Bretherton, Brittany --- "Opting out of parenthood: A discussion on equality of reproductive rights and men's right to 'statutory termination'" [2021] CanLawRw 16; (2021) 18(2) Canberra Law Review 97

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Opting out of parenthood: A discussion on equality of reproductive rights and men’s right to ‘statutory termination’

Brittany Bretherton

The adoption of a right to ‘statutory termination’ raises interesting novel questions about parenthood and equality in reproductive rights, but also difficult fundamental questions about equality before the law. The concept of statutory termination is that men should have equal reproductive choice and rights as women by providing a reciprocal right to terminate all responsibilities relating to an unintended pregnancy. The topic is not a comfortable one and not one that has been well embraced either socially or legally in any country, including Australia. However, it is incrementally gaining acceptance and some women have started speaking out in favour of these reforms due to their own concerns about fundamental inequality under the law. The article provides an introductory discussion to the concept of statutory termination and its recent history and considers the viability and practicality of its introduction into Australia’s legal system. In doing so, it draws heavily on US case law to analyse the relevant legal principles found in the common law and contextualises the discussion within the social and academic debate on relevant public policy issues.

INTRODUCTION

Abortion is a vexed issue that produces strong and emotive arguments on each side of the debate, and it is no different in the context of novel arguments in favour of ‘abortion’ rights for men.^[1] Proposed ‘abortion rights’ for men – hereafter referred to as ‘statutory termination’ - have no physical implications for a pregnant woman, but rather take the form of severing financial and parental responsibilities and rights for children borne out of unintended pregnancies to which the father is opposed continuing.^[2] It raises novel legal and philosophical questions in the specific context of reproductive rights. However, it also raises fundamental questions about whether it is acceptable, desirable, or necessary for inequalities to be written into and applied by the law where it is thought justifiable on bases of social convention, traditional notions of morality, or public policy. This article proceeds on the assumption that our society seeks to resolve and remedy inequalities under the law when and where they are identified. Within this context, the history of the concept is outlined to define the scope and application of the right to statutory termination as discussed in this article. The application of existing common law principles is then considered through an analysis of US case law but ultimately rejected as a viable source of legal foundation for the introduction of this right. The implications for Australia’s legislative framework governing parental rights and responsibilities are considered and potential areas of statutory reform are outlined to give effect to a right to statutory termination. Arguments for and against the introduction of this right are considered and ultimately conclude that their introduction is necessary to achieve parity in reproductive rights between men and women and may also better serve the best interests of the child.

Context

The legal, theoretical, and philosophical implications of changing society’s legal approach to parenthood are vast in breadth and complexity. A detailed identification and analysis of all issues stemming from the proposed reforms is unfortunately beyond the scope of this article. Principally, the limitations of this article mean that it provides only a superficial identification of key areas of the concept, legal issues, and public and academic debate. The proposed legislative amendments offer only a high-level identification of key areas for reform and suggested key amendments that would be necessary to give effect to a right to statutory termination. Furthermore, given the intensity of views and debate within the sphere of reproductive rights, it is important to clarify that this article does not take a general position on men’s or women’s right. It is not, for example, argued that women’s rights have reached a pinnacle and should be wound back, nor that women's rights further no further advancement. Additionally, the questions of the rights of the unborn child, or whether it is ethically or morally appropriate to bring a child into the world when one parent is vehemently opposed to its existence, are acknowledged as being relevant to the issue, but also beyond the limited scope of this article. Rather, the focus is placed on the current state of reproductive rights of men and women in the context of unintended pregnancies and the apparent tensions that arise between the state of these rights and the fundamental tenet of equality under the law.

PART I: THE CONCEPT OF STATUTORY TERMINATION AND

ITS HISTORY IN BRIEF

Statutory termination is the term used to refer to a man’s right in certain circumstances to legally and financially sever any legal or social ties to a child upon becoming aware of its existence during pregnancy or after its birth.^[3] This form of termination is distinguished from the pregnancy termination available to women in that it has no physical bearing on whether a woman brings a pregnancy to term and bears a child. Rather, the man is only legally empowered to choose whether to assume the responsibilities of parenthood or not. A decision to terminate his status as parent would not only absolve him of financial responsibilities, but also terminate any rights to privileges in the child such as spending time with the child or playing any role in the child’s life, effectively transforming his status from ‘father’ to ‘sperm donor’.^[4] There is no suggestion in this article that pregnancy termination laws should be changed in relation to the rights that women now possess, or that a man’s right to terminate his parental responsibilities should have any legal impact on a woman’s decision to either continue or terminate a pregnancy. It is also assumed that, in situations where each parent has voluntarily assumed responsibility for their child, they have an ongoing equal responsibility for their child’s ongoing care and support, even in circumstances where they later separated.

The circumstances in which it is envisaged that this right may be enlivened is in limited cases where there was no intention between the man and woman for a pregnancy to result from intercourse, coupled with expressed opposition to the pregnancy continuing by the father. As with most areas of the law, the novel scenarios in which an unintended father might seek to enliven this right, and the potential disputable variables that might arise are potentially innumerable. However, for illustrative purposes, the types of cases where it might be applied include, for example, where a man and woman agree to use prophylactics and contraceptives prior to intercourse and mutually agree to an abortion in the event of an unintended pregnancy, but the woman changes her mind and decides against terminating the pregnancy. It would also capture situations where a woman might be deceptive about her fertility status or intentions with regards to pregnancy. It is unnecessary for the purposes of this article to consider similar situations in which a woman has a stated desire not to fall pregnant as women have existing rights to termination services in Australia, if they choose to access them.

The concept of statutory termination most notably gained traction with a 1996 article written by Stephen Hales who argued that men should not have an absolute duty to provide ‘material’ support to their children and should have a right of refusal.^[5] Hales based his argument on the following presuppositions and the inconsistencies arising between them: that women have been granted an absolute right to abortion on demand; that men and women have equal moral rights and duties and should have correspondingly equal legal rights and duties; and, that parents have a moral duty to support their child once they are born and any legal duty currently supervenes those moral duties.^[6] The concept was also heavily litigated in the United States through the 1970s, 1980s and 1990s, as fathers of children borne out of unintended pregnancies (hereafter referred to as ‘unintended fathers’) sought to avoid financial responsibility for their offspring. The most well-known of these cases was Dubay v Wells which, at the time, was billed as being “Roe v Wade For Men".^[7] In Dubay v Wells, Dubay argued against the obligation to pay child support on grounds of reproductive fraud on the part of the mother, Wells.^[8] Wells had made undertakings that she was infertile and taking contraception as an additional precautionary measure due to their mutually stated intention of avoiding an unintended pregnancy.^[9] Following this case, in 1998, Frances Goldscheider, a female philosopher, produced an op-ed out of Brown University in which she voiced support for providing men with equal rights and responsibilities in fatherhood and advocated for statutory termination as a means of achieving equal rights between men and women.^[10]

In 2016, the issue gained some prominence in the Australian context with an opinion piece by Australian comedian and columnist Catherine Deveny who argued strongly in favour of men’s rights to statutory termination on feminist, equality, and social progression grounds.^[11] Specifically, Deveny argued that: consent to sex should no longer be construed as consent to parenthood; that if it is not fair to force a woman to become a parent then it cannot be fair to force the same upon a man; and, that women would be better supported by policies and laws that allowed them to make fully informed decisions about the responsibility of single parenthood without forcing them into an ongoing situation of tension with an unintended father. Deveny’s solution was to introduce rights of statutory termination for men coupled with supplementary financial support provided by the State.^[12] Deveny’s article has received strong support from some as the logic of ‘consent to sex does not amount to consent to parenthood’ applies equally to men and women.^[13] Furthermore, support was subsequently expressed for Deveny’s view that any notion of men being ‘providers’ and women being ‘cared for’ are founded in outdated and oppressive heteronormative values.^[14] Kerri Sackville, an Australian commentator, subsequently responded to Deveny’s article in vehement opposition. Sackville argued that any moves to provide men with rights abrogating their parental responsibilities would further oppress women and that, not only would it be undesirable for men to have equal rights to avoid parenthood as women, but it would be impossible until men were physically capable of bearing children themselves.^[15]

Two key reasons supporting the introduction of statutory termination have emerged from the public debate on the issue: principled opposition to forcing a person to be responsible for a child they did not intend to produce or took steps to avoid producing, and, achieving parity in reproductive rights between men and women. Despite these seemingly legitimate and compelling reasons for introducing a right for the termination of parental responsibilities, all litigation on the issue in the United States has so far failed. There is currently no case in which principles of the common law have successfully been found to support a man’s right to abrogate his responsibilities towards unintended offspring. However, the litigation on the issue from the United States provides a useful means of analysing the applicable common law principles to demonstrate the need for statutory reform to achieve equality of reproductive rights between men and women.

PART II LEGAL PRINCIPLES AND THE COMMON LAW

The genesis and extent of parental duties under the law have not yet been settled. There is a compelling theoretical and philosophical argument that parental duties arise by artificial social convents rather than by natural law.^[16] From this, it is argued that the superficiality of social conventions explains the lack of proportionality between the extent of parental duties acquired and the level of risk or precautions taken during intercourse.^[17] The social convention basis for parental duties also goes towards explaining the tolerance of inequalities in the law, as well as the inconsistencies and incoherencies provided by courts when denying relief to fathers of unintended pregnancies.^[18] In contrast, the common law takes the view that parental duties arise from natural law dating back to Blackstone’s Commentaries where parents were considered to have a duty to provide for the maintenance of their children as a principle of natural law.^[19] Blackstone opined that, by being a party to the conception, parents entered into a voluntary obligation to support and preserve their child’s life, thus giving rise to a right in the child to receive maintenance from their parents.^[20]

The application of the natural law line of reasoning forms the basis of common law decisions of paternal responsibilities for unwanted children and has been relied upon to refuse relief on a number of grounds including equality, fraud or misrepresentation of fertility or contraceptive use, intentional infliction of emotional distress and financial harm, and breach of contract.^[21] The only case in the US that held a mother’s conduct should impact a child support award occurred in 1981 but was subsequently overturned on appeal.^[22] The trial judge had held that equity required the court to read an exception into paternity statutes where a mother had intentionally deceived him regarding her use of contraception.^[23] The court did not take an absolutist position of absolving the father of his child support rights, but rather held that the mother would not be entitled to child support until her resources were insufficient to meet the child’s needs as a means of ensuring the child was provided for.^[24]

The inconsistencies of legal reasoning noted above can perhaps be best illustrated in considering the core reasoning in Roe v Wade - that a woman’s constitutionally protected right to privacy protects the right of any person, either married or single, to be “free from unwarranted governmental intrusions into matters so fundamentally affecting a person as to the decision whether to bear or beget a child".^[25] However, this reasoning is demonstrably not applied and in fact is argued against by the judiciary in the context of a father’s right to decide the same. Inconsistencies can also be demonstrated when considering the common law approach to consent, intercourse, and parenthood. This lends weight to arguments that duties imposed upon parents by the State result from social convention rather than any sense of natural law. Furthermore, arguments that a man’s consent to sexual intercourse was contingent upon undertakings that the female was taking precautions against pregnancy or was incapable of falling pregnant have been routinely struck down by the courts.^[26] This rejection of the relevance of consent is, in a strict legal sense, at odds with the courts own reasoning in cases of assisted reproduction where, for example, a couple who have created fertilised embryos must equally consent to use of the embryos.

In assisted reproductive cases, a lack of consent by the father was initially sufficient grounds to prevent the mother from impregnating herself with their jointly created embryos.^[27] Subsequent legal reforms have allowed men to withdraw consent to being treated as the legal ‘father’ but still allow the woman to use the embryos, which, as noted above, effectively converts his status from ‘father’ to ‘donor’.^[28] Comments by the judiciary indicate that the assumption underlying these changes appears to be that, it is less harmful to prevent the viability of an embryo than to impose parenthood on an unwilling person^[29] and that a man “is entitled to say that he does not want to become a father by a woman...with whom he no longer has anything in common part form the frozen embryos...".^[30] Furthermore, that it would not be unreasonable for a father to decline fatherhood when he would not be in a position to play “a full and proper paternal role".^[31] With assisted reproduction, each parent has the right – regardless of the other parents' preferences or intentions - to reject parenthood at any point before impregnation occurs, even though the embryo exists.^[32]

The common law therefore considers that the right to not have a child or accept parenthood exists but that engaging in sexual intercourse is a course of conduct inconsistent with the exercise of that right.^[33] The rationale behind this is that the reproductive consequences of a father’s actions are imposed by ‘operation of nature, not statute’.^[34] Further, it has been held that there is no requirement for the law to correct any sense of unfairness in this context by allowing biological fathers to abrogate their financial responsibilities for supporting a child ‘as a proxy for the loss of control of the events that naturally flow from sexual intercourse'.^[35] We have therefore progressed from a position at common law where men had exclusive rights in their children with the mother merely entitled to ‘reverence and respect',^[36] to a position where women have all rights to pregnancy and to decide whether a child is brought into existence. The law further operates in such a manner as to create a strict liability standard for men who have no right to consent to sex on the belief – induced or otherwise – that there is a mutual intent not to produce a child.^[37] Furthermore, the seminal case on the matter in the US, Dubay v Wells, found any introduction of a right for men to terminate parent responsibilities as being ‘so foreign to our legal traditions that it has no “foundation", no chance of success'.^[38] What is clear from the case law is that, there are no legal principles that the judiciary is either willing or able to draw upon to recognise a right for fathers not to become a parent in the contexts discussed in this article. The only means of achieving this are through legislative reforms.

PART II PROPOSED LEGISLATIVE REFORM

It is acknowledged that the case law and common law principles discussed above are based on the US legal system and are not neatly analogous to the Australian legal context. For example, arguments based on Roe v Wade are not particularly translatable to the Australian context as we do not have a recognised legal right to privacy, either constitutionally, in statute, or at common law. Furthermore, a key argument underpinning the decisions of US courts is that “it is well settled that the State does not have an affirmative duty to correct underlying inequality in society".^[39] While this may be true of the social context in America, it is not necessarily true for the Australian context where the State has a much more prominent role in supporting vulnerable members of society. Additionally, it is plainly open to the Australian Government to legislate on this matter at the federal level under the Australian Constitution which provides the federal government with the power to make laws with respect to 'divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants'.^[40]

As a brief overview of the relevant aspects of Australia’s legal framework, women’s abortion rights are regulated at the State level and parental rights and obligations are principally regulated federally under the Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth). The current state of abortion rights in Australia provides women generally with access to abortion in all States but with varying degrees of access depending on the stage of pregnancy. For example, in Queensland, abortion is legal up to 22 weeks but thereafter requires the approval of two doctors whereas in Tasmania, abortion is only available up to 16 weeks before the requirement for two doctor’s approval is triggered.^[41] In the Northern Territory, the laws are stricter again with abortions being legal up to 16 weeks with one doctors’ approval, up to 23 weeks with two doctors’ approval, and illegal thereafter unless required to save the mother’s life.^[42] None of the state-level or federal level laws in Australia provide men with any rights in relation to abortion, including either notification of intent to terminate a pregnancy or any right to participate in any part of the decision-making with the mother. Under the current legal framework for parental rights, parents have a presumption of equal shared parental responsibility, but this does not translate into a right to equal shared custody.^[43] Children also enjoy a right to know and have meaningful relationships with each parent and to be protected from harm.^[44] Parents also have a duty to support the child, regardless of who the child lives with, and parents are able to arrange this between themselves if they obtain independent legal advice and meet a range of obligations.^[45] Alternatively, parents can apply for a government conducted child support assessment to determine the amount of payable child support.^[46] The legislative framework is complex, and reforms should seek to give effect to a right to statutory termination in a simplified manner.

A number of proposals have been raised in academic literature and social debate for resolving the inequality between men and women’s rights and for introducing frameworks for giving effect to a right to statutory termination. Goldscheider advocated for women to be obliged to inform their sexual partner as soon as the mother becomes aware of the pregnancy and to decide within a reasonable period of time whether to continue with the pregnancy.^[47] Further, Goldscheider favoured penalties for women who failed to meet their obligations for violating their sexual partner’s rights.^[48] Deveny suggested that, similar to an organ donor register, a ‘no children’ register be created so that men could register their lack of desire to have children.^[49] The intent behind this would be to provide men with a means of evidencing their lack of desire to have children. McGulley provided a draft statute that would require women to notify the father within a specified period of time; would provide the father with options to terminate his responsibilities and rights regardless of whether the woman complied with the statutory notification periods or not; and, would create an avenue to petition the courts to recognise his termination of rights and responsibilities with a specified period of time.^[50] In general, the thrust of the various proposed methods of giving effect to a right to statutory termination base their timeframe on the point of viability of a foetus and focus on the following key requirements: for the father to have demonstrated their lack of reproductive intent, to have taken active steps in to give effect to that intention, and to communicate their opposition to continuing with the pregnancy once they became aware of it.^[51]

The fundamental problem with the proposed approaches is that they rely heavily on the introduction of a burden of proof and fault element as triggering mechanisms for enlivening a right to statutory termination. However, this has significant potential to increase tension between unintended mothers and fathers, and to result in an influx of litigation to the court systems. Any reforms should instead focus on empowering each parent to make their own decision independent of the other, taking into consideration their individual life circumstances. The aim of these reforms should be for men and women to gain have equal rights to choose whether to embrace the rights and responsibilities of parenthood, and for any resulting child to be wanted and supported by a willing parent or willing parents. The focus of the reforms suggested in this article therefore focus on implementing carve outs in existing laws for unintended fathers. Although state level abortion laws do not require reform and would be unaffected by a right to statutory termination, they may have implications for the timeframe within which a man’s right to statutory termination would need to be exercised. However, as demonstrated above, the abortion laws in Australia are not harmonised to a single point of pregnancy stages, so determining the timeframe within which a statutory termination would have to occur requires considered thought. It may not be satisfactory for the right to decide to simply match the equivalent state-level timeframe within which a woman must decide whether to continue with or terminate a pregnancy.

Giving effect to a right to statutory termination would require reforms to Australia’s federal Family Law Act 1975 (Cth) and Child Support (Assessment) Act 1989 (Cth) at least. The Family Law Act 1975 (Cth) would require changes to at least Part VII, Division 2, to provide an exception to section 61C, which currently stipulates that each parent has parental responsibilities. It would also be prudent to amend Part VII, Division 1, Sub-division BA to allow the court to determine that the best interests of the child may be best served by allowing the father to sever his financial and other ties to the child. Corresponding reforms would also be required for the Child Support (Assessment) Act 1989 (Cth) Part 3 to exclude application of the Act to fathers who had exercised their right to statutory termination. The A New Tax System (Family Assistance) Act 1999 (Cth) already provides for Government funded financial assistance to be prorated depending upon the percentage of care that a parent undertakes (New Tax System (Family Assistance) Act 1990 (Cth) s 35B) and this is further adjusted if there are any relevant child support arrangements in place (New Tax System (Family Assistance) Act 1990 (Cth) sub-div F). It would appear that the legislation has been drafted with sufficient flexibility to allow for scenarios where a parent may conceivably have all care time of a child and receive government financial support that would otherwise be provided through child support. However, significant research and analysis would be required to properly consider the legislative reform implications of financial support under Australia’s social support and tax legislation.

PART IV RECONSIDERING THE BEST INTERESTS OF THE CHILD

The right to statutory termination in the terms discussed in this article is relatively modern; however, critics of the proposal argue that it is simply a return to times in which men had no responsibilities towards children born out of wedlock and women had no recourse to obtain financial assistance.^[52] This line of argument cites concerns that, although women have the choice of not continuing with a pregnancy, enabling men to abrogate their responsibilities will perpetuate the oppression that women have historically faced.^[53] However, within the modern context, the provision of child support is arguably primarily providing for the best interests of the State as it has a vested interest in ensuring that the mother and child are not relying on the State and taxpayer for public assistance.^[54] Yet, the relationship between citizen and the State has evolved to a point where there is now an expectation that the State provide support for members of society, and vulnerable members of society in particular. Children are undoubtedly vulnerable members of society, and it is justifiable for the State to intervene in circumstances where it is in the best interests of the child. It seems particularly reasonable for the State to intervene in circumstances where a child is caught between parents who cannot agree on the most fundamental of issues - its very existence.

In these circumstances, it may be in the best interests of the child for a number of reasons to allow the reluctant father to remove themselves and there are compelling arguments supporting this. For example, Swedish sociologist and feminist academic Karen Sjurop argues in favour of the proposal on grounds that voluntary termination of parental rights may serve to protect the best interests of the child by avoiding constant rejection through non-payment and subsequent conflict between the parents.^[55] This is further echoed by arguments that two parents do not always make for a positive and stable environment for a child, and that it may be less traumatic and disruptive for a child if the father is able to remove himself from the situation in the very early stages of the child’s life.^[56] The current approach of forcing fathers to remain involved appears to be based on assumptions that child rear must necessarily take place within a family context resembling a traditional ‘nuclear family‘, and that a parent‘s involvement is therefore assumed to be in the best interests of the child.^[57]

This appears to further assume that all adults are capable of looking after themselves to some degree and, by extension, are also capable of caring for a child. The courts themselves assume that ’many...will necessarily expand the boundaries of their moral sensibility' and that parenthood ’has the potential to set in motion a process of engagement that is powerful and cumulative, and whose duration spans a lifetime'.^[58] Reconsideration of these assumptions is, however, justified in circumstances where either parent states that they are unwilling or unable to assume the significant responsibilities of raising a child. Currently women have a range of options available to them to enable them to make this decision in a responsible and considered way; however, as a society, we currently cast aside any opinion of potential fathers as ’intrusive, irrelevant, and patriarchal’.^[59] In some circumstances, it may be more responsible for a parent to remove themselves and this may also better serve the best interests of the child. The means of achieving this are through re-evaluating society and the law’s approach to parental responsibility and introducing reforms that empower men to make their own choices, whilst also empowering women to take on the role of motherhood without having to choose between financial destitution or ongoing conflict with an unwilling father.

CONCLUSION

The current state of reproductive rights is one in which women have rightfully gained the power to control their bodies and to choose when and how they become parents, if at all. However, male parties to an unintended pregnancy have largely lost control of their reproductive rights. They have no recourse once a pregnancy occurs, and the strict liability threshold employed by the current legal regime means that their primary choices are preventative in nature: to abstain from sexual intercourse. It may be that this is an area of life and law where it is neither achievable nor desirable to realise equality, and that society is satisfied with the status quo as the lesser of two evils. If so, then the current state of law which imposes parenthood on reluctant fathers is suitable if unjust. If this is the case then, in situations where the necessary means of achieving true parity of rights is unpalatable to the communal conscience, we must acknowledge that we are not in truth seeking equality, but rather are satisfied with qualified equality. However, any notion that equality should be abandoned because it is inconvenient or unpleasant is arguably a more repellent notion than reassessing the dominant historical social narrative that intercourse necessarily gives rise to each parent’s consent, obligation, and capacity to raise a child. If inequalities are neither desirable nor necessary, then rights for men to terminate parental responsibilities in the limited circumstances discussed in this article may be beneficial for the fathers and mothers. Furthermore, in circumstances where a father opposes the child’s existence, allowing an unintended father to voluntarily remove himself from the child’s life potentially has the added benefit of removing a significant source of tension from the child and mother’s lives. Where the financial support is supplemented by the State, this situation may ultimately better serve the best interests of the child.

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^[1] The rights discussed may be referred to interchangeably as ‘statutory termination', ‘statutory abortion', ‘financial termination', ’financial abortion', ‘paper termination', or ‘paper abortion' within public debate sources and academic literature. See, generally, Catherine Deveny, 'Financial abortion: Should men be able to 'opt out' of parenthood?' Australian Broadcasting Corporation (Online, 19 December 2016) <https://www.abc.net.au/news/2016-12-04/financial-abortion-men-opt-out-parenthood/8049576?nw=0>.

^[2] Ibid.

^[3] Ibid.

^[4] Ibid; Anne Morris and Sue Nott, 'Rights and responsibilities: contested parenthood' (2010) 31(1) Journal of Social Welfare and Family Law 1, 3-16.

^[5] Stephen Hales, ’Abortion and Fathers’ Rights’ in James M. Humber and Robert F. Almeder (eds) Reproduction, Technology, and Rights, (Humana Press, 1996) 1, 5.

^[6] Ibid.

^[7] The National Center For Men, 'Roe vs. Wade....For Men: Men's Center files pro-choice lawsuit in federal court' The Press Release (Web Page, March 2006) <https://nationalcenterformen.org/roe-vs-wade-for-men-press-release/>.

^[8] Dubay v Wells, 442 F Supp. 2d 405 (Lawson, District Judge) (United States District Court, E.D. Michigan, 2006) ('Dubay v Wells').

^[9] Ibid.

^[10] Frances Goldscheider, 'Men, Children and the Future of the Family in the Third Millennium', Men, Children, and the Future of the Family in the Third Millennium (Online article, December 1998) <https://www.brown.edu/Administration/News_Bureau/Op-Eds/Goldscheider.html>.

^[11] Deveny (n 1).

^[12] Ibid.

^[13] Frances Goldscheider, 'The case for 'financial abortion'', Policy Forum (Web Page, 13 February 2017) <https://www.policyforum.net/case-financial-abortion/>; Michael Cook, 'Is 'financial abortion' an idea whose time has come? ', BioEdge (Web Page, 10 December 2016) <https://www.bioedge.org/bioethics/is-financial-abortion-an-idea-whose-time-has-come/12123>.

^[14] Cook (n 13).

^[15] Kerri Sackville, 'Swedish group wants men to be given 'legal abortion' rights ', The Daily Telegraph (Online, 15 March 2016) <https://www.news.com.au/lifestyle/parenting/pregnancy/swedish-group-wants-men-to-be-given-legal-abortion-rights/news-story/8b07c1a8513e6d3bd92d2ba0b490b3d0>.

^[16] Jill E. Evans, 'In Search of Paternal Equity: A Father's Right to Pursue a Claim of Misrepresentation of Fertility' (Pt 2) (2005) 36(4) Loyala University Chicago Law Journal 1045, 1106-1007.

^[17] Ibid.

^[18] Ibid 1048.

^[19] William Blackstone, Commentaries on the Laws of England in Four Books (Clarendon Press, 1765-1770) 447.

^[20] Ibid.

^[21] Evans (n 16), 1047.

^[22] Ibid 3079, citing Pamela P v Frank S 443 NYS 2d 343 (NY Fam Ct, 1981).

^[23] Ibid.

^[24] Ibid.

^[25] Einstadt v Baird, [1972] USSC 61; 405 US, 438 (1972).

^[26] Melanie G. McCulley, 'The Male Abortion: The Putative Father's Right to Terminate His Interests In and Obligations to the Unborn Child' (1998) 7(1) Journal of Law and Policy 23-26. citing Anne M. Payne, ‘Parents Child Support Liability as Affected by Other Parent’s Fraudulent Misrepresentation Regarding Sterility or Use of Birth Control, Or Refusal to Abort Pregnancy’, (1992) 2(5) American Law Reports 337, 350.

^[27] Davis v. Davis, 842 SW 2d 588 (Tenn, 1992).

^[28] Nott (n 4).

^[29] Ibid.

^[30] Evans v Amicus Healthcare Ltd, WSHC 2161, 319 (Fam, 2003).

^[31] Ibid 252.

^[32] Nott (n 4).

^[33] Child Support Enforcement Agency v Doe, 125 P.3d 461, 469 (Haw, 2005).

^[34] Ibid 460.

^[35] N.E. v Hedges, [2004] USCA6 464; 391 F.3d 832 (6^th Circuit, 2004).

^[36] Dubay v Wells (n 8), citing W.E Shipley, Women’s Rights to Have Abortion Without Consent of, or Against Objection of, Child’s Father’, (1975) 3 American Law Reports 1097.

^[37] McCulley (n 26), 26-28.

^[38] Dubay v Wells (n 8), 18-19.

^[39] Deshaney v Winnebago County Department of Social Services, [1989] USSC 28; 489 US 189, 195 (1989).

^[40] Commonwealth of Australia Constitution Act 1900 s51(xxii).

^[41] Termination of Pregnancy Act 2018 (Qld); Reproductive Health (Access to Terminations) Act 2013 (No 72. Of 2013) (Tas) pt 2.

^[42] Termination of Pregnancy Law Reform Act 2017 (NT) pt 2.

^[43] Family Law Act 1975 (Cth) s 61DA.

^[44] Family Law Act 1975 (Cth) s 60B.

^[45] Child Support (Assessment) Act 1989 (Cth) s 3; pt 6.

^[46] Ibid pt 4.

^[47] Goldscheider (n 10).

^[48] Ibid.

^[49] Deveny (n 1).

^[50] McCulley (n 26).

[51] Ibid; Goldscheider (n 3); Deveny (n 1).

^[52] Joseph Millum, 'How Do We Acquire Parental Responsibilities? ' (2008) 34(1) Social Theory and Practice 73, 85.

^[53] Claudia Mills, ‘What Do Fathers Owe their children?’ in A. Byrne. R Stalnaker, and R Wedgwood (eds) Facts and Value: Essays on Ethics and Metaphysics for Judith Jarvis Thomson (A Bradford Book, 2001) 183, 195.

^[54] McCulley (n 26); Ibid.

^[55] Interview with Karen Sjorup, Associate Professor (Kristian Villesan, Information, 6 February 2016) <https://www.information.dk/moti/2016/02/juridisk-abort-god-ting-ogsaa-kvinderne>.

^[56] Deveny (n 1).

^[57] Interview with Sjorup (n 55).

^[58] Rivera v Minnich 483 US 547, 584-85 (1987).

^[59] Kirsten West Savali, 'Should Men Have the Right to 'Financial Abortions'?', 20 December 2011) <https://www.huffpost.com/entry/fathers-financial-abortion_b_1015286?guccounter=1>.