Fathers’ Appeals to Justices Ask Equal Rights to Children, Even Unborn

Michael Hirshensohn, a Santa Monica businessman, says he wants only the right to establish that he is the father of a baby born to the wife of another man.

Edward McNamara, a divorced man from La Habra, says he merely wants the right to have custody of a child born out of wedlock and adopted in 1981 because he is her biological father.

In appeals to the Supreme Court, both men are seeking to vindicate their “fathers’ rights”--equality with women under the law. When children are involved, they say, the courts too often discriminate against men.

Abortion Challenge Seen

But some women’s groups see a potentially ominous legal development in these appeals. They fear that a Supreme Court ruling that fathers and mothers have equal rights in matters regarding their offspring could threaten a right they believe must be a woman’s alone--the right to decide between child-bearing and abortion.

Aggravating their concern is the fact that lawyers for the National Right to Life Committee, spearhead of the anti-abortion lobby, in several recent suits have represented fathers seeking to stop their wives or girlfriends from having abortions.

In one such case, Erin Conn, a 23-year-old Indiana man separated from his pregnant wife, is asking the Supreme Court to establish a prospective father’s right to have a say in whether his wife carries the child to term or has an abortion.

Other such suits have arisen since March in Utah, Michigan, New York and Minnesota. Some state courts have forbidden the women to have abortions but, in every case so far, a higher court has reversed those orders.

“There’s no question this is part of an overall strategy by the anti-abortion movement to use ‘fathers’ rights’ to undercut Roe,” said Dawn Johnson, legal director for the National Abortion Rights Action League, referring to Roe vs. Wade, the 1973 case in which the Supreme Court held state laws forbidding abortion to be unconstitutional.

Could Be Overturned

Justice Harry A. Blackmun, author of the Roe decision, told University of Arkansas law students this month that “there’s a very distinct possibility” that the abortion ruling could be undercut or overturned in the next year.

Johnson said anti-abortion lawyers are trying to confound the courts by equating disputes involving living children with those involving the unborn.

“Once you have a child born, then mothers and fathers have equal rights,” she said, “but not until then. It is not a father’s-rights case until you have a child.”

But James Bopp Jr. of Terre Haute, Ind., general counsel to the National Right to Life Committee, said the father-to-be has a fundamental, constitutional right to share in the care and custody of his offspring. “The only question is: Is he going to have a live child or a dead child?” Bopp said.

Bopp, who is representing Erin Conn in his appeal, conceded that the Supreme Court found in 1976 that a husband could not exercise “an absolute veto” over his wife’s decision to have an abortion.

Competing Interests

In a divorce dispute, Bopp argued, both the wife and the husband have competing interests in the unborn child, and a judge must decide whose interest will prevail. In the Conns’ case, he said, Jennifer Conn, the 19-year-old wife, may not have wanted a child, but the husband has a steady job and desperately wants to be a father.

“For him to exercise his fundamental rights (to rear his offspring), the unborn child must be protected until birth,” Bopp said.

In Conn’s case, it is too late to exercise those rights. Jennifer Conn had an abortion shortly after an Indiana appeals court overturned a lower court’s temporary restraining order. Nevertheless, Conn took his case to the Indiana Supreme Court, where he also lost, and now is appealing that decision to the U.S. Supreme Court (Conn vs. Conn, 88-347).

The justices, who are closely divided on the abortion issue, have not said whether they will hear Conn’s appeal or any abortion case during the term that begins Oct. 3.

The high court on Friday received a similar appeal from a Michigan man seeking to prevent his wife from having an abortion. Although the Michigan Supreme Court rejected the father’s argument Thursday, it ordered the wife not to undergo abortion before late Monday, to give the U.S. Supreme Court time to consider his appeal.

The two California fathers’-rights cases were filed earlier and are to be argued before the court during the fall term. Lawyers said those two cases may force the justices to spell out whether fathers and mothers have equal rights in all matters involving children.

Two General Doctrines

In past rulings, the Supreme Court has set forth two general doctrines:

First, a father has a “substantial” right, under the Constitution, in the “custody, care and nurture” of his offspring.

Second, however, the strength of the father’s right depends largely on his behavior. The “mere existence of a biological link” does not give a man an equal voice in decisions concerning a child, the court said in 1983. Rather, a father’s right depends on whether he “demonstrates a full commitment to the responsibilities of parenthood.”

On Oct. 11, in another case (Michael H. vs. Gerald D., 87-746), the justices will consider a complicated love triangle that resulted in the birth of a baby in 1981. Gerald and Carole Dearing were married in 1976, but she had an affair with Michael Hirshensohn while they were living in Playa del Rey in 1980.

A daughter, Victoria, was born the next year, and the wife conceded that Hirshensohn was the father. Later she patched up her differences with her husband and moved with him and Victoria to New York City.

Lost Court Case

Hirshensohn went to court in Los Angeles to assert his paternity, but lost. California law presumes the husband of a married woman to be the father of all her children, and a California appellate court concluded that “preserving the integrity of the matrimonial family” outweighed Hirshensohn’s right to claim paternity.

ACLU Backs Father

The American Civil Liberties Union of Southern California joined the case on Hirshensohn’s behalf, contending that “California has transgressed the constitutional limits on its authority by severing the relationship of an unwed biological father and his daughter.” A lawyer representing the now 7-year-old girl has also filed a brief urging the court to rule in behalf of Hirshensohn.

The second case from California involves an unwed father and a baby born in 1981. Edward McNamara had a brief affair with a San Diego woman in the fall of 1980 that, unknown to him, resulted in the birth of a girl, Katie, in July, 1981.

Two weeks later, the mother contacted McNamara, told him of the birth and asked him to join her in deciding to give the girl up for adoption. McNamara was undecided for several weeks, then announced in late August that he wanted custody of the girl. By that time, however, the San Diego County Department of Social Services had placed her with adopting parents.

Since then, McNamara’s case has made two trips to the California Supreme Court. The conclusion: The “best interest of the child” was served if she remained with her adopted family, and this outweighed McNamara’s right to custody.

Attorney James Sutherland of Long Beach said that McNamara, now an estimator for a general contractor in La Habra, is a responsible father who could provide a good home for Katie. The state or county cannot simply take away a mother’s right to have custody of her child, he argued, and it should not be permitted to do the same to a father.

The ACLU also has filed a brief contending that McNamara is a victim of sex discrimination, but several other groups have filed briefs supporting the county, arguing that concern for the child’s welfare should outweigh the rights of an unwed father.

The U.S. Supreme Court probably will hear arguments in the case (McNamara vs. County of San Diego, 87-5840) in December.