UNMARRIED FATHERS AND ADOPTION: “PERFECTING”
OR “ABANDONING” AN OPPORTUNITY INTEREST
In recent years, the problem of the unmarried or putative father
increasingly has taken center stage in constitutional and statutory debates
about adoption. Three converging trends have contributed to this
development. One of these has been demographic and cultural: An
increasing number of American women are bearing children without
entering into marriage first. In 2004, the rate of births to unmarried
women was 46 per 1000, or 36% of all births.1 This represented a sharp
rise since 1980 when the comparable figure was 18%.2 Over 1.47 million
children were born to unmarried women in 2004.3 Consequently, there are
many more unmarried fathers as well.4
Copyright © 2007, Laura Oren.
∗ Laura Oren, J.D. University of Houston Law Center, 1980; Ph.D. Yale University
1974. She is a Law Foundation Professor at the University of Houston Law Center and Co-
Director of the Center for Children, Law & Policy at UHLC. The University of Houston
Law Foundation has provided financial assistance for this project. Thank you to University
of Houston Law Center librarian Jenel Cotton for her invaluable assistance on this project
and to Professor Barbara Atwood for her comments.
1 Childstats.gov, Forum on Child and Family Statistics, America’s Children in Brief:
Key National Indicators of Well-Being, 2006: Population and Family Characteristics,
http://childstats.gov/americaschildren06/pop.asp (last visited May 29, 2008);
Childstats.gov, Forum on Child and Family Statistics, POP7.A: Births to unmarried
women: Birth rates for unmarried women by age of mother, 1980–2004,
http://childstats.gov/americaschildren06/tables/pop7a.asp?popup=true (last visited May 29,
2 FEDERAL INTERAGENCY FORUM ON CHILD AND FAMILY STATISTICS, AMERICA’S
CHILDREN: KEY NATIONAL INDICATORS OF WELL-BEING 2005 11 (2005), available at
3 Joyce A. Martin, et al., Births: Final Data for 2004, NAT’L VITAL STATISTICS
REPORTS, Sept. 29, 2006 at 2., available at http://www.cdc.gov/nchs/data/nvsr/nvsr55/
4 The rise in non-marital births together with other factors has changed the shape of
American households. The 2005 American Community Survey of the Census Bureau
reported that for the first time the “traditional” family of married parents living together
with their children now represents a bare minority of American households. The United
States Census Bureau report on household and families from the 2005 American
Community Survey Data Set indicated that only 55.2 million of the 111.1 million
households consisted of a married couple with children family household. United States—
254 CAPITAL UNIVERSITY LAW REVIEW [36:253
The other two trends have been in public policy and judicial doctrine.
Since the 1974 Amendment to the Social Security Act, government has
become increasingly active in finding putative fathers to pay child support
and in promoting paternity establishment toward that end.5 In addition, in
a series of important decisions the United States Supreme Court
transformed the jurisprudence of what had been called “illegitimacy.”6
Non-marital children gained constitutional rights,7 and so did their
General Demographic Characteristics: 2005, http://factfinder.census.gov/home/saff/
main.html (follow “Data Sets”; then follow “American Community Survey” hyperlink;
then select “2005 American Community Survey” hyperlink; then follow “Data Profiles”
hyperlink; then follow “Show Result” hyperlink) (last visited May 29, 2008).
5 See infra notes 18–29 and accompanying text. The stated purpose of Title IV-D of
the 1974 Amendment, entitled “Child Support and Establishment of Paternity,” is to
enforce “the support obligations owed by absent parents to their children, locating absent
parents, establishing paternity, and obtaining child support . . . .” Social Services
Amendments of 1974, Pub. L. No. 93-647, § 451, 88 Stat. 2337, 2351 (1975) (emphasis
added). See also Mary Fisher Bernet, The Child Support Provisions: Comments on the
New Federal Law, 9 FAM. L.Q. 491, 491–92 (1975); Laura Oren, Thwarted Fathers or Pop-
Ups?: How to Determine When Putative Fathers Can Block the Adoption of Their Newborn
Children, 40 FAM. L.Q. 153, 156 (2006) [hereinafter Oren, Thwarted Fathers] (“Since
1974, under the federal government’s ‘carrot-and-stick’ approach to ‘cooperative
federalism,’ Congress has required any state receiving federal assistance for AFDC,
Medicaid, or food stamps to push the paternity and support agenda ever more
aggressively.”); Laura Oren, The Paradox of Unmarried Fathers and the Constitution:
Biology ‘Plus’ Defines Relationships; Biology Alone Safeguards The Public Fisc, 11 WM.
& MARY J. WOMEN & L. 47, 72 (2004) [hereinafter Oren, Paradox] (“After the Social
Security Amendments of 1974, pursuant to ‘cooperative federalism,’ states had to require
that mothers receiving AFDC cooperate in establishing the paternity of putative fathers.”).
6 See infra notes 7 & 8; see also Ralph C. Brashier, Children and Inheritance in the
Nontraditional Family, 1996 UTAH L. REV. 93, 112 n.64 (1996) (“noting evolution of
statutory language from ‘child born out of wedlock’ to ‘non-marital child,’ representing
another link in the chain of linguistic tolerance that has caused the terminology to evolve
from ‘bastard’ to ‘illegitimate’ to ‘out of wedlock’ to the eminently nonjudgmental ‘non-
7 See, e.g., Levy v. Louisiana, 391 U.S. 68 (1968) (finding a violation of equal
protection in the creation of a cause of action for wrongful death of a parent on behalf of
marital children but not on behalf of nonmarital children); Weber v. Aetna, 406 U.S. 164
(1972) (violating equal protection to exclude nonmarital children from sharing equally with
marital children in recovery of workers’ compensation benefits upon death of parent);
Gomez v. Perez, 409 U.S. 535 (1973) (denying right of paternal support to nonmarital
children while granting it to marital children violates the Equal Protection Clause). This
Article frames the issues primarily in terms of the legal claims of and against fathers.
2007] UNMARRIED FATHERS AND ADOPTION 255
biological fathers.8 One aspect of this transformation relied on mere
biology alone. Children, or the State allegedly acting on their behalf, could
establish paternity upon a simple showing of the biological tie, especially
when it came to child support claims.9 Paradoxically, however, in a
different line of cases, culminating in Lehr v. Robertson,10 the Court
recognized the relationship rights of unmarried fathers, but only if they met
a “biology plus” standard.11 In the Court’s view, a putative father who
wished to protect his relationship with his child and prevent her adoption
by another man needed to do something extra to grasp the opportunity
presented by the biological tie.12 If he satisfied this criterion by stepping
forward, he secured constitutional protection.13 If not, the State enjoyed
wide latitude to dispense with his inchoate opportunity interest.14
The “biology plus” cases have not answered all the questions that they
raised about how an unmarried father may perfect, or conversely abandon,
his constitutionally protected opportunity interest. With very little direct
Children’s interests, however, clearly are at the heart of the concerns involving the adoption
triad (children, birth parents, adoptive parents).
8 E.g., Stanley v. Illinois, 405 U.S. 645, 649 (1972) (ruling that unwed father was
entitled to parental fitness hearing before being denied custody of his children); Quillon v.
Walcott, 434 U.S. 246, 247 (1978) (addressing the issue of stepfather adoption); Caban v.
Mohammed, 441 U.S. 380, 380–81 (1979) (holding unconstitutional a state law distinction
requiring unwed mother’s, but not unwed father’s, consent before allowing adoption of
non-marital child by stepparent); Little v. Streater, 452 U.S. 1, 16–17 (1981) (holding that
state must provide blood tests to indigent putative father where denial would operate to
foreclose his opportunity to be heard); Lehr v. Robertson, 463 U.S. 248, 251–52 (1983)
(acknowledging that a biological father who has come forward to participate in raising his
child would receive Due Process protection).
9 Oren, Paradox, supra note 5, at 48 (“[T]he Court held that a biological connection
alone established the requisite link in benefits cases . . . .”).
10 463 U.S. 248, 250–51 (1983) (addressing the issue of stepfather adoption).
11 Id. at 261 (“When an unwed father demonstrates a full commitment to . . .
parenthood by ‘com[ing] forward to participate in the rearing of his child,’ his interest . . .
acquires substantial [constitutional] protection . . . . But the mere existence of a biological
link does not merit equivalent constitutional protection.”) (quoting Caban, 441 U.S. at
12 Id. at 262 (“The . . . biological connection . . . offers the natural father an opportunity
that no other male possesses to develop a relationship with his offspring. If he grasps that
opportunity and accepts some measure of responsibility for the child’s future, he may enjoy
the blessings of the parent-child relationship . . . .”).