THE FATHER AND THE UNBORN CHILD
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01409.x |
| Author | Isobel Watson,P. T. O'Neill |
| Published date | 01 March 1975 |
| Date | 01 March 1975 |
THE
FATHER
AND
THE
,UNBORN
CHILD
THIS
article is concerned with the rights of the father in his unborn
child.
In
particular, the article examines the questions whether a
father’s consent is necessary for the abortion of his child, whether
the father may prevent such an abortion, and whether the court
should protect the welfare of an unborn child. English law provides
no ready answer to these questions, but it is suggested here that
recent developments in the law relating to parental rights
of
custody,
to the status of the unborn child and to the welfare of children,
support a proposition that a father does have a claim to protect the
life of his unborn child, and that the court should take account of
the child’s welfare in considering whether
it
should accede to such
a claim. In California, U.S.A., both the question
of
the father’s pro-
prietary interest
in
his unborn child and the qucstion of his being
entitled to seek
to
protect that
life
have been raised before the
courts.’
THE
RIGHT
TO
CUSTODY
OF
A
CHILD
(a)
The legitimate child
In
the Middle Ages. the father’s right
to
custody of his legitimate
child was complete and exclusive.
It
was only in the nineteenth
century that the mother could even challenge the father’s right and
an equal right to apply to the court for custody
of
her child was
not given to the mother until the Guardianship of Minors Act 1925.
Ultimately, in the Guardianship Act 1973,
s.
1,
the mother was given
exactly the same rights and authority as the law allows to the father.
Rights
of
husband and wife in the custody and upbringing of their
children are now, therefore, equal
in
all
respect^.^
(b)
The illegitimate child
The progress towards equal rights to custody took a very different
path
in
relation
to
parents of an illegitimate child. The illegitimate
child was regarded in the Middle Ages as a
filius
nullius,
the child
of
no one, neither
of
the putative father, nor of
the
mother.
By
the
beginning of
the
twentieth century the mother had a right of custody
over her illegitimate child, and also a right to obtain maintenance
for the child from the fathera4 But despite this obligation
to
maintain
1
Tortriel
v.
Berivetiisre
(Col.Sup.Ct. October 20, 1961) (see
14
3an.L.R. (1962)
p. 901);
Jones
v.
Smith,
278
S0.R.
2d (1973),
p.
339, 341. See AngleAmerican Law
Review
1974,
p, 436 Delicta in Familiam Amerrcanam (Edward Veitch) at
p.
469.
2
Under the Custody of Infants Act 1839, the wife could be awarded custody
of
a
child until it reached the age of seven years. Under the Guardianship
of
Infants Act
1873, the wife could be awarded custody of a child until it reached the age
of
sixteen
years.
It
was, however, extremely difficult for the wife
to
persuade the court
to
grant
her custody:
De Munneville
v.
De
Munneville
(1804)
10
Ves.Jun. 52.
3
This
is
the position in California also: Cal.Civ.Code para. 197.
4
Bastardy Laws Amendment Acts 1872, 1873; now the Affiliation Proceedings Act
1957.
174
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