Custody case brings up father's rights to an unborn baby

A celebrity custody battle over a 9-month-old baby has courts debating whether a fetus is a baby or a part of its mother’s body. The case in question asks whether a mother had the right to move across the country and away from the father while pregnant.

Bode Miller, alpine skiing Olympic gold-medalist, and Sara McKenna, former U.S. Marine and firefighter, had a brief relationship in 2012 from which McKenna became pregnant. Miller claimed McKenna moved from California to New York while pregnant to keep him out of his child’s life. McKenna said she moved across the country to attend Columbia University. She also said Miller initially showed no desire to be a part of the child’s life. According to Fox News, McKenna released a text message from Miller in June 2012 refusing to come to her ultrasound and saying, “U made this choice against my wish.”

But in November 2012, Miller changed his mind. He filed papers with the San Diego County Family Court claiming paternity for the child. Shortly thereafter, a pregnant McKenna left for New York.

Days after her child’s birth, McKenna petitioned for temporary custody in New York, but New York family court attorney referee Fiordaliza Rodriguez sent the case back to California. Though she did not accuse McKenna of abduction, Rodriguez faulted McKenna for acting in her own best interest and not her son’s, who was still unborn, when she moved almost 3,000 miles away from his father.

“Her appropriation of the child while in utero was irresponsible, reprehensible,” wrote Rodriguez, and her “wrongful conduct must not be rewarded.” Soon after, a California court awarded temporary custody to Miller and his wife, professional volleyball player Morgan Beck, whom he married while McKenna was pregnant.

Various women’s advocacy and reproductive rights groups claimed the New York ruling denied McKenna her rights by restricting her from doing what she wanted with her body. Slate magazine senior editor Emily Bazelon said the case “treated a fetus as a child, for the purposes of a custody battle.” She concluded, “The old legal problem was deadbeat dads. The new one is fathers so eager to assert themselves that they run over women’s rights.”

In November, a New York appellate court reversed the former decision, sending the case back to a Manhattan family court that temporarily restored custody to McKenna. At a Dec. 9 hearing in New York, the couple agreed to share custody until a court date on March 31. Part of the agreement includes Miller taking the 9-month-old with him to the Winter Olympics in Sochi, Russia.

Lori Kehoe, executive director of New York State Right to Life, argues that pro-abortion groups want fathers to have all the responsibilities of fatherhood, but none of the rights.

“This case highlights a tragic inconsistency in our laws,” Kehoe said. “A father has rights and responsibilities when a mom chooses to give birth to their child, but he has no rights before his baby is born.... The pro-abortion position that the father should not have any concern over a mother taking his child away seems on a collision course with itself.”