In recent years, paternity rights have been used as an argument to oppose legal abortion in different Latin American countries. In Uruguay, Colombia, and Argentina, this strategy has been successful in promoting the adoption of preliminary injunctions that hinder a pregnant person’s right to abortion. This situation urges reproductive rights defenders to search in comparative law possible strategies and solutions to produce counterarguments to this trend.
After Argentina’s adoption of Abortion Law No.27.610 in 2020, alleged fathers have resorted to paternity rights as a legal argument to challenge the legitimacy of abortion and impede the provision of this health service. In some cases, courts have welcomed this argument and prevented medical teams from performing an abortion. For instance, this happened, in the province of San Juan, where three appellate court judges ruled in favor of a father and issued a preliminary injunction to prevent an abortion from taking place. Luckily, by the time the injunction was issued the woman had already accessed the abortion service. Nevertheless, this case shows a worrying trend towards the primacy of paternity rights over women’s rights to decide and choose to get an abortion.
The resort to “paternity rights” as an argument to hinder abortion access is not original or new. For decades, alleged fathers have argued that they are entitled to decide the destiny of a fetus. Their arguments are based on three main grounds: (1) the presumption of paternity within marriage, (2) the joint-life project of the spouses, and (3) the common misrepresentation of the father’s obligation to provide financial support.
“Presumption of paternity within marriage” is a legal concept that exists in many countries of the region, such as Argentina and Colombia. In Argentina, for example, married fathers have relied on it to prevent their spouses from terminating their pregnancies. Interestingly, the original intent of that presumption was other: to determine that children born within a marriage were presumed to have a mother and a father, the wife and husband, respectively. As such, there is no link between this legal presumption and the right to decide the course of a pregnancy; and thus, it should not be used as a tool to claim some sort of “authority” or “power” over a pregnant person’s body.
Secondly, alleged fathers have also wielded the “joint-life project of spouses” as a valid reason to stop their spouses from having an abortion. This argument, apart from instrumentalizing the bodies of pregnant people to fulfill a family project, ignores what pregnancy entails for the life of the pregnant person. Pregnancy exposes pregnant individuals and their bodies to hormonal, physical, psychological, and emotional variations.
From the usual bodily changes of pregnancy, such as weight gain, pain, discomfort, and hormonal fluctuations, to more serious complications, such as prenatal depression, anxiety, preeclampsia, and risk of death, pregnancy drastically changes the lives of pregnant people. The law should not ignore the clearly different circumstances between those who are pregnant and those who are not, since the challenges of pregnancy are only borne by the former.
Lastly, the third ground on which alleged fathers rely to challenge abortion rights consists of an analogy between their entitlement to the fetus, and the legal obligations they have once a child is born. For example, in 2006, in Dubay v. Wells, a man claimed he had the same rights as his former partner to decide the course of a pregnancy and requested the court to have his former partner undergo a “financial abortion” so as not to be obligated to pay child support. The court argued that this was a false analogy because it is impossible to compare the right to abortion that a pregnant person has with the unwillingness of a partner to comply with their financial obligations once a child is born.
The court noted that before birth, pregnant people and their partners are not in a similar situation. A pregnant person’s right to abortion is protected because of their right to personal integrity and privacy, and there is no comparable right for non-pregnant people. The analogy the plaintiff made in Dubay v. Wells had no legal basis since men are not in the same legal and factual situation as pregnant women.
In conclusion, the legal claim to paternity rights before birth has been an obstacle to abortion access in many countries, including Argentina. Resort to misleading interpretations of legal concepts, such as the “presumption of paternity within marriage,” the “joint-life project of the spouses,” and the false analogy between the right of women to terminate a pregnancy and the unwillingness of fathers to provide child support, have been a successful strategy for alleged fathers all over the world. Reproductive rights advocates and defenders must consider this trend towards the increasing use of “paternity rights” as a barrier to access to abortion services and find ways to respond to them. One of these ways, is seeking in comparative law innovative solutions that can provide counterarguments to deny the existence of paternity rights before birth.
