Prenatal Abandonment: 'Horton Hatches the Egg' In the Supreme Court and Thirty-Four States

Abstract

This article addresses an issue critical to forty-one percent of fathers in the United States: prenatal abandonment. Under prenatal abandonment theory, fathers can lose their parental rights to non-marital children if they do not provide prenatal support to the mothers of their children. This is true even if the mothers have not notified the fathers of the pregnancy and if the mothers or fathers are unsure of the fathers’ paternity. While this result may seem counterintuitive, it is necessitated by demographic trends. Prenatal abandonment theory has been structured to protect mothers, fathers, and fetuses in response to a number of social factors: the link between pregnancy and increased rates of sexual assault, domestic violence, and domestic homicide; the high non-marital birth rate; the commonality of casual sexual relationships; the likelihood that non-marital children will live in poverty; and poverty’s deleterious effects upon children. The 2013 United States Supreme Court’s decision in Adoptive Couple v. Baby Girl endorsed prenatal abandonment theory and elevated the rights of pregnant women and fetuses while tying an unwed father’s rights to the responsibilities he assumes from the moment of conception. This Article analyzes relevant socio-demographics and comprehensively reviews existing case law to conclude with recommendations for the structure of prenatal abandonment theory as it now exists in various forms in thirty-four states.