent?” Southern California Law Review 81, no. 6 (2008): 1115–1196, at 1194–1195.

See Madeira J. L. , “Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy,” Maryland Law Review 71, no. 2 (2012): 339–410.

One scholar who argues that courts should more strongly credit the difficulty that older unpartnered women face in becoming mothers supports her argument with data on what she terms “disappearing dads,” explicitly arguing that courts should credit the emotional stake held by women because men view fatherhood as simply writing checks. See Waldman E. , “The Parent Trap: Uncovering the Myth of ‘Coerced Parenthood’ in Frozen Embryo Disputes,” American University Law Review 53, no. 5 (2004): 1021–162.

Davis v. Davis, 1989 WL 140495 (Tenn. Cir. Sept. 21, 1989).

Davis v. Davis, 842 S.W.2d 588, 590 n4 (Tenn. 1992).

Reber v. Reiss, 42 A.3d at 1139.

See, e.g., In re A.C., 533 A.2d 611 (D.C. 1987); Jefferson v. Griffin Spaulding County Hospital Authority, 274 S.E.2d 457 (Ga. 1981).

See Parness J. A. , “Pregnant Dads: The Crimes and Other Misconduct of Expectant Fathers,” Oregon Law Review 72, no. 4 (1993): 901–918, at 906–908; Johnsen D. , “Shared Interests: Promoting Healthy Births without Sacrificing Women's Liberty,” Hastings Law Journal 43, no. 3 (1992): 569–614, at 571.

See Fernandez M. Eckholm E. , “Pregnant, and Forced to Stay on Life Support,” New York Times , January 7, 2014, at A1.

Matsumura K. T. , “Public Policing of Intimate Agreements,” Yale Journal of Law & Feminism 25, no. 1 (2013): 159–215, at 189 & n.230 (quoting Blankenhorn D. , Op-Ed., “How My View on Gay Marriage Changed,” New York Times , June 22, 2012, available at <http://www.nytimes.com/2012/06/23/opinion/how-my-view-on-gay-marriage-changed.html> (last visited April 14, 2015)).