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Birth Is Mom, Center Stage. End Of Discussion.

New Jersey Employment and Civil Rights Attorney Discusses Plotnick v. DeLuccia, Estranged Father Excluded From Delivery Room

Mandatory disclaimer, first. I'm a dad. I was there when my son was born, and it was the happiest moment of my life next to marrying his mother. I wouldn't have missed it for the world.

Then again, while this certainly wasn't a relaxing process for me, it was a bit more difficult for my wife. She was the one pushing a large object through a small opening. She was the heavily drugged one, and she was the one with monitors hooked up. Remember, while it doesn't much happen anymore in the developed world, moms do die delivering kids; dad's don't.

I'm not saying that my son doesn't need me as much as he needs his mother. He loves us both equally but differently, I'm sure, and we both love him equally but differently. He's fortunate to have a mother and a father, and we're fortunate to be his parents.

Yet in the moment of his arrival, and certainly, in the tense moments leading up to it, my wife regarded me as comfort and a help, far more so than the "professionals" who moved through the process without any personal investment in its ultimate outcome. My wife wanted me to be there as much as I wanted to be there. I was an emotional stabilizer for her.

But what if I wasn't? What if she and I had become "estranged" from one another - a rather innocuous word - which can convey a rather significant, and sometimes very negative, range of near-endings and actual endings to a relationship? What if we were fighting with one another pretty consistently or what if one or both of us no longer trusted the other, had been betrayed by the other, had been violent with the other, etc? What if we just downright didn't like each other anymore, or worse, hated one another?

Pretty stressful to be around one another, right?

A lot goes on during the birthing process. The woman's body goes through a lot, and nature's sloppy. Before modern medicine, human females died in childbirth as often as any other mammal does (which is a damn lot more often than anyone would like). Delivery can be terrifying for a woman who may have health problems or health concerns, or who, perhaps, doesn't even know she has those concerns, and finds out during the birth process that she does, and that she, and/or the baby, are in trouble.

This is not a time to have one's cortisol levels go up. This is not a time to cause involuntary muscle contractions borne of anger, fear or negative emotions that distract the mother from the tremendously hard work she has to do to deliver that kid, and to listen to the instructions of the midwife or the physician attending while she does so. This is not a time to put the mother or the baby at risk, especially if the "estranged" dad loves the baby as much as he says he does.

To put all that in mathematical terms, Childbirth + added stress = bad for mom + danger to baby.

By the way: none of that comes from my "legal" training or my "legal" mind. That all comes from my humanity. It comes from the fact that I'm a husband and a father and I remember that day, and the months leading up to it. It comes from life experience and common sense.

Now, why did I mention all of this? Because a family law court recently decided an issue addressing this issue in Plotnick v. DeLuccia, a family court case from Passaic County. Put simply, fundamental Constitutional rights are at stake when addressing the question outside of the realm of common sense. Does the biological father of a child which is about to arrive have a "Constitutional right" to be present at the birth of that child even when the mother doesn't want him to be?

Steven Plotnick, the father, asked the Family Court in November for an order that would allow him to be notified when Rebecca DeLuccia, the mother, went into labor. He asked that the same order allow him to be present when the baby was born. He also wanted the right to sign the baby's birth certificate, have his last name entered on the certificate, and be given parenting time, but none of those other requests are germane here. The issue for us is whether or not he gets to be there while the mother is delivering.

Judge Sohail Mohammed ruled that the mother's right to privacy trumped the father's "right" to be present at the birth of his kid:

"Any interest a father has before a child's birth is subordinate to the mother's interests. Even when there is no doubt that father has shown deep and proper concern and interest in the growth and development of the fetus, the mother is the one who must carry it to term."

The Judge was dealing with an issue of "first impression", which means it's never been resolved by a New Jersey Court ruling. He looked to established precedent, most notably Roe v. Wade, the case which overturned laws forbidding abortion, as well Planned Parenthood v. Casey, which dumped a state law that required women to tell their husbands when they were having an abortion.

The Judge's thought process in light of those cases was that to rule for the father:

"...would create practical concerns where the father's unwelcome presence could cause additional stress on the mother and child. Moreover, such a finding would also lead to a slippery slope where the mother's interest could be subjugated to that of the father's."

There seems to be some confusion now, about whether or not Plotnick really wanted to be present in the delivery room itself or simply wanted immediate access to "bond" with the baby as the mother would have (and as a father would have who was present for the delivery because he wasn't "estranged").

As we would all expect, the decision set off a fire storm, with women's health and privacy advocates on one side, and those who argue about a perceived anti-male bias in the courts, on the other.

I'm not about to resolve that debate. I'm also not about to castigate anyone on either side of that debate, because everyone's got a pretty damn good point. There has always been an anti-male bias in family law in the United States, not just in New Jersey. That's being repaired, however, and every year that goes by equalizes what are improper and unwritten "assumptions" about the greater fitness of a mother over a father. Getting into the metaphysics and philosophy of what a female who carried a baby is capable of doing by way of rendering love to a child verses a non-carrying father, and all those silly arguments about biological imperatives, aside, there are great moms and great dads and there are bad moms and bad dads. Yet at the end of the day, medical common sense, fundamental fairness, health privacy laws, and fundamental privacy rights all mitigate strongly in favor of a mother's right to exclude the father from the delivery room if she chooses to do so. That's not to say that the dad doesn't have the immediate right, assuming that other orders haven't already been entered about custody, to bond with the child, but he doesn't get to do it while he's standing there next to the mother with whom he's effectively at war, waiting for the child to arrive.

As a civil rights attorney, as a father, and as a husband, the Judge's decision makes sense. No one ever said having a Constitutional republic was easy.

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