Biology Is Not Destiny: Biological Fathers' Rights to Their Newborn Children Born Out of Wedlock in Georgia

• Jurisdiction: Georgia,United States,Federal
• Publication year: 2021
• Citation: Vol. 72 No. 2

Biology is Not Destiny: Biological Fathers' Rights to their Newborn Children Born Out of Wedlock in Georgia

Emory Larkin

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Biology is Not Destiny: Biological Fathers' Rights to their Newborn Children Born Out of Wedlock in Georgia^*

I. Introduction

Leonardo da Vinci, William the Conqueror, Alexander Hamilton, Jon Snow. The common denominator between these seemingly random individuals is that they are all known for being "bastard children."¹ Everyone who followed the popular television series, Game of Thrones, knows Jon Snow was erroneously recognized as the bastard son of his "father," Ned Stark.² Actually, "Snow" was the show's universal last name for all bastard children.³ Likewise, anyone who has seen Hamilton: An American Musical knows Alexander Hamilton was a bastard son who was able to defy the odds and become a founding father

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of the United States.⁴ Bastard children are routinely thought of and portrayed in both history and literature as an "underdog" who had to rise above their misfortunate and disdainful status of illegitimacy.

Today, children born out of wedlock are no longer referred to as "bastards," but many would be surprised that distinctions in laws remain between children born outside of a marriage and their parents. Perhaps the most shocking law in today's day and age is that fathers are not guaranteed an automatic right to their children based on their biological connection. Instead, only biological mothers have all rights and custody to their children. Fathers who are married to the mother are given automatic rights to their children because of their marriage. But, biological fathers who are not married to their child's mother have to jump through certain hoops to have any rights or custody of their children—and those biological fathers may not even be aware of the obstacles they face.

So, for example, in Georgia, a mother could unilaterally put her newborn child up for adoption against the wishes of the unmarried biological father.⁵ Just this year, in 2020, an unmarried biological father in Georgia immediately filed a petition for rights to his newborn child. The mother gave the child up for adoption—the biological father's petition was denied, and the adoption was finalized.⁶ The decision was appealed all the way to the Georgia Supreme Court which upheld the trial court's decision.⁷ Although a biological father may undertake certain steps to prevent the adoption from proceeding, the ability of the biological mother to unilaterally proceed is a chilly reminder that "biology is not destiny."⁸

This Comment argues the unconstitutionality of Georgia's laws concerning unmarried biological fathers' rights to their children could be successfully challenged in the near future, specifically in relation to the unmarried biological father's inability to object to the adoption of his newborn child based on his biological connection to his child alone.

Part II of the comment summarizes the historical importance of marriage in the United States and how marriage has shaped the rights of parents to their children. Part III examines relevant Supreme Court

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of the United States precedent regarding unmarried biological fathers' rights that have provided a baseline for states to develop their laws. The current Supreme Court precedent is easily contrasted with the corresponding Supreme Court dissents of Part IV that take a more liberal approach to unmarried fathers' rights. Part VI analyzes Georgia's current statutes and case law surrounding unmarried biological fathers' rights to their children, specifically in relation to newborn adoption. Finally, Part VII suggests that Georgia's laws surrounding unmarried biological fathers' rights to their newborn children are unconstitutional, and if the United States Supreme Court were to analyze unmarried biological fathers' rights again in today's time, it is probable that unmarried biological fathers would receive stronger constitutional protection.

II. MARRIAGE HISTORY AND IMPORTANCE

Marriage is, and always has been, a basic social and legal institution of our society. Not surprisingly, the law surrounding legitimation stems from the public policy and the history of society favoring marriage. Religious and societal views on morality encouraged the idea of a "traditional family" that consisted of a father, mother, and child.⁹ "Moral laws," such as crimes against adultery, fornication, cohabitation, seduction, and bastardy, all promoted marriage.¹⁰ By the end of the twentieth century, society's attitudes and behavior sparked change. Laws governing sexual relations began to be repealed.¹¹ Society placed less emphasis on the traditional family, cohabitation began to increase dramatically, and people accepted the idea that all families are different.¹²

Still, marriage remains an important part of our society, and there is a long history of the United States Supreme Court emphasizing the importance of a traditional family, which obviously begins with marriage.¹³ The Supreme Court has held that the traditional family unit receives protection from the Constitution through the Equal Protection Clause, Due Process clause, and Ninth Amendment.¹⁴ To illustrate the reasons for the preference toward marriage, in 1965, with

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the landmark case of Griswold v. Connecticut,¹⁵ the Supreme Court described marriage as "a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. . . . [I]t is an association for as noble a purpose as any involved in our prior decisions."¹⁶ Over the years, the Supreme Court has repeatedly deemed marriage a fundamental right.¹⁷

A. Marriage and Children

When two married people have a child, the married couple has all legal rights to the child.¹⁸ Before science allowed for DNA testing, marriage was the only way to ascertain who the father of the child was, even if the husband was not actually the biological father. An American adage summarized this dilemma as "mother's baby, father's maybe."¹⁹

Being married is not only a status, but also thought of as a contractual relationship that gives obligations to the husband and wife and to their children.²⁰ Historically, marriage "effectively barred either spouse from testifying that the husband was not the child's father," and the husband's paternity to the child was "virtually irrebuttable" except in rare instances such as proof of sterility or impotence.²¹ The husband had all legal rights to the child purely by being married to the child's mother.²² This marital presumption still exists today in almost every state.²³

In the limited instances that children were born to married parents who later divorced, historically, English common law gave husbands all custody rights to the child.²⁴ This allocation of custody rights was consistent with other rights given to husbands and not wives, such as the right to buy and sell property.²⁵ In response to the women's rights movement, in 1873, the scale tipped almost completely in the opposite

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direction with the Tender Years Doctrine.²⁶ The United States adopted the doctrine from England which stipulated that a mother should be awarded custody of a child if he or she was under seven years old—in his or her "tender years."²⁷ This doctrine reflected the distinct gender roles placed upon men and women and society and promoted the stigma against fathers caring for their children.²⁸

B. History of Non-Marital Children

At common law, a child born out of wedlock, or a nonmarital child, was referred to as filius nullius—the child of nobody.²⁹ Being a child of no one had a range of consequences, both socially and legally. For example, the nonmarital child could not inherit from either biological parent.³⁰ Illegitimate children were not even recognized under the law as part of the family until the end of the nineteenth century.³¹ English common law and early American law gave no legal relationship rights to nonmarital children or the parents of nonmarital children—even the mothers.³² Therefore, not surprisingly, illegitimacy was an avoided status and before birth control methods were developed, abstinence or marriage were the only ways to avoid having an illegitimate child.

Public policy promoted marriage to prevent children from suffering from the status and stigma that illegitimacy brought. An unwed mother was thought to be disgraceful for having sexual relations outside of marriage, and the child was thought to be a product of that disgrace.³³ As recently as 1979, the Supreme Court characterized being born out of wedlock as a "formidable handicap" because the child would "suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings."³⁴ This characterization was based on a prior study that showed illegitimate children were more prone to medical, emotional, educational, and economic issues.³⁵

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Similar to the stigma against nonmarital children, unmarried fathers, as a class, were generalized and lumped together. In 1972, it was not frowned upon to argue to the Supreme Court that all unwed fathers are "unsuitable and neglectful parents."³⁶ Even Chief Justice Berger echoed this sentiment when he stated that "centuries of human experience" support that unwed fathers "rarely burden the mother or child with their attentions or loyalties."³⁷ It was also argued that "a natural mother . . . bears a closer relationship with her child . . . than a father does."³⁸ And in 1975, the New York Court of Appeals reasoned that the consent of unwed fathers in adoptions should not be needed because it would cause the "cruel and undeserved out-of-wedlock stigma" to continue for the children.³⁹ Needless to say, the status of illegitimacy was considered a genuine concern sought to be addressed by the society and the law.

The simplest solution to ensure biological fathers' rights were protected was to encourage them to marry the mother.⁴⁰ If a father chose not to...