In the United States, every third child is born to an unwed mother. (1) These children are relinquished for adoption at a greater rate than those born to married mothers. (2) Adoption of a child born to an unwed mother creates a quandary of how best to protect the parental rights of the father and the privacy rights of the mother while simultaneously securing the best interests of the child. Baby Jessica, Baby Richard, and Baby Emily were highly publicized court cases in the early 1990s where unmarried birth fathers contested the adoptions of newborns. The public felt strongly about state courts disrupting the adoptions of these children vis-a-vis the late assertion of their birth father's rights, but the United States Supreme Court declined to review the States' decisions in these cases. (3) In the wake of Baby Jessica, state legislatures, in an attempt to avert such disrupted adoptions, enacted putative father registries designed to mandate notice of adoptions to unwed fathers who file notice of intent to claim paternity with registries in the prescribed time. A State's putative father registry protects the rights of an unwed father and an adoptee within its State.
Recently, in the context of adoptions where interstate travel was used to thwart their efforts to assert paternity, two unwed fathers successfully sued in tort for intentional interference with their parental rights. (4) These costly torts have re-focused attention on the rights of unwed fathers in adoptions. Individual state putative father registries cannot protect the parties in such adoptions, because registration in the State of conception will not ensure notice of an adoption proceeding in another State.
This Article analyzes putative father registries and proposes federal legislation to create a national database that will enhance and connect the state and local registries. Issues and events leading to the development of registries are reviewed in Part I. Putative father registry mechanics and applicable case law are analyzed in Parts II and III. The case law examined includes unwed fathers' rights, in-state paternity registry contests, requests for impossibility exceptions exempting registry requirements, and tortious interference with parental rights. Part IV argues for a national putative father registry database and investigates avenues of federal participation and recommendations for specific legislation.
In 1972, the Supreme Court first upheld and defined the constitutional rights of men who fathered children out of wedlock. (5) In Stanley v. Illinois, the Court held that equal protection requires state law to treat the unmarried mothers and fathers of children similarly. (6) This heralded a societal shift away from deferring to the wishes of unmarried mothers.
Upholding the constitutional rights of unmarried fathers to their children does not assure that these men will assume parental responsibilities, however. Protecting paternal rights of unmarried fathers without requiring corresponding responsibilities fails to ensure permanent and stable parents for children because unmarried fathers who have no legally defined role in their children's lives have no legal requirement for custody or support. Consonant with enhancing parental responsibility of undefined and non-custodial parents, between 1984 and 1996 Congress passed legislation and established child support guidelines designed to increase the adequacy of child support sums (7) as well as enforcement of its payment. (8) The impact of child support legislation on adoption is not documented, but, unmarried fathers certainly factor into their adoption decision the nearly inescapable requirement to pay child support for at least eighteen years if the child is not adopted.
Adoption has evolved over time in response to these legal developments and to social trends as well. In the 1970s, the number of American adoptions decreased in association with the legalization of abortion and society's increasing acceptance of single motherhood. (9) While reports on adoption rates conflict, that downward trend apparently continued for the adoption of infants at least through 1995. (10) In contrast, the total number of all children adopted in 1992 was a substantial 127,441, which represented a seven percent increase over the prior year. (11)
The number of adoptions is also affected by foster care policies, which in turn are affected by laws regarding the termination of parental rights. The number of adoptions of children from foster care decreased up to 1990, before federal and state initiatives caused the number to increase dramatically. (12) Child protective services emphasize a public policy of family preservation that prioritizes returning foster children to the home of their biological parents. (13) But, "[a]bout one third of the children that return to their homes from foster care re-enter the foster care system within six months." (14) This cycle of entering foster care, returning home, and re-entering foster care blocks children's availability for adoption and consumes time during which the chances for children to find permanent adoptive families diminish. (15) One of the factors responsible for foster care drift is the difficulty in terminating parental rights, including those of the unwed father. (16) Thus, the birth father problems that burden the stable placement of children for adoption exist for foster children as well as newborns.
Adoption is an important issue to the United States not merely because it affects many families. Every child adopted is less likely to grow up in poverty, more likely to obtain an education, and more likely to have a participating father than a child raised by a single mother. (17) Thus, the personal effects of adoption upon the individual child and its economic effects upon the nation are significantly positive.
Suitably, the federal government has implemented a pro adoption policy. In 1994, Congress authorized federal tax credits to adoptive parents for qualified adoption expenses and provided financial incentives to States for each foster child or special needs child adopted over a base number. (18) In 2001, Congress and President Bush re-authorized and increased the adoption tax credit. (19) While he was in office, President Clinton directed an Executive Memorandum to the Department of Health and Human Services effectively recommending strategies to double the number of American adoptions. (20) Facilitating and supporting adoptions has bipartisan support.
Despite pro-adoption federal policy and case law protecting the parental rights of birth parents, contested adoptions continue to arise. Wrenching publicity caught the nation's attention when the thwarted father of Baby Jessica, who was born to an unwed mother, disrupted the adoption of a then two-year-old Jessica. (21) Babies Richard and Emily followed Jessica, and in their wake States began following New York's lead by enacting putative father registries for unwed fathers in an effort to decrease contested adoptions. (22) The Uniform Adoption Act requires notice either personally or through publication, (23) while the Uniform Parentage Act and over thirty States currently have putative father registries. (24)
The phenomenon of contested adoption leads to litigation and demonstrates the inadequacy of existing legal regimes to secure adoption placements. A 1998 tort award of large damages for the intentional interference with parental rights further expanded the rights of unmarried fathers in newborn adoptions. (25) This case involved an unwed West Virginia father whose efforts to establish paternity and to prevent the child's adoption were thwarted by the mother who moved between States during her pregnancy. She delivered the baby in California and ultimately relinquished her child to a Canadian couple. This case involved a novel application of tort law to a thwarted father adoption and opens the gates to more such litigation. (26) It also demonstrates the inadequacy of individual state laws to protect the rights of unmarried biological fathers, adoptive parents, and children in a globalized world in which interstate and even international travel is commonplace.
Children, their biological parents, and their adoptive parents experience extreme anguish in a disrupted adoption. Intentional interference with parental rights torts can exact huge economic and psychological tolls on all the parties and their attorneys. Adopted children, birth mothers, unmarried birth fathers, adoptive parents, and their respective attorneys require a solution upon which they can comfortably rely. Individual state putative father registries can alleviate problems where the adoption is filed in the State of conception as long as the statutory scheme contains a time deadline within which the father must file. But individual registries cannot cure contests arising where the adoption is filed in a State unknown to the father. Imagine this hypothetical: college students in Missouri conceive a child, and the birth mother travels to deliver and relinquish the baby not in her home State of Illinois, but in her grandmother's home town in Nebraska. In this scenario, the birth father has not been notified of his duty to file with the Nebraska registry to protect his parental rights irrespective of whether the mother concealed or disclosed the pregnancy.
Congress should enact a national putative father registry database to address the interstate effect of adoptions. This system would have the dual purposes of facilitating notice of adoptive proceedings to unmarried birth fathers in interstate adoptive situations and of promoting secure adoptive placements. The state putative father registries should file with the national putative father registry database for every man who files with the State. Each State should maintain its own statutory adoption scheme including regulation of the parental rights and...