Who belongs in the delivery room?

It’s up to the mother, as it should be

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Should a father be allowed in the delivery room for the birth of his child over the mother’s objections? A New Jersey judge said no in a ruling released last week. “Any interest a father has before the child’s birth is subordinate to the mother’s interest,” Judge Sohail Mohammed wrote. That has to be the right call. At the same time, I can understand why fathers’ rights groups see the ruling as discrimination: It privileges motherhood over fatherhood.

Rebecca DeLuccia and Steven Plotnick agree that they started a relationship in late 2012 and that Ms. DeLuccia learned she was pregnant in February 2013. Mr. Plotnick proposed and they got engaged. By September, they had broken up.

Mr. Plotnick wanted to be involved with the pregnancy and child. Which is good, right? It’s what we want fathers to do. But in this case, for whatever reason, Mr. Plotnick lawyered up. In October, Mr. Plotnick’s lawyer wrote to Ms. DeLuccia, and then she got a lawyer, too.

Letters started flying back and forth about who would sign the birth certificate, who would be at the hospital for the birth, and — as Judge Mohammed delicately put it — whether there would be “litigation to resolve the matter if it could not be resolved amicably.”

In November, Mr. Plotnick sued, saying Ms. DeLuccia was refusing to let him sign the birth certificate, tell him when she went into labor or allow him to be present for the delivery. Ms. DeLuccia denied the first two accusations but said that, yes, she “will request her privacy in the delivery room,” as the judge wrote. She said she would put Mr. Plotnick’s name on the list of visitors for after the delivery.

That sounds like a pretty good compromise to me. Once the baby is born, it’s about the baby. Before that, though, it’s about the mother, too — there is just no way to separate her from the fetus. That’s the basic reality of nature that should allow a mother to decide the circumstances of her labor and delivery.

“It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s,” the Supreme Court said in 1992 in Planned Parenthood v. Casey, the case that reaffirmed Roe v. Wade and also held that states can’t require women to inform their spouses that they’re having an abortion. If a woman doesn’t want her ex in the room while she gives birth, then he can wait in the hallway. He’ll still have plenty of opportunity to bond with his newborn.

The same logic of biology convinced me that a New York judge was wrong last year when she barred Sara McKenna, a former Marine and firefighter, from moving from California to New York because she wanted to go to Columbia University when she was seven months pregnant. The father of Ms. McKenna’s child was the Olympic skier Bode Miller, and he tried to block her from moving across the country by asserting his paternal rights before his child was born. An appeals court quickly reversed that order.

Again, fathers just cannot have rights over fetuses that interfere with a woman’s freedom of choice and movement in this way. Once the child is born, the law can accord equal rights to fathers and mothers. Before birth, it just cannot.

I recognize the pathos and irony here in turning fathers away. To resolve the dispute between Mr. Plotnick and Ms. DeLuccia, Judge Mohammed turned to New Jersey’s parentage act, which he pointed out was designed “to help families deal with the problems posed by fathers who seek to avoid paying child support.” In other words, deadbeat dads.

Steven Plotnick has been anything but that, and with any luck his child’s life will be the better for it. But the impulse to want what’s best for his child could have led Mr. Plotnick to give Ms. DeLuccia her space rather than (figuratively) pounding on her delivery room door. As Judge Mohammed pointed out, New Jersey and federal law also protect Ms. DeLuccia’s privacy rights as a patient. And he rightly notes that dealing with Mr. Plotnick’s uninvited presence could “add to an already stressful situation” in a way that “could endanger both the mother and the fetus.” Surely Mr. Plotnick would agree that the baby’s health is paramount here.

Mr. Plotnick’s lawyer now says that her client “never asked to be in the delivery room, only to be able to see the baby at the hospital as soon as possible after the birth,” according to the Newark Star-Ledger. If that’s all Mr. Plotnick had asked, I’d sympathize. Though then it would be hard to see why he had to sue, since Ms. DeLuccia said she would put him on the visitor’s list.

Maybe he just got carried away in a tide of paternal desires. But being a good father when your child is still in utero means thinking about his or her mother’s well-being, too. When men can have babies, then they can decide who comes into the delivery room.

Emily Bazelon is the Truman Capote Fellow at Yale Law School and a senior editor for Slate.


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