CHAPTER SIX

Having Children

A married couple has been trying to have a child for three years without success. The couple is considering additional ways of having a child, including in vitro fertilization and hiring a surrogate mother. What are the legal issues associated with these options?

The United States Supreme Court has declared that the decision of whether or not to have a child is protected by the right of privacy under the Fourteenth Amendment to the United States Constitution. This means that individuals who wish to have a child cannot be barred from doing so (unless perhaps they are incarcerated). By the same token, individuals who do not wish to have a child have a legal right to obtain and use contraceptives as well to have an abortion.

If a woman becomes pregnant, neither her partner nor the courts can force her to have an abortion. The decision of whether to continue a pregnancy belongs to the woman.

Similarly, one spouse cannot legally force the other spouse to have a child. If one spouse wants to have a child, but the other does not, that could be a basis for a divorce. A disagreement on such a fundamental issue could be an “irreconcilable difference” under the no-fault divorce laws of most states. In states that have grounds for divorce based on someone being at fault, a disagreement on the question of whether to have children might be viewed as “mental cruelty,” and thus a basis for ending the marriage.

• Medically Assisted Pregnancies
• Surrogate Parenthood
• Custody of Frozen Embryos
• Abortion
• Childbirth
• Paternity
• Rights and Responsibilities of Parents
• Neglect and Abuse Laws
• Rights of Children
• Duties of Adult Children Toward Their Parents