Safe Haven, Adoption and Birth Record Laws: Where are the Daddies?

• Author: Jeffrey A. Parness - Therese A. Clarke Arado
• Position: Professor, Northern Illinois University College of Law. J.D., The University of Chicago; B.A., Colby College - Associate Professor, Northern Illinois University College of Law. J.D., The John Marshall Law School; M.L.S., Dominican University; B.B.A., Loyola University of Chicago
• Pages: 207-252

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SAFE HAVEN, ADOPTION AND BIRTH RECORD LAWS: WHERE ARE THE DADDIES?

JEFFREY A. PARNESS^∗ & THERESE A. CLARKE ARADO^†

INTRODUCTION

In this Paper we explore the difficulties in American state safe haven, adoption and birth record laws, crystallized in the question: “Where are the daddies?” After briefly reviewing safe haven laws, we demonstrate how paternity interests are unreasonably, if not unconstitutionally, foreclosed when children are abandoned by their mothers. Comparable paternity losses due to maternal acts are then shown in adoption and birth record laws. Lost daddies are unwarranted because laws should not allow maternal privacy rights and interests to so easily foreclose chances for responsible fatherhood, especially in settings where births result from consensual sex between unwed partners. We conclude with suggestions on paternity law reforms.

I. SAFE HAVEN LAWS AND LOST PATERNITY

A. Equality for Mothers and Fathers

The pursuit of greater equality between genetic mothers and genetic fathers, regardless of marital status, has long been an important American goal.¹For example, in 2003 in Rosero v. Blake²the North Carolina Supreme Court eliminated the common law rule that the custody of a non
Copyright © 2007, Jeffrey A. Parness & Therese A. Clarke Arado.

∗ Professor, Northern Illinois University College of Law. J.D., The University of Chicago; B.A., Colby College. An earlier version of this Paper was presented at the Third Annual Wells Conference on Adoption Law under the title, “Safe Haven Laws: Where Are the Daddies?” The conference was held at Capital University Law School on February 15, 2007 under the title, “No Parent Left Behind: Fathers’ Rights in Adoption.”

† Associate Professor, Northern Illinois University College of Law. J.D., The John Marshall Law School; M.L.S., Dominican University; B.B.A., Loyola University of Chicago.

¹We do not herein explain the merit in our underlying assumption that, at least for children born as a result of consensual sex, i.e., no rape or other violence or fear of harm, usually there should be a mother and a father under law. On the value of two parents for each child, see, e.g., Margaret F. Brinig and Steven L. Lock, “Legal Status and Effects on Children,” available at SSRN http://ssrn.com/abstract=973826 (2007).

²Rosero v. Blake, 581 S.E.2d 41 (N.C. 2003).

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marital child presumptively vests in the mother.³Relying on U.S. Supreme Court rulings, the court said “absent a showing that the biological or adoptive parents are unfit, that they have otherwise neglected their children’s welfare, or that some other compelling reason exists, the paramount rights of both parents to the companionship, custody, care and control of their minor children must prevail.”⁴The North Carolina court concluded, “the father’s right to custody of his illegitimate child is legally equal to that of the child’s mother.”⁵In an earlier U.S. Supreme Court case, Stanley v. Illinois,⁶the Court in 1972 found equal protection violations in a statute declaring that children whose genetic mother had died had no “surviving parent” because their genetic father had never married their mother, though the father had lived off and on with her for eighteen years and had undertaken significant childrearing responsibilities.⁷

Today, there are many express statutes on the desired equality between female and male parents. For example, an Illinois Probate Act provision says:

If both parents of a minor are living and are competent to transact their own business and are fit persons, they are entitled to the custody of the person of the minor and the direction of his education. If one parent is dead and the surviving parent is competent to transact his own business and is a fit person, he is similarly entitled. The parents have equal powers, rights and duties concerning the minor.⁸

A Delaware Domestic Relations provision says:

The father and mother are the joint natural guardians of their minor child and are equally charged with the child’s support, care, nurture, welfare and education. Each has equal powers and duties with respect to such child, and neither has any right, or presumption of right or fitness, superior to the right of the other . . . . Where the parents

³Id. at 50.

⁴ Id. at 47.

⁵Id. at 50.

⁶Stanley v. Illinois, 405 U.S. 645 (1972).

⁷Id. at 657–58.

⁸755 ILL. COMP. STAT. 5/11-7 (1993).

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live apart, the Court may award the custody of their minor child to either of them and neither shall benefit from any presumption of being better suited for such award.⁹

These equality principles have resulted in American governmental policies favoring two parents under law at birth for each child born as a result of consensual sex, whether or not the genetic parents were ever married to one another. Birth record laws automatically recognize women giving birth as mothers under law.¹⁰As to legal fathers, American laws usually presume the husbands of married mothers are the genetic fathers.¹¹

Where the mothers are unmarried, a California Family Code provision illustrates the two parent goals. It says:

There is a compelling state interest in establishing paternity for all children. Establishing paternity is the first step toward a child support award, which, in turn, provides children with equal rights and access to benefits, including, but not limited to, social security, health insurance, survivors’ benefits, military benefits, and inheritance rights . . . . Additionally, knowing one’s father is important to a child’s development.¹²

With unwed mothers, the genetic fathers are usually subject to paternity designations.¹³

Notwithstanding the cases and statutes on equality, there is not, and should not be, absolute or near absolute equality between unwed genetic parents, nor between unmarried and married heterosexual couples, who have children the old-fashioned way. There are some necessary inequalities in American maternity and paternity laws. Differing treatment of unwed women and men in governmental procedures for designating

⁹DEL. CODE ANN. tit. 13, § 701(a) (1999).

¹⁰See, e.g., Amy G. v. M.W., 47 Cal. Rptr. 3d 297, 303–04 (Cal. Ct. App. 2006) (reviewing state parentage act) and CAL. FAM. CODE § 7610(a) (West 1992) (parent and child relationship established by proof of woman giving birth).

¹¹Relevant marriages can occur during pregnancy, or even after pregnancy at times, as well as prior to conception. Compare, e.g., 750 ILL. COMP. STAT. 45/5(a)(1) (1993) (born or conceived during marriage) with (a)(2) (postbirth marriage and man’s name on birth certificate).

¹²CAL. FAM. CODE § 7570(a) (1992).

¹³W. Craig Williams, Note, The Paradox of Paternity Establishment: As Rights Go Up, Rates Go Down, 8 U. FLA. J.L. & PUB. POL’Y 261, 266–68 (1997).

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parent-child connections based on genetic ties was condoned by the U.S. Supreme Court in 2001 in Nguyen v. INS.¹⁴There the Court said:

The first governmental interest to be served is the importance of assuring that a biological parent-child relationship exists. In the case of the mother, the relation is verifiable from the birth itself. The mother’s status is documented in most instances by the birth certificate or hospital records and the witnesses who attest to her having given birth.

In the case of the father, the uncontestable fact is that he need not be present at the birth. If he is present, furthermore, that circumstance is not incontrovertible proof of fatherhood . . . . Fathers and mothers are not similarly situated with regard to the proof of biological parenthood. The imposition of a different set of rules for making that legal determination with respect to fathers and mothers is neither surprising nor troublesome from a constitutional perspective.¹⁵

Differing treatment of unmarried and married heterosexual couples in proof of paternity settings was condoned by the U.S. Supreme Court in 1989 in Michael H. v. Gerald D.¹⁶There the Court allowed American states to create irrebuttable presumptions of paternity for husband within marital couples,¹⁷though there need not be similar presumptions for unmarried men within heterosexual couples.¹⁸Today there are many

¹⁴Nguyen v. INS, 533 U.S. 53 (2001).

¹⁵Id. at 62–63. See also Dubay v. Wells, 442 F. Supp. 2d 404, 406 (E.D. Mich. 2006) (no constitutional right for a man to terminate child support duties, though a woman has the right to abort).

¹⁶Michael H. v. Gerald D., 491 U.S. 110 (1989).

¹⁷Id. at 129–30 (“It is a question of legislative policy and not constitutional law whether California will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted.”). The relevant state in Michael H. was California, whose marital paternity presumption has since operated differently, with both conclusive and rebuttable dimensions. See, e.g., Dawn D. v. Superior Court, 952 P.2d 1139 (Cal. 1998) (conclusive where wife is cohabitating with her husband who is neither impotent nor sterile; rebuttable where married couple is not cohabitating).

¹⁸Dawn D., 952 P.2d at 1141.

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marital paternity presumptions and far fewer paternity presumptions for the unmarried.¹⁹

B. Unwarranted Inequalities in Safe Haven Laws

Unfortunately, these equality principles have generally been ignored in American state safe haven laws. Though often written in gender-neutral terms, many safe haven laws now effectively permit the abandonment of many newborns solely by genetic mothers regardless of paternity interests.²⁰These maternal acts usually foreclose any later legal parenthood for genetic fathers who are fit and willing to parent, including men who...