The GULS Law Review

Getting you through the GU law degree!

header photo

Should Men be Entitled to Reject Legal Fatherhood During the Early Stages of Pregnancy? An Analysis in Light of the ECHR

Written by Julian Stein studying LLM in Intellectual Property and the Digital Enviroment

Although the United Kingdom does not allow abortions upon request under s1(1) of the Abortion Act 1967, the vast majority of countries in Europe, Asia and Northern America allow pregnant women to have their pregnancy terminated with little requirements.[1] In those countries, a woman can decide after conception if she wishes to take the responsibilities of motherhood or rather have an abortion. Since such a medical procedure is a serious interference with the woman's body, in the end it is her own decision to follow through with the abortion. The consent of the child's father is not needed, however this has been contested several times.[2]

If a man is faced with unwanted fatherhood, he needs to accept social and financial liability, provided the mother does not choose an abortion on her own. This situation leads to the question of gender equality in the choice of parenthood after impregnation. The incentive for this article is a collection of threads in the social news website Reddit. Under the categories of 'MensRights'[3] and 'AskWomen'[4] it was discussed heavily if men should be able to opt out of social and financial responsibilities of their fatherhood as an equivalent to the possibility of abortion for women.  The questions on the scope of this disputed right and the resulting issues in human rights will be dealt with in turn.

The supporters of the idea proposed different ways to realise a legal abortion for men. One option is the right to a financial abortion, which would mean a right to refuse payment of alimony to mother or child, leaving social responsibilities as well as other rights such as visitation rights and co-decision rights unaffected. Another option is to 'abort' all obligations of fatherhood, social as well as financial. This way the father retains fatherhood on paper as well as social rights such as visitation rights. The last option is to abort fatherhood completely. The result is that on paper the biological father of the child is considered a stranger with no rights or obligations.

All these options give the soon-to-be father protection towards responsibilities. The main fear of unwanted fatherhood is usually the large financial burden a child brings. A financial abortion eases this fear through relief from this obligation. However, social obligations remain as well as the rights a father has towards his child and its mother respectively. Abortion of all obligations is perhaps the most favourable option for men as it gives them the best possible protection from the obligations of fatherhood while keeping their rights towards the child intact.

Most drastic of all possibilities is to abort fatherhood entirely. Besides abolition of financial and social responsibilities and obligations the father retains no legal rights towards his child and is no longer the legal father.

It has to be kept in mind that the concept of a legal abortion for men seeks to give men an instrument equivalent to the termination of pregnancy for women and no more. To absolve a man from his duties and obligations as a father but at the same time allow him all rights from fatherhood does not compensate (a supposed) gender inequality but creates a new one, this time grossly to the detriment of women. Therefore, the only feasible solution is to rescind fatherhood altogether and declare the biological father legally a stranger to his child. Of course this proposition raises issues of human rights of the mother and the child. These will be addressed in light of the ECHR.[5]

The first issue is if the rights of the child's mother are infringed by the possibility of a legal abortion by the father. Article 8(1) of the ECHR grants everyone 'the right for his private and family life […]'. Although at first glance it seems like this issue falls within the scope of protection of this human right, but it has already been decided that Article 8(1) only protects the exercise of this right, not the right to actually found a family.[6] Even if a family life existed before either in the form of marriage or another close relationship between mother and father of the future child and this relationship has been broken off due to personal reasons, the instrument of legal abortion would not infringe on this right since family life requires 'real existence in practice of close personal ties'.[7] Where these ties do not exist there is no family life and thus no protection. However, the right of private and family life of the child could be infringed. The obvious difference between an abortion and a 'legal' abortion is the fact that in the latter case, a child is still born. It might not have a legal father in this case but it is a human being equipped with rights.

The right of private and family life would be infringed if there are close personal ties between the father and his child.[8] The mere fact of biological fatherhood is not sufficient to establish such personal ties.[9] Therefore, since the father would refrain from his responsibilities before birth, there is no family between him and his child and no infringement.

Not only family life but also private life is protected by Article 8(1) and even if there is no family life between child and father, the private life of the child might be concerned if it has no legal father. Private life 'can [...]embrace aspects of an individual's […] social identity'.[10] In this relation, the ECtHR held 'that respect for private life requires that everyone should be able to establish details of their identity as individual human beings […] because of its formative implications for his or her personality'.[11] But the absence of legal fatherhood does not imply secrecy of the biological fatherhood. In some cases the mother of the child will know details about her child's father and disclose them to them  and there is no reason to refuse the child the option of searching for his biological father and establish details of his identity. However, it remains questionable if the absence of a legal father affects the social identity of a child provided there is still the option of knowledge about their biological father.

Another issue is that of gender discrimination. Article 14 of the Convention dictates 'the enjoyment of the rights and freedoms set forth in [the] convention shall be secured without discrimination on any ground such as sex […]'. Although the proposition of men's legal abortion aims to achieve equal rights to anticipated parenthood for both genders, it might still be discriminatory against women. In Thlimmenos v Greece[12] it was held that Article 14 is to be interpreted in a way that not only persons have to be treated equally but also need to be treated differently if their situations are significantly different. Therefore, if both men and women have the right to opt out of legal parenthood, discrimination against women can subsist if they are in a significant different position. Although member states have a certain margin of appreciation whether different treatment is appropriate, 'weighty reasons […] have to be advanced before a difference of treatment of the ground of sex could be regarded as compatible with the Convention'.[13] If it can be argued that the expecting mother has to undergo an invasive medical procedure to abort a baby, a procedure which the child's father cannot undergo himself for obvious reasons, is to be considered a significant difference. The German Federal Constitutional Court ruled in a case relating to military service that mandatory service for men is not discriminatory in the light of Article 14 of the ECHR since the different treatment is grounded on natural differences in the genders.[14] The situation of pregnancy is in general a similar one. There is a natural difference between men and woman for only women can conceive a child and become pregnant. Therefore different treatment might be justified.

Despite the requirement of weighty reasons in the case of different treatment of people on the ground of sex, member states 'enjoy a certain margin of appreciation in assessing whether and to what extent differences between otherwise similar situations justify a different treatment.'[15] Hence it could be in the margin of appreciation of the member state to decide that men should be allowed to opt out of fatherhood as a non-discriminatory measure towards gender equality.

It is quite interesting that the ECHR and its interpretation by the ECtHR do not categorically deny men the possibility to renounce their legal fatherhood and thus abolish their legal responsibilities. But there are two major issues with this proposal, the questions of infringement of the child's right to personal life and the margin of appreciation of member states concerning gender equality. Both issues arise out of the main differences between a legal abortion of fatherhood and the termination of pregnancy: after the termination of a pregnancy, there will be no child and only a woman can become pregnant and therefore make decisions with regard to the integrity of her body. It might be true that men do not have the same possibilities to evade their responsibilities of having a child, but this difference is grounded on a difference in the sexes. Gender equality is an important issue but it has to be kept in mind that the genders are biologically different and in some cases not only need but also deserve different treatment. It is a different question if termination of pregnancy upon request should be legal, but opting out of parenthood should not be possible because children need parents and their support, financially and also socially.


[1] See

[2] For example (cases relating to abortions out of medical reasons) see Paton v British Pregnancy Advisory Service Trustees [1979] Q.B. 276,the following ECtHR case Paton v United Kingdom (1981) 3 E.H.R.R. 408 and under Scots Law Kelly v Kelly (1997) S.L.T. 896.


[4] and

[5] European Convention for the Protection of Human Rights and Fundamental Freedoms, as enacted on 03/09/1953.

[6] EB v France (2008) 47 E.H.R.R. 21 at 41.

[7] K and T v Finland (2003) 36 E.H.R.R.18 at 150.

[8] Ibid.

[9] Lebbink v Netherlands (2005) 40 E.H.R.R. 18 at 37.

[10] Mikulic v Croatia, EctHR Judgement from 07/02/2002, Application No. 53176/99 at 53.

[11] Ibid, at 54.

[12] (2001) 21 E.H.R.R. 15 at 44.

[13] Abdulaziz, Cabales and Balkandali v The United Kingdom, ECtHR Judgement from 28/05/1985, Application No.9214/80; 9473/81; 9474/81 at 78.

[14] German Federal Constitutional Court, (2006) Neue Juristische Wochenschrift, 2873.

[15] Chassagnou v France, (2000) 29 E.H.R.R. 615 at 91.                  


Go Back