Abortion : legal implications for the unwilling father

Abstract

The issue of abortion in Malta is a controversial one. The rights or absence thereof, of the woman regarding abortion have been debated extensively. What has not been so explored are the rights at issue for the biological father. While one can often agree that parents share equal rights and responsibilities with regard to their children, this has not been considered where the child is born without the exclusive intent of one or both parents. The system as it is automatically places on the father the responsibility for maintaining the child, once this is born. What is concerning is the fact that despite this, the legislative authorities, as well as the courts in most countries, have systematically refrained from acknowledging any rights attributable to the biological father with regards to the unborn child during the pregnancy. This study explores the rights that are affected with regards to the man burdened with the responsibility of parenthood because his pregnant partner is unable to terminate an unwanted pregnancy. It will evaluate the effect of this prohibition on the right to respect for private and family life (Article 8 of the ECHR), which also includes the right not to have a family. Since fathers in Malta have no possibility to refrain from genetic parenthood once an embryo is conceived by them, their right to not have a family may be said to be jeopardised. This is justified for the right to life of the unborn child and that of the pregnant woman to have her child born. This dissertation will also consider ideas from legal and sociological scholars who have studied the subject, and also refers to cases brought to the courts of other countries with respect to the father’s rights in abortion. Through such jurisprudence it will elicit issues that have come out as important and thus clarify which are the most pertinent issues to be considered with regards to the biological father should a law decriminalising abortion be enacted in Malta.