WJR&B | Publications

Michael L. Jackson, Fatherhood and the Law: Reproductive Rights
and Responsibilities of Men, 9 Tex. J. Women & L. 53 (1999)

[This article was published originally in the Texas Journal of Women and the Law, Vol. 9, Issue 1, Fall 1999. Copyright © 1999 Michael L. Jackson, all rights reserved. This article may be reproduced and distributed to students for classroom use at or below cost. Any other duplication, publication, or distribution without the express written consent of the author is expressly prohibited. For any questions about the use, duplication, publication, or distribution of this article, please contact Michael L. Jackson at mlj@wallacejordan.com. For more information about the author, click here. Please note that some of the formatting in the article, such as large and small capital font style in the citations, did not convert exactly to the HTML format, and there may be some inconsistencies in fonts, styles, and format, particularly in the footnotes. Opinions expressed in the article are not necessarily those of Wallace, Jordan, Ratliff & Brandt, L.L.C. or of the Texas Journal of Women and the Law.]

Fatherhood and the Law: Reproductive Rights and Responsibilities of Men

Michael L. Jackson ^*

We start from the premise that women are equal in the public sphere; we should start from the premise that men are equal as parents.^[1]

I. Introduction

II. Currently: Dissimilar Rights

A. Before the Child is Born

B. After the Child is Born
1. Conventional Reproductive Arrangements and Adoption
2. Collaborative Reproductive Arrangements: Donors and Surrogates

The public and the legal community have given much attention to the reproductive liberty of women. Much less attention has been given to the same liberty of men. As a result, the approach the law takes to men's and women's reproductive rights and responsibilities is not always consistent. In many situations, women are given more rights solely on the basis of their sex, and there are some situations in which men are given fewer responsibilities than women.

This article will explore what the rights and responsibilities are, point out some of the divergent areas, investigate whether these differences are justified, and consider possible alternative policies that might result in more equal treatment of the sexes. Specifically, this article will examine the rights and responsibilities of men and women in both traditional reproductive arrangements and other less conventional assisted reproductive arrangements both before and after the child is born. The moral or legal justifications for a right to an abortion or the more general rights of privacy and reproductive freedom are, however, beyond the scope of this article and are assumed to be valid under current law.^[2] Similarly, the desirability of "collaborative" reproductive arrangements is also beyond the scope of this article. Section II examines the current state of the law with respect to the rights and responsibilities of men and women and demonstrates that while men and women are treated relatively equally by the law with respect to their responsibilities, men are not afforded similarly equal rights. Then, Section III queries whether the different treatment of men and women with regard to their rights and responsibilities is justified. Finally, Section IV proposes alternative approaches that attempt to treat men and women more equally. Each section is organized around the issues both before and after the child's birth.

As early as the conception of a child and its presence within the mother's womb,^[3] the respective rights of the mother and father with regard to making decisions about the pregnancy are inconsistent. Under the U.S. Supreme Court's decision in Planned Parenthood v. Casey,[4] a mother has a right to abort her child^[5] for any reason until the point of viability.^[6] Upon viability, the state may prohibit abortion where "the life or health of the mother is not at stake."^[7] However, the father of the child has no right whatsoever to prohibit the mother from aborting their child.^[8] A state may not even legally require that the father be notified before the child is aborted, even if he is married to its mother.^[9] Although there are no cases holding as such, it is almost inconceivable that a state could allow the reverse case; that is, to permit a father to have his child aborted against the mother's wishes.^[10] In short, while a mother has an almost absolute right to abort her child, a father has the right neither to participate in the decision to do so nor to know of the abortion.

The responsibilities of the mother and father once a child is conceived coitally and is present within the mother's womb are somewhat more consistent than their respective rights, but they are not completely parallel. They also vary more from state to state than do the rights before birth. If the mother decides not to abort and to carry the child to term, she may be required to undergo significant bodily invasion for the benefit of her unborn child.^[18] She may also be held responsible for prenatal conduct that may result in avoidable harms to her child.^[19] For instance, some courts have given stiffer sentences to pregnant women guilty of drug abuse than to non-pregnant offenders to prevent them from harming their unborn child.^[20] While resultant criminal and civil liability are possible in theory, this responsibility is most often reflected in the termination of the mother's parental rights to a child to whom she has caused avoidable harm.^[21] The father, like the mother, may be held responsible for conduct resulting in avoidable harms to his child, but instances of criminal or civil liability of fathers are even more rare than those of mothers.^[22] A father has a responsibility not only not to cause harm to his child but also has an affirmative obligation in many states to provide financial support for the mother during her pregnancy.^[23] The result of not fulfilling this responsibility is termination of his parental rights.^[24] In short, both mother and father have a responsibility not to engage in conduct that would result in harm to their child. However, the father has an additional responsibility to support the mother while pregnant with their child.

After the child is born, the mother of the child still has more rights than does the father, in most states. However, if a distinction is made between married and unmarried parents, married parents are treated more equally with regard to their rights in their children than unmarried parents. Additionally, unmarried fathers usually have fewer rights than unmarried mothers.^[25] While the U.S. Supreme Court has recognized that an unmarried father who demonstrates a "full commitment to the responsibilities of parenthood by 'coming forward to participate in the rearing of his child'" has a protected interest in contact with his child under the due process clause of the Fourteenth Amendment,^[26] the Court has also held, with regard to unmarried fathers, that "the mere existence of a biological link does not merit equivalent constitutional protection."^[27] The Court held in Michael H. v. Gerald D.[28] that a biological father has no constitutionally protected interest in contact with his child where the mother of the child is married to another man and was married to him at the time of the child's birth and conception.^[29] The Court has not ruled on the reverse situation--where there is a married father and an unmarried mother, and the mother was denied contact with her child by the state solely on the basis of the father's marital status--because this situation would not arise under the laws of any state. Conversely, the California law denying biological fathers contact with their children where the mother is married to another man is not a unique provision.^[30]

For example, in In re Doe,^[35] a mother, Mary, gave up her child, John, for adoption despite the fact that she knew the father, Richard, wanted to raise the child.^[36] Richard challenged the adoption, but the court held that written consent was not necessary because it found that Richard had abandoned Mary while pregnant and his child after birth. The court drew this conclusion despite the fact that the father had given some support to the mother before she fled to another state, that he offered to marry her after she fled, and that he did not know where she was or even that his child had been born. Although the appeals court reversed the judgment of the trial court, the Florida Supreme Court reinstated it, holding that Richard failed to show a settled purpose[37] to assume parental duties. Although becoming less common, even where the father comes forward and there is a hearing before the adoption, there have been cases in which his rights were terminated without his having done anything wrong.^[38]

In contrast, mothers do not lose their parental rights without their consent in these situations.[39] A different standard applies to fathers. As Jeffrey Parness has pointed out, a "father's constitutional interests in parenthood thus require some affirmative acts beyond procreation,"^[40] whereas a woman's interests are established biologically.^[41] Although it is not the situation in every state,^[42] men are being denied rights to their children in some situations in which women would not.

The responsibilities that exist before birth continue after birth. Both parents have an obligation to provide basic necessities to their children, to refrain from harming them, and to refrain from placing them in danger.[43] While technically state laws governing parental responsibilities to children after birth treat both parents fairly equally, in practice unmarried fathers frequently avoid their responsibilities to provide for their children and often have no contact with them with no legal consequences.[44] Therefore, while the law is not facially discriminatory with regard to parental responsibilities as it is in regard to parental rights, in reality many women bear most of the responsibility for rearing their children while many men avoid their responsibility or provide merely financial support. Therefore, either the law is ineffective, or it is ineffectively enforced.

State courts are also divided on surrogacy arrangements. The best-known court decision is the New Jersey case of In the Matter of Baby M.[55] in which the court declined to enforce the agreement, awarded custody to the biological father, and gave the genetic and gestational mother visitation rights as a noncustodial parent.^[56] California and Massachusetts courts have also declined to enforce such agreements,^[57] although California has enforced a gestational surrogacy agreement where the surrogate was implanted with an embryo formed from the gametes of the intended parents.^[58] On the other hand, the Kentucky Supreme Court allowed the enforcement of a surrogacy contract in Surrogate Parenting Associates, Inc. v. Commonwealth ex rel. Armstrong,[59] although the case was later overruled by a legislative enactment.^[60]

Artificial insemination with donated sperm (AID) is much more common than surrogacy.^[61] There is inconsistent treatment of sperm donors among the states, but a majority of states have enacted some legislation governing artificial insemination in at least some circumstances.^[62] The majority of states provide that the consenting husband of a married woman inseminated with donor sperm is the legal father and that the donor has no parental rights or duties.^[63] For example, New York, among many others, has enacted a statute that makes the husband the legal father and cuts off the parental rights of a sperm donor whose sperm is used to inseminate a married woman under the supervision of a licensed physician.^[64] With regard to unmarried women inseminated with donor sperm, whether living alone or cohabitating with a male or female paramour, the situation is more complicated. Some states exclude the donor and treat the unmarried woman the same as a married woman.^[65] However, other states have held that a sperm donor may assert his parental rights in situations where the inseminated woman is unmarried and the procedure is not performed by a statutorily-required licensed physician.^[66]

In fact, the trend is that if a statute exists that permits the rights of the donor to be extinguished, the statutory provisions must be strictly adhered to in order to extinguish the donor's parental rights.^[67] For example, in the California case of Jhordan C. v. Mary K., Mary decided to bear a child by artificial insemination and raise it with her friend Victoria. She chose Jhordan to be the sperm donor, and the artificial insemination was accomplished without the involvement of a physician. Although there was conflicting testimony as to what their agreement was with regard to Jhordan's role in the resulting child's life, Jhordan was listed as the father on the birth certificate and was permitted to develop a paternal relationship with the child through visitation. The court held that the California statute that cut off the parental rights of a sperm donor where the donor's semen was provided to a licensed physician was not applicable because no physician was involved. The appellate court affirmed the trial court's recognition of Jhordan's parental rights, holding, "where impregnation takes place by artificial insemination, and the parties have failed to take advantage of this statutory basis for preclusion of paternity, the donor of semen can be determined to be the father of the child in a paternity action."^[68] In a similar case, Thomas S. v. Robin Y.,[69] a New York court took the same approach, stating, "Absent strict adherence to statutory provisions, termination of those [parental] rights is in violation of well established standards of due process and cannot stand."^[70]

Similarly, a statute cutting off the parental rights of a donor may not be applied if there has been an agreement between the donor and recipient that the donor would have a paternal relationship with the resulting child and if the donor has engaged in conduct consistent with the assertion of parental rights. For example, in In re R.C.,[71] the donor was known to the recipient and, although the donation of semen included a physician's involvement, there was some evidence that the parties had agreed to treat the donor as the father of the child. The court held:

Although most states have not yet addressed egg donation, those states that have addressed the issue have treated egg donors similarly to sperm donors.^[73]

A man's interests in children he has fathered and raised have been recognized in other Supreme Court cases,^[78] as has his interest in procreative liberty.^[79] This procreative right or interest prohibits the state from imposing restrictions both on having children as well as on avoiding children.^[80] Federal regulations require a man's consent before conducting medical research on a woman pregnant by him or on a human fetus in utero or ex utero that was fathered by him, provided that he is competent, his whereabouts can be reasonably ascertained, and he is reasonably available, unless the pregnancy resulted from rape.^[81] These regulations clearly recognize the father's interest in his unborn child. Furthermore, the Supreme Court has held that a sex-based distinction between unmarried fathers and unmarried mothers violates the equal protection clause of the Fourteenth Amendment unless it bears a "substantial relation" to an "important state interest."^[82]

The Court pointed out in Casey and Danforth that "when the wife and the husband disagree on [the abortion] decision, the view of only one of the two marriage partners can prevail"^[83] (and the same would hold true for unmarried couples). So, on what basis does the Court hold that a woman's interest in procreative liberty is more important than a man's?The Court says that "it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, [so] the balance weighs in her favor."^[84]

It would seem from Caban that a gender-based rule--for example, a rule that the woman's right always outweighs the man's --would violate the equal protection clause.^[85] While no one will deny that a woman does have a more immediate physical burden, the Supreme Court does not explain why a gestational burden alone allows one person's constitutional interest in procreation to trump another's. Where is the important state interest in making this gender-based distinction?^[86] There are many burdens associated with bearing and rearing children; to pick one--a woman's gestational burden--and make it the justification for giving the woman all of the decision-making power is unfair to men. It is not as if a man could take on the burden himself.^[87] By allowing the woman to have all of the decision-making power, the Court imposes burdens on the father that may be unwanted. A father cannot avoid rearing burdens if a mother carries their child to term against his wishes.Over the lifetime of a child the financial burden alone can exceed $100,000.^[88] To prevent a woman from avoiding gestational burdens (in other words, to require a woman to carry or attempt to carry a child to term), if the father of their child wishes to do so, is not unreasonable, especially since these burdens resulted from voluntary acts with knowledge of the risks.^[89]

In Roe v. Wade,[90] when the Court first announced the right of a woman to abort her child, the physical gestational burden was but one of many considerations (and was hardly mentioned).^[91]The Court considered such factors as possible medical and psychological harm, a distressful life and future from additional offspring, the toll of rearing children on mental and physical health, inability to care for the child, and the stigma of unwed parenthood.^[92] Except for possible medical harm, all of these factors apply to men as well as to women. An exception could be made for situations in which medical harm is a real threat, but pregnancy entails medical risk to the woman regardless of whether the child is aborted or carried to term.Additionally, if there is no identifiable threat to a woman carrying the child, she may quite possibly increase her medical risk by submitting to an abortion.^[93]

Furthermore, the interest involved in procreative liberty is not primarily a short-term interest; it is the lifetime interest in a child.The interest in procreation is only the interest in the new life that results. Thus, to override the father's long-term interest in bringing into the world a new life because of a nine-month physical burden on the mother is short-sighted.Further, the justification that the physical burden of gestation is substantial is lessened by the fact that when the gestational burdens become greatest in the later stages of pregnancy, the state can override both the father's and mother's interests. The justification for the state's ability to supersede a man's interest and deny him any say in the decision to abort or not to abort his child on the basis of a short-term gestational burden on the woman is weak. Even if we assume for the sake of argument that the woman's gestational burden does give her a stronger interest, other interests such as the state's interest in unborn life or the unborn child's interest in combination with the father's interest may be able to override her interest.^[94] Finally, even if the equal protection clause does not require a man to have a say in the abortion decision, a state should be able to recognize the father's interest and give him some decision-making power. Even if such recognition is not required by the Constitution, it should not be held to be prohibited by it.^[95]

The case for prohibiting states from granting a father a right to be informed of the mother's decision to abort their child is even weaker than the case for prohibiting the father from having a say in the decision. In Casey, the Court justifies striking down a statute granting husbands a right to be informed before their wife aborts their child on the basis of the district court's findings of fact that the majority of women consult their husbands before deciding to abort; that a husband may threaten or inflict physical or psychological harm on his wife or other family members; that a husband may inform others of the wife's decision; that a wife may not elect to notify her husband of her intention to have an abortion because of concerns over her or her husband's health or over the marriage; that the required filing of the spousal consent form would invade a woman's privacy; that mere notification of pregnancy is frequently a flashpoint for violence within the family; that secrecy typically shrouds abusive families, and a battered woman is unlikely to disclose the violence against her even when confronted directly by professionals offering help; and that because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions of the act, regardless of whether the section applies to them.^[96]

These findings that the Court cites to justify its striking down the notification provision can be summarized into three basic justifications: (1) some women (and/or their children or other family members) will be beaten, raped, or otherwise physically or psychologically abused by husbands if they tell them; (2) some husbands will tell others about the wife's decision; and (3) women will not use the exceptions provided when they apply. The Court decided that these findings place an "undue burden" on a married woman's right to abort her child.^[97]

Beginning with the first justification, the fact that a few fathers will break the law if notified does not mean that a state should not be able to recognize the interests of the law-abiding fathers through a notification requirement. The right to obtain an abortion is a right to be free from undue state interference,^[98] but it is not a right to be free from all state interference.^[99] Recognizing a father's constitutionally-protected interest in procreation with a notification law that leaves the ultimate decision with the woman can hardly be said to be "undue" merely because a few husbands will break the law. If the husband interferes through lawful means, such as non-threatening verbal persuasion, that is an exercise of his right and is not state interference. If he interferes by breaking laws, he can and should be prosecuted under those laws. The Court's reasoning punishes the law-abiding majority for the crimes of the minority.

As to the second justification, the Court is essentially saying that because a husband might tell others about his wife's abortion decision, states may not require that he be notified. In effect, it is saying that the mother's interest in not having others know of her decision outweighs any attempt to recognize the father's interest in his unborn child. It seems odd to deny states the power to recognize a father's constitutionally protected interest in procreation through a notification law solely because of the possibility--speculative at best--that he will exercise the even more protected constitutional right of free speech.^[100]

With regard to the third justification, a woman's choice not to exercise her rights is not a sufficient reason for denying rights to another. Because a few women who are abused will not take advantage of an exception to the law requiring them to notify their husbands before an abortion, Casey bars the state from recognizing a father's interest through a notification requirement. The Court admits that "[i]n many cases in which married women do not notify their husbands, the pregnancy is the result of an extramarital affair" and that "[w]here the husband is the father, the primary reason women do not notify their husbands is that the husband and wife are experiencing marital difficulties, often accompanied by incidents of violence."^[101] These situations are the major exceptions to the notification provision the Court was considering.^[102] The law was tailored to provide for the concerns of the Court, yet the Court dismisses the statutory exceptions out of fear that they will not be used, and the law will be an obstacle to a woman's obtaining an abortion. Yet, the Pennsylvania law at issue in Casey seems to bend over backwards to make sure a woman is not coerced into not aborting her child while still attempting to recognize the father's significant interest in his unborn child.

The Court ignores the interests of the husband and the state when it says that a husband cannot be given a right to be notified of his wife's intention to abort his child because a few men may break spousal abuse laws, because a few men may exercise their rights of free speech and tell someone else about her intentions, and because a few women may not take advantage of applicable exceptions to the notification law. That a father has a significant interest in procreation has already been shown.^[103] The Court in Casey gave only lip service to the father's interest, discounting it before birth because "it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy."^[104] The Court focuses too narrowly on a woman's short-term interests and fails to sufficiently consider the long-term interests of parents in their children.

The Court also fails to recognize the state's interests. Roe v. Wade held that a state's interest in unviable human life was not sufficient to override a woman's right to abort her child,^[105] but such a holding does not mean that other state interests are not sufficient to overcome the interest of the woman in obtaining an abortion without any interference before viability of her unborn child.^[106] The state has a legitimate interest in promoting "the integrity of the marital relationship"^[107] and in strengthening family life.^[108] Improving communication about an issue such as procreation, which is at the heart of marriage and the family, is directly related to these recognized state interests. These state interests, combined with a father's interest in his unborn child and the state's interest in prenatal life,^[109] are sufficient to permit the minimal restriction of requiring a married woman to notify her husband before aborting their child.

Without a notification requirement, there may be a misunderstanding between the spouses. The wife may get an abortion under the misconception that her husband does not want children. A woman may see the child as a threat to her career or other plans and abort without informing her husband when he might want to have the child and would be willing to adjust his career plans to care for the child. There are any number of reasons why a woman may get an abortion without telling her husband; all a notification requirement does is give him an opportunity to convince his wife not to do it or to clear up misunderstandings. As the Court said in Casey with regard to the informed consent requirement, "What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so."^[110] A notification requirement would at least give some recognition to the father's interest in his child.

With regard to responsibilities, the primary disparity before birth is that a man has a responsibility to support the mother while pregnant with their child. However, this disparity seems to be justified. Biology requires the woman to support the child during pregnancy (unless she aborts it), so requiring the man to take some responsibility during this period as well is reasonable. Mothers are required to undergo significant bodily invasions, such as cesarean sections, for the sake of their children in some circumstances,^[111] but there are very few, if any, circumstances where such a bodily invasion of a father would be necessary.[112] If such an invasion of the father were necessary for the child, it would be unfair not to require him to submit to it if a mother would be required to in similar circumstances.^[113]

Men, particularly unmarried men, are routinely discriminated against with regard to their rights in their children after they are born. In many states biological fathers are denied any rights in their children because the mother is married to another man. The result would not be the same, however, if the mother were unmarried and the father were married to another woman. The justification for cutting out the biological father in Michael H. was a legislative determination of social policy that the husband of the mother should be conclusively presumed to be the legal father to protect the "integrity of the family unit" by preventing destructive inquiries into the child's paternity.^[114] The irrebuttable presumption of paternity in favor of the husband was traditionally based on "an aversion to declaring children illegitimate" and an "interest in promoting the 'peace and tranquillity of States and families.'"^[115] The Court also stated that the husband of the mother has an interest and the state is entitled to choose whose interest to recognize when the interests conflict.^[116] Finally, the Court based its upholding of the denial of the biological father's rights in his child on tradition.^[117]

Cases are more unjustifiable if they are like Richard Roe's,^[121] in which the parents are both unmarried and the state allows the mother to give their child up for adoption without the consent of the father.^[122] While a state has interests in the facilitation and finality of adoptions, such interests do not justify denying all due process protections, such as notice and a hearing, to the unmarried father. Requiring that notice be given to an unmarried father whose location was known and that reasonable attempts be made to locate those whose location was not known would not unreasonably hinder the interests of the state; such action would also give fathers who did not know where the mother of their child was--or even that they were prospective fathers--the opportunity to assert their interests in their children.^[123] Simply requiring evidence of a diligent search for the father when his whereabouts are unknown is not a highly burdensome requirement on those seeking the adoption. Where the father does come forward and obtains a hearing, there is no justification for the state's denying the father his rights to his child unless there is conduct on the part of the father that would be sufficient grounds for termination of parental rights of any parent--male or female, married or unmarried. No state allows unmarried fathers to give their children up for adoption over the objection of a mother who has done nothing wrong;^[124] likewise, no state should be able to allow the reverse scenario.

With respect to parental responsibilities after birth, the law is not inequitable, but inequitable results occur because of problems with enforcement. In divorce or out-of-wedlock situations where the law must allocate responsibilities between the parents, allocation on the basis of gender is not permitted.[125] However, physical custody and the rearing responsibilities that usually goes with it are usually given to the mother, in part because most fathers do not seek custody.[126] While there are situations in which fathers avoid responsibility and fail to pay support to their children and mothers are burdened with nearly all of the responsibility of rearing their children, these situations are in violation of law. Such disparity of actual responsibility is unfair to mothers, and better enforcement of child support obligations is needed to remedy existing inequities.

While the law is still developing in the area of collaborative reproduction, particularly in the area of egg donation, sperm donors and egg donors who donate to married women are generally treated similarly, especially if the donation is through a licensed physician.^[127] At this time there does not appear to be any reported case in which an egg donor, who was not also a gestational surrogate, attempted to assert parental rights and a court had to decide whether to recognize the birth mother, the genetic mother/egg donor, or both, as the legal mother or mothers. Because of the paucity of authority relating to egg donor disputes (excluding those involving surrogates who were also egg donors), it is difficult to say how the law will develop with regard to disputes between egg donors and recipients. However, it could be that sperm donors to unmarried women would be successful more often in asserting parental rights than egg donors to unmarried women because courts and legislatures may wish to provide a parent of each sex for the resulting child; such justification would afford a sperm donor, but not an egg donor, parental rights. The same interest in having one parent of each sex may justify treating sperm donation to married women differently from sperm donation to unmarried women.^[128]

In collaborative situations, states have not explored the area of recognizing more than one parent of each sex. For example, in Baby M. the court recognized Mr. Stern, the intended father and biological father under a surrogacy contract, as the legal father, while recognizing Mrs. Whitehead, the genetic and gestational mother under the surrogacy contract, as the legal mother with parental rights.^[130] The intended mother under the surrogacy contract, the wife of the biological father, was not recognized under the law as a mother for the child but was, in the eyes of the law, in the same position as a step-parent.

Similarly, in Johnson v. Calvert, two women had biological ties to the resulting child--one with gestational links and the other, genetic. The court declined to find that both women were mothers of the child and instead found that the woman with the genetic ties was the legal mother.^[131] Thus, states do not recognize more than one person of each sex as a parent of a child or more than two parents for a child.^[132] Given that biology and nature dictate that a child has two biological or genetic parents, one of each sex, and given the deeply-rooted traditional legal recognition of one parent of each sex per child, it is likely that courts would find that the state has an important interest in providing exactly one mother and exactly one father for each child.

A law that results in sperm donors to unmarried women being more successful in asserting their parental rights than egg donors would seem, at first glance, to violate the principles of equal protection. However, such a law could be justified as gender-neutral. The rule could be articulated to state that a gamete donor, whether egg or sperm, will be recognized as a parent if the child has no parent of the same sex as the donor, if the child so desires, and if certain other conditions are present, such as a prior agreement or certain conduct by parties. For example, a sperm donor to an unmarried woman in the circumstances of Jhordan C. v. Mary K. could seek and obtain parental rights, whereas a sperm donor to a married couple, a sterile, unmarried man, or a sterile, homosexual male couple using a surrogate would not be able to obtain parental rights.^[133] Similarly, a woman donating an egg to a single male or homosexual male couple using a gestational surrogate (or some yet to be developed artificial womb or gestation by a male) could seek and obtain parental rights, whereas an egg donor to a married couple or to a single woman or homosexual female couple could not obtain parental rights. Under such a rule, the donors would technically be treated equally, although the situations in which an egg donor is allowed to obtain parental rights would be much more rare than the situations in which a sperm donor would be allowed to obtain such rights.Of course, a rule denying all donors any parental rights, unless there was consent by the intended parent or parents or an adoption, would also treat both male and female gamete donors equally. However these donor issues are resolved, courts and legislatures should treat donors the same in similar situations, without regard to the donor's sex.

Courts and legislatures have not been sensitive to treating sperm donors similarly to gestational services donors. Generally, men who donate sperm have their rights terminated more easily than so-called surrogate mothers or women who donate, or lease for compensation, the use of their wombs, and in some cases their eggs as well. Such disparate treatment might seem to be a violation of equal protection. In most states a donor of sperm to a married couple would not be able to assert any parental rights.[134] In some of those same states, a court would not enforce a full surrogacy contract--in which the surrogate is donating both gestational services and the egg and so was not merely a gestational surrogate--between a surrogate and a married couple.[135] Is it equal treatment to extinguish the rights of the male sperm donor but to allow the egg and gestational services donor to assert her parental rights against the couple?A similar claim was raised, and rejected, in Baby M., although it was from a different perspective.^[136] The only distinguishing basis identified by the court was the additional time involved in the surrogacy as opposed to the sperm donation. While no one would doubt that a surrogate takes on a greater burden than a sperm donor, it is not as if the surrogate is unaware of this burden when she agrees to provide her services and genetic material. Additionally, at least under the reasoning of Johnson v. Calvert,^[137] a surrogate providing only gestational services (but not an egg) to a married couple could not assert her parental rights. However, the additional time and physical burden would be the same for a gestational surrogate or a full surrogate, such as Mrs. Whitehead, who provided both genetic and gestational services. Thus, the additional time and burden does not seem to be the distinguishing factor. As such, treating sperm donors differently from surrogate mothers appears to be unjustifiably unequal.

The Supreme Court currently recognizes the interests of only the mother once a child is conceived and is present within the mother's womb, at least until the point of viability. The justifications for this gender-based distinction are weak. Gender is not a proper criterion for making such distinctions unless an important state interest is served.^[138] However, because one person's interests must prevail over the other's when the parents disagree on whether to abort their child, some criterion for deciding whose interest prevails must be used. One possible criterion is a presumption in favor of the party desiring a certain result. The state could recognize the interest of either the party who wished to abort or the party who did not wish to abort.

If the state chose to recognize the interest of the party who wishes to abort, the result would be to allow a woman to abort whenever she wants, just as she may under current law, and to require her to undergo an abortion whenever the father wants her to abort. Forcing women to undergo abortions is an unattractive alternative. When the parents disagree on the disposition of their frozen human embryos, in Tennessee, the parent seeking to avoid reproduction prevails as long as the other party has a reasonable possibility of achieving parenthood by means other than use of the embryos.^[143] Because the human embryos are outside the woman's body, there is no coerced bodily invasion. Conversely, a forced, highly invasive procedure that deprived a pregnant woman of her child would be repulsive to most Americans.

On the other hand, if the state chose to recognize the interest of the person who does not wish to abort, a father could not force the mother of their child to undergo an abortion, just as he may not do today, but he could prevent her from obtaining an abortion. Prohibiting a woman from aborting her child without the father's consent seems less extreme than requiring a woman to undergo an abortion against her will. Forced abortions would essentially put the state in the position of actively coercing an invasive procedure on a woman to terminate the life of her prenatal child. To many women who oppose abortion, such an act would be no different from executing her postnatal child in front of her. Alternatively, being forced to carry a child to term could be traumatic for a woman, but, by the same token, the undesired abortion of his child could be traumatic for a father as well.^[144] While many are opposed to abortion and think that it is the moral equivalent of murder, few see giving birth as an equivalent evil.

Furthermore, the interest of the state would not have to be compelling to enact a presumption in favor of life for the unborn child. While the state does not have a "compelling" interest in the unborn life until viability,[145] it is not precluded from having some interest even before viability. The balanced interests between the mother and father, the state's interest in unborn life, and the arguable interest of the unborn life itself suggest tilting the balance in favor of life and a state presumption in favor of the party who does not want to abort. Such a position also seems to be supported by popular opinion.^[146] Therefore, in the situation where the father and mother have competing interests, the additional interests of the child and the state in the child's being born, public opinion, and the less extreme measure of merely prohibiting an abortion as opposed to forcing an abortion on someone all weigh in favor of a presumption in favor of the party opposed to aborting the child.

The presumption in favor of the party opposed to aborting the child need not be absolute. Inevitably, there will be situations where the mother does not know the location or even the identity of the father. There will be medical emergencies where the mother's life is endangered. There will be some cases where the woman was raped and became pregnant. There will be other cases of extreme hardship. Exceptions can be made for such circumstances, but where the father is known, is locatable, has not done anything wrong, and the mother is not in danger, his interests should be recognized by the law. Even if consent were not required, at a minimum a notification requirement should be adopted to give the father a chance to persuade the woman carrying his child to continue to do so. Possible abuses by a few men should not be used as an excuse to deny other men some recognition of their reproductive interests. Also, notification places relatively minimal burdens on the woman.Spousal abuse is a serious problem, but denying men some recognition of their reproductive interests is not an acceptable means of dealing with this problem.

Possible remedies for violation of either a consent or notification requirement could include criminal sanctions against doctors and women. Doctors who violate the requirement could be suspended from practice or even have their medical licenses revoked. Facilities that do not comply with the law could be closed. A civil cause of action for damages against doctors or abortion clinics is also a possible remedy.

One problem with requiring spousal consent, or even notification, is enforcement--a problem with almost any law.Enforcement could become even more difficult if an abortion pill, such as RU486, becomes widely available in the United States.^[147] Tight restrictions and regulations on RU486, if made legal, may be one option.

On the other side of the equation, a woman who is denied an abortion because the father of her child refuses to consent pursuant to a consent law could be given a right of monetary recovery for her gestational services.^[148] She could also be permitted to avoid responsibility after birth. However, such remedies are not advisable for the same reasons that we do not permit fathers to avoid responsibility for their unwanted children. One reason fathers are held responsible is to discourage irresponsible actions. Likewise, mothers should not be allowed to shift responsibility for their actions. Holding individuals responsible for their actions is a fundamental principle of American justice. A parent's duties to the child should be the same regardless of whether the child was planned and/or wanted.

Additional sanctions need to be adopted to ensure fathers meet their responsibilities. Currently, a father who does not support the mother during her pregnancy faces only possible termination of his parental rights. Termination is not socially desirable in many cases, however, because once parental rights are terminated, there is no duty to support the child. More vigilant enforcement of a father's financial responsibility as well as additional sanctions are necessary to ensure compliance.In those rare instances where a father contributes to the prenatal harm of his child, states should also be vigilant in enforcing the law and holding the father responsible. Finally, if a situation arises where a bodily invasion of a father is necessary to save his child and where the invasion would be required of a mother in similar circumstances, the father should be required to submit.^[149]