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Rothenberger v. Doe

Decided: April 20, 1977.


Lester, J.s.c.


The question presented in this case is whether a natural father's consent is required for the decision of a mother to abort a fetus during the first trimester of pregnancy. No appearance having been entered by defendant, the following are factual allegations of plaintiff.

Plaintiff and defendant had intercourse in and about the month of March 1977, resulting in a pregnancy on the part of defendant. That pregnancy continues as of the date of this decision. The parties are not married to each other, nor have they been married to any other person prior hereto. The verified complaint indicates that defendant has arranged, or plans to arrange, a surgical intervention to terminate the pregnancy tomorrow, interfering with the father's asserted right to procreate.

Plaintiff has, as indicated by counsel, demanded, and continues to demand, that defendant allow the pregnancy to continue unabated to its full and natural term, culminating in the expected birth of the child. Evidently, defendant refused, and continues to refuse, to accept that suggestion and has manifested her intention to abort.

Counsel for plaintiff also argues that the fetus, as an unborn human being itself, has a right to life that must be asserted through a guardian ad litem to prevent the planned abortion. This aspect of the case must be dismissed immediately since it has been determined conclusively by the United States Supreme Court that "the unborn have never been recognized in the law as persons in the whole sense," Roe v. Wade , 410 U.S. 713, 162, 93 S. Ct. 705, 731, 35 L. Ed. 2d 147 (1973), and that during the first trimester of pregnancy a decision may be reached and effectuated to abort the fetus, free of any interference by the State. Id. at 163, 93 S. Ct. 705, Doe v. Bolton , 410 U.S. 179, 93 S. Ct. 739, 35

L. Ed. 2d 201 (1973). The mother's right to an abortion decision is exclusively her prerogative and is founded on her constitutional right to privacy. Roe v. Wade, supra , 410 U.S. at 152-154, 93 S. Ct. 705.

Similarly, her right is not conditioned upon consent of the husband or natural father. Claims by husbands that the decision of their wives to abort a fetus interfere with their own rights to procreate have been categorically rejected in other jurisdictions. Doe v. Doe , 314 N.E. 2d 128 (Mass. Sup. Jud. Ct. 1974); Coe v. Gerstein , 376 F. Supp. 695 (D. Fla. 1973), app. dism. 417 U.S. 2799, 94 S. Ct. 2246, 41 L. Ed. 2d 68 (1974) and aff'd 417 U.S. 281, 94 S. Ct. 2247, 41 L. Ed. 2d 70 (1974). In Jones v. Smith , 278 So. 2d 339 (Fla. Sup. Ct. 1973), cert. den. 415 U.S. 958, 94 S. Ct. 1486, 39 L. Ed. 2d 573 (1974), the Florida court held an unmarried father had no legal standing to seek an injunction against the planned abortion by the mother. A number of ingenious theories advanced by plaintiff in that case were rejected by the Court, including the contention that the mother, by engaging in sexual intercourse, had waived her right to privacy; that by seeking an abortion the mother had abandoned the child; and that the father's right to raise the child arose from an implied contract pursuant to which the father had agreed to support any child conceived by the mother through their sexual activity.

In our own State it has been stated that "women are individual persons with certain and absolute constitutional rights. Included within those rights is the right to procure an abortion or other operation without her husband's consent. * * *" Ponter v. Ponter , 135 N.J. Super. 50, 56 (Ch. Div. 1975). While this statement arguably is a dictum of the court, it is representative of current legal analysis in this jurisdiction. This is especially true since the holding of that case was that a husband has no legal right to interfere with the decision of his wife to undergo sterilization, despite the husband's objection that such an operation would effectively bar his personal right to procreate. Plaintiff's contention in

the instant case that the decision of the unmarried mother to abort would curtail his right to procreation palls by comparison with the right asserted by the husband in Ponter , which claim was rejected by a coequal court.

More recently, it has been held by the United States Supreme Court that statutes requiring spousal consent to abortions are unconstitutional deprivations of a woman's right to abortion during the first 12 weeks of pregnancy. Planned Parenthood of Central Missouri v. Danforth , 428 U.S. 52, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976). The Danforth court reasoned that if a state is barred from interfering with such a right, it may not give a spouse unilaterally the ability to prohibit the wife from terminating her pregnancy. Id. at 70, 96 S. Ct. 2831. If the above is true with respect to spouses, it is a fortiori true of nonmarried fathers.

In the present case, while there is no question of the validity of a statute, any compulsion by a state court to require consent of a natural father would constitute unauthorized and unconstitutional state interference. Shelley v. ...

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