The Court does not have the power

Six words. Six very important words in the ongoing struggle for a woman’s right to be seen as more than an incubator. This is only one Judge in the Family Court [in Australia for our o/s readers], and the woman in question said she did not intend to procure an abortion anyway. But still the foetus’ father has not been able to get the order, to force the woman to continue the pregnancy, that he asked for. That’s one teaspoon.

A JUDGE has ruled the Family Court has no power to order a woman not to terminate her unborn child at the request of the baby’s father.

Justice Murphy referred to earlier cases that found ”a foetus has no legal personality and cannot have a right of its own until it is born and has a separate existence from its mother”.

Further, Justice Murphy said there was no common law right of a father to enable him to force the mother to carry a child to term.

However, the fight is not over yet.

Justice Murphy said it was possible a court other than the Family Court may have the power to make the sort of orders Mr Talbot sought, but he was only prepared to consider the Family Court.

Categories: gender & feminism, law & order, Life, parenting, relationships

Tags: , , ,

9 replies

  1. Something I find concerning in this case is that it is a 16yr old girl at the centre of it.

    A girl who already has a nine-month-old baby from a previous relationship.
    Who has been looking out for this kid?

    How old is the dude seeking proprietorial rights over her and her womb.
    I predict he is going to make her life a misery for as long as he can.

  2. Considering he filed the suit even though she didn’t intend to have an abortion in the first place, I’m seeing red flags of controlling asshole. And I notice he intends to sue for full custody, so he really does just see her as an incubator.

  3. Like SunlessNick, I’m getting very bad vibes from the actions of the father in this case. I’m glad that the judge did go beyond dismissing the injunction on the basis that the mother had no plans to have an abortion and ruled that there was no common law right for the father to control the mother’s reproductive choices.
    On another note, does anyone know whether the court ruled on the father’s request that he be notified when the mother went into labour?

  4. I assume that because the Court threw out the case no ruling was made regarding that request. With any luck one of our HaT authors who knows more about the intricacies of the law might be around and can comment further.

  5. He wanted the court to order the woman to allow him into the birthing ward while she was in labour, too. Beyond creepy. Imagine you’re in labour and your abusive ex is there throughout by court order. AFAIK that was thrown out too and rightly so.

  6. Yep, the whole application was thrown out because the judge said the court didn’t have the power to make any of the orders.
    The reason another court might have power to make the kinds of orders sought when the Family Court doesn’t is because the Family Court has very specific, and limited, jurisdiction. The court couldn’t make an order here because its jurisdiction doesn’t extend to the “protection” of a foetus.
    Another court with more general jurisdiction might be able to make orders like those sought, but only if there was a valid legal case in the first place, and I just can’t see one.
    And yeah, what everyone else has said about the social aspects of the case.

  7. I shudder to think what other actions this person might think acceptable.

    If you are comfortable getting a 16yo pregnant, then trying to force her into a potentially dangerous physical situation (for all the naturalness of birth, it is more dangerous than abortion), attend a private moment in her life, and then steal her child, what else might you do?

  8. Childbirth is particularly more dangerous than abortion when you’re a teenager – it’s the leading cause of death world-wide for girls/women in the 15-19 age bracket. (And the risk of death per pregnancy is even higher for under 15s, but fortunately sufficiently fewer are pregnant so that it’s not the leading cause of death in that age bracket.)
    As I understand it, the pelvis and associated muscle and tissue haven’t reached full size and strength yet. I certainly noticed for myself that even though I stopped growing at 13-14, I suddenly did some extra growing around 19 to 21.

  9. There is a U.K. case where a guy had sought an injunction preventing a termination. The Court held that there was no right in law or equity that would ground such an injunction (Paton v Trustees of British Pregnancy Advisory Service [1979] QB 276).

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