Cardozo Journal of Equal Rights & Social Justice
Abstract
In the 1920s, family law jurisprudence saw the development of a fundamental right to direct the upbringing and education of children by parents. However, in the aftermath of Roe v. Wade, the Supreme Court began a trajectory that culminated in what would amount to a total deprivation of a father's prenatal rights despite an absence of judicial review of these matters. This evolution has created a grave injustice and a violation of the rule of law, in addition to facilitating the breakdown offamily oneness in our culture. While proponents like Lynne Marie Kohm, Michael J Higdon, Mary Totz, and Matthew R. Pahl have argued on behalf of the father using various legal approaches that invoke the Equal Protection Clause, Intentional Infliction of Emotional Distress, Conversion, and Coverture Theories, this article advocates for a reform that requires empowering states to create procedural safeguards for a willing father to obtain custody of his unborn child. These safeguards would be based on three components and work in harmony with the existing abortion jurisprudence. The three components encompass: (1) the concept of the judicial bypass provision for minors seeking an abortion to circumvent parental notification statutes; (2) the decision in Stanley v. Illinois; and, (3) the labor investment theory developed in the 70s and 80s involving the requisite paternal involvement throughout the pregnancy
Disciplines
Constitutional Law | Law | Legislation
Recommended Citation
Anton Sorkin,
"A Trial of Strength in Scenes of Violence": Building a Case for the Prenatal Rights of Willing Fathers Towards Custody,
22
Cardozo J. Equal Rts. & Soc. Just.
463
(2016).
Available at:
https://larc.cardozo.yu.edu/cardozoersj/vol22/iss3/3