Child Support and Pregnancy

This guest post is from Katerina “K.T.” Fuchs, Regent Law Family Law student and 2022 Graduate:

Recently the abortion debate has shifted towards a debate regarding fetal personhood. Fetal personhood defines life as beginning at conception and has been integrated into arguments and potential laws regarding abortion. One step that states have taken to further the concept of fetal personhood is requiring fathers to pay child support before the child is born.

In 2019 Georgia enacted the Living Infants Fairness and Equality (LIFE) Act (HB 481), which enables a court to implement child support before the child is born, as long as it does not exceed the amount of direct medical and pregnancy related expenses of the mother of the unborn child. Additionally, Georgia allows unborn children to be eligible to be claimed as a dependent on state tax returns. Any unborn child with a detectable human heartbeat qualifies as a dependent minor under Georgia Law.

Congress has also contemplated the legal effects of fetal personhood. The Unborn Child Support Act (Congress.gov “S.3236 — 116th Congress (2019-2020): Unborn Child Support Act,” (Jan. 28, 2020) was introduced to Congress in 2020 but a vote on it was never held. This act would allow a court, after consulting with the mother, to award child support payments while the child is still in the womb and retroactively dating back to the date of conception as determined by a physician. One major change from current law regarding child support is the retroactivity. In general, courts will not apply retroactive child support unless that support is owed to the State as a result of the custodial parent receiving public assistance benefits for the child. The Unborn Child Support Act would not mandate child support, but instead would offer flexibility for mothers who do not want the biological father involved. If the mother chooses to pursue child support, this Act would require judges to consult with that mother on payment plans and would leave the option of retroactive support payments up to the mother’s discretion. Additionally, the Unborn Child Support Act would mandate all paternity tests to be at the discretion of the mother, and would only be performed if there was no risk to the child.

One issue in obtaining child support for an unborn child is establishing paternity. If the father is not willing to acknowledge paternity prior to birth, child support may not be ordered until the paternity test is conducted. Due to the medical risks associated with prenatal paternity tests, most states will not order a paternity test until after the child is born. Consequently, while some states allow a mother to begin establishing paternity and support during pregnancy, if the father refuses to acknowledge paternity, the mother is often left without child support until after the child is born when paternity can be established.

Another issue brought forth by fetal personhood is that by declaring an embryo to be a full legal person, forms of birth control and emergency contraception may be prohibited to protect the child, but women would nonetheless need access to the health care they need.

While the debate over abortion rights is more controversial than ever, the fight has expanded to include child support and paternity issues and anyone interested in following the evolution of abortion in the United States should familiarize themselves with these pertinent family law concepts.