Who makes the decision to become a parent?

The Supreme Court declared in the 1973 case of Roe v. Wade that the decision whether to have a child is very personal and is protected by the right to privacy under the U.S. Constitution. This means that individuals who wish to have a child cannot be barred from doing so (unless, perhaps, they are incarcerated). Individuals who do not wish to have a child have a legal right to obtain and use contraceptives.

What if one spouse wants children and the other does not?

If one person in the marriage wants a child and 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 could be viewed as mental cruelty, and thus a basis for ending the marriage.

Beyond divorce, remedies are limited. The courts cannot force a pregnant woman to stop the pregnancy, nor does the law require a wife to have her husband's permission for an abortion.

American Bar Association Family Legal Guide
Copyright © 2004 American Bar Association