NJ Judge Affirms That Women Take Precedence In Pre-Birth Decisions Because They ‘Bear The Child’

her body, her choice

A New Jersey Judge has made history with a ruling in a dispute between an unmarried father and mother over the woman’s pregnancy and delivery of a child. In a significant victory for women, Superior Court Judge Sohail Mohammed wrote that “any interest a father has before the child’s birth is subordinate to the mother’s interests.” The issues in question have apparently never before been adjudicated between an unmarried couple, anywhere in the United States.

The decision in ‘Plotnick v. DeLuccia’ was just published.

The case is Plotnick v. DeLuccia. It was actually decided in a hearing on November 19, 2013, but the judge’s decision was just published on March 10th.

The parties involved agree on the basic facts. Rebecca DeLuccia was in a relationship with Steven Plotnick in late 2012, and pregnant in February of the next year. He proposed marriage. They became engaged. The engagement and the relationship ended by September, 2013, with DeLuccia’s due date still to come in November.

Shortly after that point, Plotnick hired a lawyer to press his requests for involvement in the pregnancy and in the child’s life. Most immediately, he wanted to require DeLuccia to notify him when she went into labor and to force her to let him, as the father, be present at the delivery.

However, there are no laws defining such rights for a ‘putative’ (or assumed) father. But there are well-established laws about the rights of women and their pregnancies. In a refreshing turn of events for these times, Judge Mohammed made plentiful use of precedents to back up those rights.

Judge backs mother’s interests over father’s, pre-birth.

First of all, he reasoned that the 1973 decision by the U.S. Supreme Court in Roe v. Wade clearly gave women the right to control their own bodies during a pregnancy. Secondly, he cited a 2005 decision of the state’s Supreme Court, in Kinsella v. NYT Television, that disclosing someone’s admission to a hospital violated the New Jersey Hospital Patient Bill of Rights. From this, the judge concluded that:

… if disclosure of the patient’s admission into a hospital violates a patient’s right to privacy, certainly forcing an individual into the room against her wishes would violate her privacy rights.

Furthermore:

It would create practical concerns where the father’s unwelcomed presence could cause additional stress on the mother and child. Moreover, such a finding would also lead to a slippery slope where the mother’s interest could be subjugated to that of the father’s.

Thirdly, Judge Mohammed pointed to 1992’s Planned Parenthood v. Casey, which concluded that women do not have to notify their spouses before an abortion. This decision involved a married couple. It certainly undermined any rationale for having to notify a non-spousal father of an impending birth. In that ruling, the U.S. Supreme Court specified that, when there is a dispute between a couple over a pregnancy:

Inasmuch as 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, the balance weighs in her favor …

In an ironic twist, considering that the judge wanted to protect the mother from additional stress, the hearing was held on the day that DeLuccia went into labor. She participated in the proceeding by telephone, from the delivery room. According to her attorney, Joanna Brick, DeLuccia had been tested in recent weeks for ‘premature delivery and stress’. Later that day, November 19th, the mother delivered a daughter.

Plotnick was allowed to visit the baby after her birth, though his application for an injunction from the court was denied. Brick said that the mother was always “going to provide him access to the child, as a visitor, through normal hospital procedure.”

Also important were Plotnick’s requests to be named as the father on the birth certificate, to have his surname appear on the birth certificate — both denied because the mother did not consent — and to have parenting time with the child. Those issues were successfully negotiated through the attorneys of the two parties, so there will be no appeal of the November ruling.

Women’s rights are supported by invoking precedents.

Still, Judge Mohammed provided invaluable support for the rights of women, which are so under siege. In particular, he ruled that the parenting time issue was ‘not ripe’. That is, it could not be decided ‘pre-birth’. The judge concluded that a ‘best interest’ of the child analysis could not be done because the appropriate statute spoke of a ‘child’, not a fetus. The factors that are used for such an analysis simply don’t exist because a fetus doesn’t have ‘independent interaction with the parents’. This may seem as obvious to most rational people as it did to the judge, but at a time when the radical right is attempting to define a fertilized egg as a child from the moment of conception, making the distinction is a vital one.

It’s apparent from the precedents cited by the judge that, once upon a time, the wellbeing of expectant mothers was the main priority of Americans. Women’s claims to physical autonomy and good health overruled any claims of ‘personhood’ for their fetuses, or of the rights of men to force decisions on them about the birth process. Paternal rights never extend to control over the mother. The question is, do we have enough rational judges left in this country to guarantee it?