A Discussion of Prenatal Child Support Laws

Editor’s note: Many historical aspects of this article have been superseded by The History of Prenatal Child Support in the United States.

Georgia’s House Bill 481 (the Living Infants Fairness and Equality Act) [1] received considerable media attention during spring of 2019 for its text relating to abortions and personhood [2], but discussions glossed over many other provisions within the legislation.  Thus, I once again return to HB 481 to address an aspect which particularly intrigued me: the inclusion of unborn children in alimony and child support requirements of the Official Code of Georgia Annotated § 19-6-15 (a.1).  The applicable text reads:

“1. As used in this chapter, the term ‘child’ means child or children, including any unborn child with a detectable human heartbeat as such terms are defined in Code Section 1-2-1.

2. Notwithstanding any provision of this Code section to the contrary, the maximum amount of support which the court may impose on the father of an unborn child under this Code section shall be the amount of direct medical and pregnancy related expenses of the mother of the unborn child. After birth, the provisions of this Code section shall apply in full. [3]”

I had never heard of the concept of prenatal child support before reading HB 481. This made me wonder if the concept already exists in any other states, and, if so, how frequent is it? As I had done for my previous research, I also started diving deeply into statutes and legislation across the entire United States and quickly found that prenatal child support is not a new idea at all.

In 1941, Nebraska became the first state with such requirements, enacting Nebraska Revised Statutes § 43-1407 with the text:

“The father of a child shall also be liable for the reasonable expenses of the mother of such child during the period of her pregnancy, confinement, and recovery. Such liability shall be determined and enforced in the same manner as the liability of the father for the support of the child.” [4]

Fifteen years later, the Michigan Legislature passed The Paternity Act of 1956.  This legislation assigned liability to both “the parents of a child born out of wedlock” for (a) pregnancy expenses, (b) child birth expenses, (c) the child’s support and education costs, and (d) the child’s funeral expenses. [5]  By the close of the 1950s, Florida had become the only other state to enact applicable legislation with the passage of An Act Relating to Bastardy in Senate Bill No. 119 (1959). This legislation allowed a court to order the father to pay “reasonable attorney’s fees, hospital or medical expenses, cost of confinement, and any other expenses incident to the birth of the child.” [6]

During the 1960s, several more state legislatures enacted prenatal child support laws, but it is not clear exactly how many did so, due to the shortage of easily-accessible legislative session records.  In 1962, the Mississippi Legislature passed Session Law 1962 Chapter 312, which enacted Mississippi Code § 93-9-7.  This required the father to pay “reasonable expense of the mother’s pregnancy and confinement” — whether or not the infant is born alive. [7]  That same year, the New York State Assembly passed the Family Court Act, requiring the father to either assist the mother with costs of “confinement and recovery and such reasonable expenses in connection with her pregnancy” or to reimburse the State for any medical assistance provided to the mother during pregnancy. [8]  Two years later, the Kentucky General Assembly passed Kentucky Acts 1964 Chapter 37 to amend Kentucky Revised Statutes 406.011, adding requirements verbatim to those of Mississippi. [9] In 1967, the North Carolina General Assembly added North Carolina General Statutes § 49-15, which held the father responsible for “medical expenses incident to the pregnancy and the birth of the child.”[10]   The South Dakota Legislature [11], the Oklahoma Legislature [12], and the Idaho Legislature [13] all approved legislation as early as the 1960s, as well.

A turning point came in 1973, when the Uniform Law Commission — a non-partisan organization with the goal of standardizing state laws — published template legislation known as the Parentage Act.  This included the following text in §15(c):

“The judgment or order may contain any other provision directed against the appropriate party to the proceeding, concerning the duty of support, the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child. The judgment or order may direct the father to pay the reasonable expenses of the mother’s pregnancy and confinement.” [14]

Over the next couple decades, several state legislatures used this template to either directly write laws (i.e., Hawaii [15], Missouri [16], Montana [17], and Rhode Island [18]) or as a basis for laws (i.e., Maine [19], Minnesota [20], Nevada [21], Tennessee [22], and Wyoming [23]).

Another milestone came in 1999, when the United States Congress approved 42 United States Code §666, addressing grants to states under the Social Security chapter.  This included subsection (a)(5)(K):

“Procedures under which bills for pregnancy, childbirth, and genetic testing are admissible as evidence without requiring third-party foundation testimony, and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child.” [24]

By 2015, every state and the District of Columbia had at least a minimum level of requirements for a father to pay or reimburse expenses relating to pregnancy and birth. Many state legislatures have also been broadening the child support requirements — including prenatal ones — over the past few decades.  This is what happened in Georgia with the LIFE Act.  Previously, OCGA § 19-7-49 allowed for the presentation of “costs of pregnancy, child birth, and genetic testing” to be submitted to court for reimbursement upon determination of paternity. [25]  The amendment to OCGA § 19-6-15 specifically addresses pregnancy after divorce to impose upon the father support for “the amount of direct medical and pregnancy related expenses of the mother of the unborn child” while pregnancy is still ongoing. [26]

As I began research for legislation and statutes concerning prenatal child support, I expected to find either that the concept was completely new to Georgia or that only a small number of states had such requirements. The discovery of nationwide requirements surprised me. It also makes me wonder just how well-known prenatal child support laws are. Women who find themselves abandoned by men while pregnant may not realize that they have legal recourses or financial assistance available to them.  According to a 2004 Guttmacher Institute study, 73% of women have abortions because of financial insecurity. [27]  How much reduction would there be of abortions for this specific reason if prenatal child support laws were better known?

ADDENDUM: How do prenatal child support requirements work?

There are three primary methods for initiating prenatal child support:

• Direct acknowledgement by the father without genetic testing (e.g., Alabama [28], California [29], Connecticut [30], and Rhode Island [31])
• Assumption of paternity in divorce or legal separation (e.g., Georgia [32], Kentucky [33], and Wyoming [34])
• Interim payment by government agency or private organization to be reimbursed upon establishment of paternity (e.g., Hawaii [35], Illinois [36], Maine [37], Massachusetts [38], New York [39], Oklahoma [40], and Virginia [41])

Using the United States Code as a baseline, they all have some level of requirements for reimbursement through court proceedings and manners of addressing what happens when fathers live in another state.

The amounts for payments come in multiple tiers:

• Joint responsibility (e.g., Michigan [42] and South Dakota [43])
• At least 50% of expenses (e.g., Indiana [44])
• Up to 100% of expenses (e.g., Georgia [45], North Carolina [46], Ohio [47], Oklahoma [48], and Wyoming [49])
• Reasonable portion of expenses (most states)

Many statutes also have additional provisions relating to these topics:

• Preventing termination of paternity at birth (such as when the mother plans to give up the child for adoption)
• Visitation rights by the father or the father’s relatives
• The father’s name on the birth certificate (added or removed, depending on circumstances)
• Methods of collection (e.g. state agency, private organization, etc.)
• Miscarriages and stillbirths
• Pregnancy from rape (by either the father or the mother)

(These provisions are beyond the scope of this article, so it is advised to contact the child support agencies in each state for specific details.)

References:

1. Living Infants Fairness and Equality (LIFE) Act (House Bill 481, Ga., 2019). http://www.legis.ga.gov/Legislation/20192020/187013.pdf.
2. Gump, Daniel “Analysis of Georgia’s Living Infants Fairness and Equality (LIFE) Act,” Human Defense Initiative. July 12, 2019. https://humandefense.com/analysis-of-georgias-living-infants-fairness-and-equality-life-act/.
3. Official Code of Georgia Annotated § 19-6-15 “Alimony and Child Support” (Ga., 2020)
4. Nebraska Revised Statutes § 43-1407 “Liability of father” (Neb., 1941) https://nebraskalegislature.gov/laws/statutes.php?statute=43-1407.
5. Michigan Compiled Laws § 722.712(1) “The Paternity Act” (Mich., 1956) http://legislature.mi.gov/doc.aspx?mcl-722-712.
6. Florida Statutes § 742.031(1) “Determination of Parentage” (Fla. 1959 ch.45) http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0742/Sections/0742.031.html.
7. Mississippi Code Annotated § 93-9-7 “Obligations of father” (Miss., 1962 ch. 312) https://advance.lexis.com/container?config=00JAAzNzhjOTYxNC0wZjRkLTQzNzAtYjJlYS1jNjExZWYxZGFhMGYKAFBvZENhdGFsb2cMlW40w5iIH7toHnTBIEP0&crid=6568304f-391f-4827-aba0-c153ee3d48bf&prid=5f1aac61-fdfd-45b3-8daa-9722e69e4d96.
8. New York FCT § 5-514 “Liability of father to mother” (NY, 1962 ch.686)  http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:.
9. Kentucky Revised Statutes 406.011 “Obligations of the father” (Ky., 1964) https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=17610.
10. North Carolina General Statutes § 49-15 “Custody and support of children born out of wedlock when paternity established” (NC, 1967 ch.993) https://www.ncleg.gov/enactedlegislation/statutes/pdf/bysection/chapter_49/gs_49-15.pdf.
11. South Dakota Codified Laws § 25-8-3 “Father and mother’s liability for confinement expense” (SD, 1960-1984?) https://sdlegislature.gov/Statutes/PrinterStatute.aspx?Type=Statute&Statute=25-8-3.
12. 10 Oklahoma Statutes §83 “Liability of Father to Support and Educate Child” (Okla., 1695-1991?) www.oscn.net/applications/oscn/deliverdocument.asp?id=466490.
13. Idaho Statutes § 7-1121 “Proceedings to establish paternity” (Idaho, 1969-1997?) https://legislature.idaho.gov/statutesrules/idstat/Title7/T7CH11/SECT7-1121/.
14. Green, Lewis C., et al. (1973) “Uniform Parentage Act” Uniform Law Commission. https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=24e42c1a-59ac-b0b7-d35b-7900b6093dc8&forceDialog=0.
15. Hawaii Revised Statutes §584-15 “Judgment or order” (Hawaii, 1975) https://www.capitol.hawaii.gov/hrscurrent/Vol12_Ch0501-0588/HRS0584/HRS_0584-0015.htm.
16. Missouri Revised Statutes § 210.841 “Judgment or order” (Mo., 1987 or 1993 or 1997) https://revisor.mo.gov/main/OneSection.aspx?section=210.841&bid=11425.
17. Montana Code Annotated § 40-6-116 “Judgment or order” (Mont., 1975) https://leg.mt.gov/bills/mca/title_0400/chapter_0060/part_0010/section_0160/0400-0060-0010-0160.html.
18. Rhode Island General Laws §15-8-1 “Obligations of the father” (RI, 1979) http://webserver.rilin.state.ri.us/Statutes/TITLE15/15-8/15-8-1.HTM.
19. Maine Revised Statutes Title 19-A, §1553 “Enforcement” (Maine, 1989) www.mainelegislature.org/legis/statutes/19-A/title19-Asec1553.html.
20. Minnesota Statutes § 257.66 “Recognition of parentage” (Minn., 1980) https://www.revisor.mn.gov/statutes/2019/cite/257.66.
21. Nevada Revised Statutes § 126.181 “Enforcement of judgment or order” (Nev., 1979) https://www.leg.state.nv.us/Division/Legal/LawLibrary/NRS/NRS-126.html.
22. Tennessee Code Annotated § 36-2-311 “Order of parentage” (Tenn., 1997) https://advance.lexis.com/container?config=014CJAA5ZGVhZjA3NS02MmMzLTRlZWQtOGJjNC00YzQ1MmZlNzc2YWYKAFBvZENhdGFsb2e9zYpNUjTRaIWVfyrur9ud&crid=f9f370e5-0300-4003-b28b-c85d28f28bee.
23. Wyoming Statutes § 20-2-307 “Child support” (Wyo., 1977) https://wyoleg.gov/statutes/compress/title20.pdf.
24. 42 United States Code §666(a)(5)(K) “Child Support and Establishment of Paternity” (US, 1999) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section666&num=0&edition=prelim.
25. Official Code of Georgia Annotated § 19-7-49 “Determination to paternity” (Ga., 1980) https://advance.lexis.com/container?config=00JAAzZDgzNzU2ZC05MDA0LTRmMDItYjkzMS0xOGY3MjE3OWNlODIKAFBvZENhdGFsb2fcIFfJnJ2IC8XZi1AYM4Ne&crid=763c9975-7982-4ee7-8ae3-16b8bb4172ac&prid=a0016d10-04d3-47a6-9364-dbf37a098376.
26. Official Code of Georgia Annotated § 19-6-15 Ibid.
27. Finer, Lawrence B. “Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives,” Guttmacher Institute. September 2005.  January 26, 2020. https://www.guttmacher.org/journals/psrh/2005/reasons-us-women-have-abortions-quantitative-and-qualitative-perspectives.
28. Alabama Code § 26-17-305(b) “Effect of acknowledgement of paternity” (Ala., 2008) http://alisondb.legislature.state.al.us/alison/CodeOfAlabama/1975/26-17-305.htm.
29. California Family Code § 7641(a) “Determination of Parent and Child Relationship” (Cali., 2013) https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=7641.
30. General Statutes of Connecticut 46b-172a(a) “Filing of claim for paternity by putative father” (Conn., 1990) https://www.cga.ct.gov/current/pub/chap_815y.htm.
31. Rhode Island General Laws §15-8-2 Ibid.
32. Official Code of Georgia Annotated § 19-6-15 Ibid.
33. Kentucky Revised Statutes 406.011 Ibid.
34. Wyoming Statutes § 20-2-307 Ibid.
35. Hawaii Revised Statute §584-15 Ibid.
36. Illinois Compiled Statutes 720 § 46/813 “Support payments” (Ill., 2015) www.ilga.gov/legislation/ilcs/documents/075000460K813.htm.
37. Maine Revised Statutes Title 19-A, §1553 Ibid.
38. Massachusetts General Laws Ch 209C § 9 “Judgment or order for support” (Mass., 1993) https://malegislature.gov/Laws/GeneralLaws/PartII/TitleIII/Chapter209C/Section9.
39. New York FCT § 5-514 Ibid.
40. 10 Oklahoma Statutes §83 Ibid.
41. Code of Virginia § 20-49.8(A) “Judgment or order” (Va., <=1992) https://law.lis.virginia.gov/vacode/title20/chapter3.1/section20-49.8/.
42. Michigan Compiled Laws § 722.712 Ibid.
43. South Dakota Codified Laws § 25-8-3 Ibid.
44. Indiana Code 31-14-17-1 “Expenses of mother’s pregnancy and childbirth” (Ind., 1997) http://iga.in.gov/legislative/laws/2019/ic/titles/031.
45. Official Code of Georgia Annotated § 19-6-15 Ibid.
46. North Carolina General Statutes § 49-15 Ibid.
47. Ohio Revised Code § 3111.13(C) “Judgment or order” (Ohio, 2001) http://codes.ohio.gov/orc/3111.13v1.
48. 10 Oklahoma Statutes §83 Ibid.
49. Wyoming Statutes § 20-2-307 Ibid.

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The views and opinions expressed in this article are those of the author and do not necessarily reflect the official position of Human Defense Initiative.