Plotnick v. DeLuccia: A case of first impression

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Photo above is by Nevit Dilmen 

Seeking to establish a fundamental right where none exist isn’t unusual, but a court actually creating a new right is. Plotnick v. DeLuccia is a case of first impression not only for the state of New Jersey, but in any state, according to a New Jersey Judge.

The case was decided in November 2013, but was not published until March 10, 2014. Stephen Plotnick, the plaintiff and putative father, argued in part that he had a right to be notified when his ex-fiancé, the defendant, Rebecca DeLuccia, gave birth to their child. He also claimed that he had a right to be in the delivery room.  He sought a temporary mandatory injunction order to make himself clear. A putative father generally means, “a man whose legal relationship to a child has not been established but who … [c]laims that he may be the biological father of a child who is born to a woman to whom he is not married”  … [.]

While the injunction had other requests from Plotnnick, what touched a nationwide nerve were Plotnick’s efforts to establish that he had a right to be notified when DeLuccia went into labor, and that he also had a right to be present in the delivery room.

The court said no such rights existed. Plotnick could cite no state precedent or statute that would place his rights over DeLuccia’s. But despite this, some fathers’ rights groups are now saying that the decision is discriminatory because the ruling appears to apply only to biological fathers not married to the mother. While the ruling may look and feel discriminatory it’s not.


From YouTube video of The Young Turks channel
From YouTube video of The Young Turks channel

Right to Privacy- Fundamental

Because this is a case of first impression, from which the court has no New Jersey precedent or statute for guidance, it looks to landmark Supreme Court cases for a rationale. “The United States Supreme Court first opined in Roe v. Wade, 410 U.S. 113, 154, 93 S. Ct. 727, 35 L. Ed. 2d 177-8 (1973) that women have a fundamental, but not absolute, right of privacy that includes the right to control their bodies during pregnancy founded in the Due Process Clause.”

Depending on the stage of pregnancy, the state and the mother both have a legitimate interest in the protection of the unborn child. The creation of “choice” means the mother’s interests trump the father’s.

The[K3]  court also invokes the concept of “choice” in another Supreme Court case: Planned Parenthood v. Casey.  There, the Court found that it was “an undue burden” on the mother to require spousal notification before an abortion. While the court does recognize the father’s concern and interest in his wife’s pregnancy, the Court here noted that “even between a husband and wife the mother’s interests prevail …[.]” Most notable is the Court’s focus on the privacy right of the individual, married or single:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses[K4] .

Plotnick’s argument would fail under the New Jersey Constitution as well with the court noting  “… [U]nder Article 1 Paragraph 1 of the New Jersey Constitution, the court finds that the mother enjoys a fundamental right to privacy until her child’s birth. The father also enjoys a pre-birth interest in the child. However, that interest is not equal to the mother’s constitutionally recognized right or privilege.”

Essentially, whether married or unmarried, the father in any case, cannot assert his authority such that it interferes with the mother’s freedom of choice. If the mother doesn’t have to notify the father in the instance of an abortion, why should she notify the father when she’s about to go into labor?

Even more so, why should the father have a fundamental right to be in the delivery room? The court also points out HIPPA laws which protect patient privacy. Because DeLuccia engaged in a relationship with the hospital as a patient, the court found HIPPA privacy laws would naturally apply here as well.

From YouTube video of The Young Turks channel
From YouTube video of The Young Turks channel

In summary, the mother’s pre-birth relationship with her unborn heavily weighs in her favor and her privacy interests are protected under the Due Process Clause of the Fourteenth Amendment.

What are the implications of Plotnick v. DeLuccia?

This case finds that a putative father has no recognized right to be in the delivery room. But what about non-putative fathers who want to be a part of the birth or witness the birthing process? After all they did father the child.

Some against the ruling point to procreation as a “team effort.” Based on this case, it doesn’t seem to matter. The mother’s privacy interest and HIPPA laws prevail over the father’s interest. There’s no doubt giving birth, while joyful, is stressful, painful and can be chaotic. If the mother’s wishes are to experience this life-changing event without the father/putative father, it’s her body  … making it her call.

Still more questions will surface. What about same sex couples? Will proposed legislation follow to strip the rights of mother’s as a result of this court’s findings? It’s a landmark decision, so some sort of legislation wouldn’t be far-fetched.  New Jersey makes it clear:  Mom will prevail. Fathers and putative fathers do have rights. They just don’t extend into the delivery room.