Looking Beyond the United States: How Other Countries Handle Issues Related to Unwed Fathers in the Adoption Process

• Author: Cynthia R. Mabry
• Position: Professor of Law, Howard University School of Law; LL.M., New York University School of Law, 1996
• Pages: 363-412

LOOKING BEYOND THE UNITED STATES:

HOW OTHER COUNTRIES HANDLE ISSUES RELATED TO

UNWED FATHERS IN THE ADOPTION PROCESS

CYNTHIA R. MABRY∗

INTRODUCTION

In the United States, nearly thirty-seven percent, or four in ten births,

are unwed children.1 A child’s “biological father” is “the male who

impregnated the biological mother resulting in the birth of the child.”2

Accordingly, a biological father is the man who has a genetic link to the

child. A man who fathers a child when he is not married to the child’s

mother is considered an unwed father even if he is married to someone

other than the child’s mother when the child is conceived.3

Regardless of their marital status, both American biological parents

have a right to the custody, care and nurture of their children. The United

States Supreme Court ruled that this parental right is a fundamental liberty

interest.4 The underlying policy that supports that principle is a

presumption that “the natural bonds of affection lead parents to act in the

best interests of their children.”5

An unwed father in America who grasps his unique opportunity to

establish a relationship with his child is entitled to notice that the child has

been placed for adoption and, unless an exception applies, his consent is

Copyright © 2007, Cynthia R. Mabry.

∗ Professor of Law, Howard University School of Law; LL.M., New York University

School of Law, 1996; J.D. Howard University School of Law, 1983. I am grateful to Dean

Kurt Schmoke for a research stipend that supported this Article, to Professors Twila Perry

and David Smolin for their comments at a symposium when I presented a draft of this

Article at Capital University Law School’s Third Annual Wells Conference on Adoption

Law in Columbus, Ohio on February 15, 2007.

1 National Center for Health Statistics, New Report Shows Teen Births Drop to Lowest

Level Ever, http://www.cdc.gov/nchs/pressroom/06facts/births05.htm (last visited May 28,

2008) (reporting that the number of unmarried births rose from 35.8% to 36.8% in 2005).

2 GA. CODE ANN. § 19-8-1(1) (2004). Accord Judgment In the Name of the Republic of

Latvia, Case No.2004-02-0106, ¶ 13.2 (Lat. Const. Ct. Oct. 11, 2004), available at

http://www.satv.tiesa.gov.lv/upload/2004-02-0106E.rtf (distinguishing between legal

paternity and biological paternity).

3 CHRIS BARTON AND GILLIAN DOUGLAS, LAW AND PARENTING 49 (1995).

4 Troxel v. Granville, 530 U.S. 57, 65 (2000).

5 Id. at 68 (quoting Parham v. J.R., 442 U.S. 584, 602 (1979) (citations omitted)).

364 CAPITAL UNIVERSITY LAW REVIEW [36:363

required before the child is adopted. Grasping that opportunity can be

achieved in a number of ways including registering an interest through a

state paternity registry.6 By comparison, lawmakers in some countries do

not consider a biological father’s rights before a child is placed for

adoption. Unmarried fathers in those countries do not have automatic

parental responsibility or parental authority.7 Other countries have

implemented laws and procedures that recognize unwed biological fathers’

rights.8

Because intercountry adoptions involve a complex system that requires

application of national and international laws, this Article conducts a

comparative analysis of United States laws regarding unwed biological

father’s rights, provisions from relevant international laws and

Conventions, and specific laws from other selected countries such as

China, Guatemala, Russia, Canada, the United Kingdom, and South Africa.

Part I synthesizes laws in the United States that affect biological fathers’

rights. Part II discusses the history of intercountry adoption in the United

States and the development of international laws governing the adoption

process. Part III provides a background concerning adoption practices that

affect birth fathers in other countries and compares and contrasts

Convention and national laws in other countries to United States laws.

Part IV concludes that in the best interests of children who are placed for

adoption around the world, the United States and other country officials

must implement or amend laws and policies to further protect unwed

fathers’ rights and to enforce laws that are designed to protect those rights.

In sum, in adoption proceedings, when a man’s parentage is established, it

is a fundamental right that deserves the same protection as a mother’s

rights.

6 See, e.g., ARK. CODE ANN. § 20-18-702(a) (2007). But see Laurence C. Nolan,

Preventing Fatherlessness Through Adoption while Protecting the Parental Rights of

Unwed Fathers: How Effective Are Paternity Registries?, 4 WHITTIER J. CHILD AND FAM.

ADVOC. 289, 309–22 (2005) (declaring the benefits of registries and recommending changes

for more efficacy in protecting fathers’ rights).

7See, e.g., Children Act 1989, pt.1, § 2(2) (a) and (b) (requiring fathers to obtain an

order of parental responsibility), [hereinafter Children Act], available at

http://www.opsi.gov.uk/acts/acts1989/ukpga_19890041_en_1.

8 See, e.g., Republic of South Africa, Children’s Bill, 2003, ch. 15, § 232(1), (B 70B-

2003) [hereinafter Children’s Bill], avai lable at http://www.centroreinasofia.es/admin/

leyes/1/childrensbill_04_August_2003.pdf.

2007] UNWED FATHERS IN THE ADOPTION PROCESS 365

I. TREATMENT OF BIOLOGICAL FATHERS FOR ADOPTION PURPOSES

IN THE UNITED STATES

According to United States laws, unless one or more circumstances

exist to warrant exercise of an exception, both parents have a fundamental

right to the “companionship, care, custody, and management”9 of their

biological children regardless of whether the parents are married to each

other and regardless of whether they live together. They also have the

right to make major decisions for their children regarding their medical

care, education, and religious upbringing and whether they may be

adopted. In four pivotal opinions,10 the United States Supreme Court

recognized biological fathers’ rights.11 As revealed in this Section, three of

those opinions involved a father’s rights when his child was considered for

adoption.

A. United States Supreme Court

In a trilogy of stepparent adoption cases, during a five-year period, the

United States Supreme Court carved out rules affecting a biological

father’s right to notice about an adoption proceeding and his right to object

to his child’s adoption. In 1978, in Quilloin v. Walcott, the Supreme Court

ruled that a Georgia statute which limited a birth father’s right to veto an

adoption and treated him differently from married fathers did not violate

the Due Process Clause or the Equal Protection Clause. The Court

reaffirmed its rulings from previous opinions that “the relationship

between parent and child is constitutionally protected. . . . It is cardinal

with us that the custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include preparation for

obligations the state can neither supply nor hinder.”12

The Court further held that “the Due Process Clause would be

offended “[i]f a State were to attempt to force the breakup of a natural

family, over the objections of the parents and their children, without some

showing of unfitness and for the sole reason that to do so was thought to be

in the children’s best interest.”13 In its rationale, however, the Court

9 Stanley v. Illinois, 405 U.S. 645, 651 (1972).

10 Id.; Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380

(1979); Lehr v. Robertson, 463 U.S. 248 (1982).

11 But see Michael H. v. Gerald D., 491 U.S. 110, 129 (1989).

12 Quilloin, 434 U.S. at 255 (quoting Prince v. Massachusetts, 321 U.S. 158, 166

(1944)).

13 Id.