men have rights in abortion?
By David Nolan
The question 'Should men have rights in abortion?' is once
again a subject for debate in Britain, following news that
a Coventry man is seeking toprevent his ex-girlfriend from
having an abortion.
For comment on the High
Court ruling on this case, visit www.bpas.org
The following is an edited
extract from a chapter, entitled 'Abortion:Should Men Have
a Say?', authored by David Nolan, (originally published
in Abortion Law and Politics Today (ed. Ellie Lee,
1998)), which discusses some of the key relevant issues.
A joint decision
While the debate about
'men's rights' in abortion should be taken seriously it
is important to note that most decisions to abort are reached
by both partners together - in as many as 90 per cent of
cases according to some estimates. In their study, published
in 1984 ('Men and Abortion, Lessons, Losses and Love'),
Shostak and McLouth found that only five per cent of the
1000 men they surveyed felt they had been forced into the
decision. A massive 84 per cent felt the decision was 'a
joint resolution of the matter'. This shows that most of
the time couples can reach joint decisions that they are
both happy to live with.
It is also the case that most men are not overly perturbed
by the decision to end an unwanted pregnancy in this way.
Few resort to the law to stop their partners having an abortion.
Roger Wade was the director of an American abortion clinic
for five years. One of his roles was to talk to the men
who accompanied their partners on the day of the operation.
During his five years, he spoke to about 1200 men. His opinions
are outlined in a leaflet he wrote for men as a result of
'Contrary to what you might expect, given all of the public
battles about abortion, only a few men wanted to discuss
the moral issues around it. Moral matters were not a chief
concern. Men who got as far as accompanying a woman to an
abortion clinic had for the most part settled their moral
qualms if they had any. I only talked with a few guys who
opposed their partner's decision to have an abortion'.
Disagreement between couples about the decision whether
or not to have an abortion is therefore rare and few cases,
in the UK at any rate, reach the law courts. Secondly, the
law is also unequivocal on both sides of the Atlantic. UK
law allows men no say in whether their partner has an abortion.
Case law in the USA has confirmed that men should have no
say in the matter. This has not prevented a number of men
from trying. Since 1991 24 men in the UK have approached
the courts attempting to prevent their partners having an
abortion. In the USA there are regular attempts, although
not as many as there were in the late 1980s when a whole
host of men went in front of the courts.
In cases of disagreement, a decision has to be made
The contention only arises when one partner disagrees with
the other's decision. This is not grounds for a healthy
and reasonable debate but one for divisive and potentially
destructive arguments. In cases of disagreement there can
be only one person whose view prevails.
When a couple faces an unplanned pregnancy there are any
number of possible reactions. Many men are very happy with
the decision to abort, and most of those involved in committed
relationships will support the decision, even if it is not
exactly the one they would choose, given different circumstances.
This is exactly the same for the woman. Many women facing
an abortion have said that they would not mind a child -
it is the fact of the pregnancy and the timing of the pregnancy
that is the problem.
The law and the role of anti-abortion organisations
Men who choose to pursue legal or administrative and obstructive
action either in the UK or in the United States are usually
supported by one or other of the major anti-choice organisations.
In the UK, the anti-abortion organisation Life distributes
a leaflet for men entitled Forgotten Fathers.
The other major organisation in the UK opposed to abortion,
the Society for the Protection of Unborn Children, claims
to receive half a dozen enquiries a week from men wanting
to prevent their partners having an abortion. They both
argue that the abortion experience is bad for everybody
concerned and that their work is in the interests of the
'unborn child'. Life's leaflet states that 'abortion is
bad for the men who want to be kind and loving fathers.
Relationships often break up after abortion - leaving both
parents bereft and with long-term problems.' It is men backed
by groups such as these who pursue legal cases to prevent
women seeking abortions. Anti-abortion groups encourage
men to seek recourse to the law on the basis that they will
suffer as a result of the woman's decision.
Legal cases in the UK
The law is very clear on the matter. A man has no legal
right to prevent his partner even if they are married from
having an abortion nor may he force her to have an abortion.
The decision rests solely with the woman, provided she can
convince two doctors that she meets the criteria laid out
under the 1967 Abortion Act as amended by the 1990 Human
Fertilisation and Embryology Act.
The first reported case that went to the courts in the UK
was in May 1978. In the case Paton v Trustees of BPAS and
Paton, William Paton, a steelworker living in Liverpool,
failed in his attempt to prevent his estranged wife Joan
having an abortion. The judge, the Rt. Hon. Sir George Baker,
President of the Family Division of the court, ruled that
the claim for an injunction to prevent the abortion 'is
completely misconceived and must be dismissed'. Paton also
failed in his attempt to gain a ruling in his favour before
the European Court of Human Rights which denied his application
for a hearing. The major case, however, was in 1987.
Richard Carver, 24 and a student at Magdalen College, Oxford
attempted to prevent his former girlfriend, a 21 year old
woman also studying at Oxford, from having an abortion.
He argued that the abortion was unlawful in that the fetus
was, in the words of the 1929 Infant Life (Preservation)
Act, 'capable of being born alive'. At the time of the case,
the woman was 21 weeks pregnant. The father, known throughout
the case as 'C', brought the action in his own right and
in the right of the 'child'.
The case 'C and another v S and another' became known as
the 'C v S' case. 'C', a member of the Oxford University
Society for the Protection of Unborn Children, who paid
his legal fees in the case, attempted to force the decision
to the House of Lords after the High Court and the Court
of Appeal turned down his request. Three law lords refused
At the time Sir John Donaldson, Master of the Rolls (the
second highest ranking judge in the UK) recalled the words
of Sir George Baker in the Paton case mentioned above. 'I
think it would really be a foolish judge who would try to
do such a thing [force the woman to keep the pregnancy to
term] unless, possibly, there is clear bad faith and an
obvious attempt to perpetrate a criminal offence.'
The counsel for 'C', Gerard Wright QC, a founding member
of the Association of Lawyers for the Defence of the Unborn
(ALDU) had previously acted for Victoria Gillick in her
attempts to prevent General Practitioners prescribing contraceptive
pills to girls under 16 without parental consent.
He argued that the fetus, if born, would be born alive.
He conceded the point that it would be dying and that it
would die but argued that it was therefore 'capable of being
born alive'. The local Oxfordshire Health Authority refused
to carry out the abortion until the matter had been finally
resolved, a decision which astonished the three law lords
called upon to rule on whether an appeal to the full House
of Lords was permissible. They countered that the Court
of Appeal had already ruled and nobody would ever be charged
for acting on such a decision, 'otherwise the life of the
country would grind to a halt'. However, the Health Authority
insisted on a final decision which was given immediately.
The C v S case was one of the quickest in British legal
history. It made its way from first hearing in the High
Court to an appeal and dismissal by the law lords in about
36 hours. Under normal circumstances, such actions may take
years. The result however, was that the woman was deeply
affected by the case and had the baby and gave it over to
Carver to look after. The fact that the driving force behind
any move to give men a say in the decision whether or not
to abort almost invariably comes from the anti-choice lobby
is not to say for a moment that all men who oppose their
partners' decision are anti-choice - for they are not. But
to take their opposition to the courts has usually required
the assistance, financial and otherwise, of a well-organised
and well-funded anti-choice lobby as was the case with the
C v S case.
Where should the right lie?
Clearly some men's feelings are likely to be hurt, where
a partner or former partner makes a decision in conflict
with their own. The question remains, where does the right
lie? If the appeal for rights is entirely a matter of emotional
attachment, then yes, men ought to have rights. But the
question of right is less emotional. It seems callous to
say that a women can decide to end a life in the same way
that she might withdraw from a contract, but it is the same
ability to determine your own future that is at stake. Where
women can be legally obliged to carry an unwanted pregnancy
to term, we make women slaves to pregnancy. Whatever the
emotional attachment of men, their loss is not a loss of
freedom. It is important to refute the suggestion that men
have as much at stake as women in pregnancy and subsequently
abortion. It is legitimate to expect men to play a role
in taking responsibility for contraception and childcare.
However, pregnancy is something that, at this stage in scientific
development at any rate, only women can undergo. It affects
women's bodies, their careers and their lives. An unwanted
pregnancy may have a devastating effect on a woman and it
is entirely legitimate for her to seek to end that pregnancy
on her terms. As we shall see below that introduction of
any conflictual third party into the equation can have a
ruinous impact on a woman's life.
Babies on demand (by any third party)
The logical conclusion, but one which is often missed, of
involving men in the decision is that it could give any
third party with a connection to the pregnancy a say in
whether a woman has an abortion. This removes whatever little
control women have now over the decision to abort and dilutes
that control to the extent that others, even those remotely
related perhaps, can have a say over the decision to terminate
a putative cousin, relative, friend or neighbour.
The result of allowing third parties a say can have dreadful
results for the women involved. In one case, a woman was
forced to have an abortion against the wishes of a court,
after her husband got a ruling preventing her having the
abortion. The case, which became known as Jane Doe v John
Smith, came before the Indiana Court of Appeals on 24 October
1988 by which time the abortion had already taken place.
On 9 February 1989 the Indiana Supreme Court (in the US
this is a higher court than the Court of Appeals, unlike
the UK) refused to hear a review of the case. In the appeal
the woman involved was condemned by the plaintiffs for seeking
an abortion for 'immature and near-frivolous reasons'. 'Fathers',
it was alleged, 'are disenfranchised from the judicial system.'
The court upheld her constitutional rights without any consideration
of the father's interests. However, similar circumstances
ended very differently in 1994 in Blair, Nebraska.
On September 26 1994, Mary Smith (not her real name) discovered
she was pregnant. She was 15 years old at the time. Two
days later she told her boyfriend, Heath Mayfield, that
she was booked in for an abortion. Within 48 hours, according
to Time magazine, 'she was detained by police, placed in
a foster home and brought before a judge who forbade the
abortion'. The boy's mother approached a local doctor who
provided a letter stating that 'any elective abortion could
potentially cause medical and emotional damage to the mother
at any stage of pregnancy'. Neither the doctor, nor another
who co-signed the letter, ever examined Mary. Up to ten
police cars (the number is disputed) arrived at Mary's home
to take her away after the local county attorney signed
an affidavit consenting to her being taken into custody.
Another examination revealed that Mary was in fact 27 weeks
pregnant and beyond the legal limit for abortion. The following
day flyers appeared in the town branding Mary's parents
murderers. The Blair city attorney at the time, Wyman Nelson,
acknowledged that anti-choice sentiment runs strong in the
area but that it played no role in the incident. 'This wasn't
about the issue of abortion, it was about the health of
a juvenile' he said. 'If it had been a tonsillectomy or
an appendectomy, we would have done the same thing.'
The baby was born on December 7 1994 and now lives with
Mary and her parents in Iowa, across the state border. The
family are pursuing a civil action in the Nebraska courts
against a number of local officials and the boyfriend and
his family. Mary's attorney has described the episode as
'the first time town authorities have mobilised en masse
to interfere with a woman's right to choose'.
The above incident is remarkable because it is rare. However,
while it is perhaps unique for the lengths the boy/father
went to, it shows the possibilities when others choose to
interfere with the decision whether or not to abort an unwanted
pregnancy. This case demonstrates that this particular man's
claim acted as a conduit for interference by the police
and other state bodies and generated an immense amount of
public and legal debate. What should have been private decision
for the woman developed through his actions into a massive
Keep the law out
Some of the cases above are used instrumentally by the anti-abortion
lobby to legitimate third party intervention. However, when
things of this kind go wrong it is actually illegitimate
to seek legislative solutions. The implication of this is
that all relationship difficulties need to be both monitored
and policed by any interested body. The consequences of
this are debilitating for any couple and horrifying for
anybody with an interest in autonomy. Any attempt to force
a decision on a woman represents a diminution of women's
ability to control her own body. It also reveals an attitude
that 'women do not know what they want'.
Is there perhaps something in the argument from those men
whose appeal is based on the fact that they have to look
after children when they are born against their wishes so
they should be allowed to have a say whether they are born
at all? And is it not entirely legitimate and logically
coherent to say that in such cases there should be absolutely
no legal or financial comeback on those men? That would
overcome most of their arguments. This leads on to one recurring
and problematic area which appears to transcend the pro-
and anti-choice barriers. As Roger Wade points out:
'Men and women involved in unplanned pregnancy have all
sorts of relationships to each other. Some may have on-going,
very intimate relationships, while others have just met
and have no intention of continuing on with each other.
Most are somewhere in between these poles and have dated
for a while but are not sure whether their relationship
has the potential to become a serious one. The crises of
dealing with an unexpected pregnancy forces a couple to
examine some of the most intimate and sensitive issues of
human sexual relationships. Uncertainties about the relationship
can become crucial in what happens'.
It is an unfortunate fact of life that when couples cannot
agree on a decision - let alone on whether or not to continue
a pregnancy - one or other of the partners will be hurt.
Generally speaking when disagreements occur on such matters
which are entirely fundamental to the relationship, it does
suggest a deeper difficulty in the relationship. In this
instance, both because the woman is the one who bears the
child and is the one on whom the majority of the responsibility
for childcare falls, it must be she who has the final say.
Men are generally involved in the decision to abort. It
is only when the relationship breaks down that men will
attempt to force women to either carry to term or end a
pregnancy against their wishes. It is only in these circumstances
that it becomes an issue. And precisely because it is in
emotionally charged circumstances, we must hold firm to
the cold calculated reality of pregnancy and childbirth:
women are still ultimately responsible for this aspect of
the reproduction of the species and they alone should be
allowed to make decisions as to whether and when to have