Frames:
ESTABLISHING THE BIOLOGICAL RIGHTS DOCTRINE TO PROTECT UNWED FATHERS IN CONTESTED ADOPTIONS

TONI L. CRAIG[*]

Copyright © 1998 Florida State University Law Review

I. INTRODUCTION
II. DISTINGUISHING CONTESTED AT- BIRTH ADOPTION CASES
A. Parents' Rights
B. Separating Unwed Fathers From Other Parents
C. The State's Interests
III. THE BIOLOGICAL RIGHTS DOCTRINE AND ITS UNDERLYING POLICIES
A. The Federal Constitution Requires the Biological Rights Doctrine in Contested At-Birth Adoptions
B. The Biological Rights Doctrine Furthers State Social, Economic, and Administrative Interests
IV. THE CURRENT STATE OF THE BIOLOGICAL RIGHTS DOCTRINE
A. Historical Treatment of Biological Rights
B. Modern Treatment of Biological Rights and Case Law Supporting the Biological Rights Doctrine
V. COMPETING INTERESTS TO THE BIOLOGICAL RIGHTS DOCTRINE
A. Sociological Factors
B. The "Best Interests" Standard
VI. FLORIDA'S TREATMENT OF BIOLOGICAL RIGHTS OF UNWED FATHERS IN ADOPTION PROCEDURES
A. Adoption in Florida
B. Critique of Chapter 63 in the Context of Contested At-Birth Adoption Cases
VII. RECOMMENDING THE BIOLOGICAL RIGHTS DOCTRINE
VIII. CURRENT LEGISLATIVE PROPOSALS
A. Proposals That Are Too Far Off
1. The Uniform Adoption Act
2. Best Interests Bills
B. Proposals That Are Close, But Not Good Enough
1. 1996 Florida Bills
2. Statute Clarifying the Rights of Unwed Fathers in Newborn Adoptions
IX. CONCLUSION

I. INTRODUCTION

The United States Supreme Court has recog nized that an unwed biological father has a liberty interest in establishing a parental relationship with his child.[1] If the unwed father assumes responsibility for his child, his interest acquires substantial constitutional protection.[2] The Court has not, however, addressed the issues presented by recent contested at-birth third-party adoptions. Specifically, the Court has not determined whether a biological connection alone is sufficiently fundamental to trigger full constitutional protection when, through no fault of his own, an unwed biological father has had no opportunity to take responsibility for his newborn child. This issue arises in two categories of cases: those involving a father who finds out about the birth and adoption of his child after adoption proceedings are filed, and those involving a father who knows the mother is pregnant with his child and attempts to assume parental re sponsibilities during the prenatal period.

When the birth father has been unable to as sume his parenting responsibilities because the child has been placed at-birth with prospective adoptive parents, the biological connection and the father's asserted willingness to assume his parenting role should be sufficient to trigger full constitutional protection of his inchoate interest. Furthermore, Florida should institute the biological rights doctrine as a rule in contested at-birth adoptions and tailor a statutory adoption scheme that fully protects the inchoate rights of unwed fathers.[3]

In re Adoption of Baby E.A.W.,[4] a recent Florida case involving a father's thwarted effort to contest an adoption, illustrates the issues with contested at-birth adoptions. Gary Bjorkl und and Linda, the biological mother, were un married and had lived together for almost eight months when they conceived Baby Emily.[5] Before, and for six months during the pregnancy, Gary contributed more than half of the family's household expenses, including supporting Linda's two-year-old son from a previous relationship.[6] However, Gary and Linda's relationship deteriorated about two months before Emily's birth.[7] Linda unilaterally planned to place the unborn child for adoption and moved from the couple's home.[8] Although Gary's attempts to contact Linda during the last months of the pregnancy were rejected,[9] Linda did allow Gary to accompany her to a sonogram appointment.[10] He was proud of the baby and showed the sonogram picture to his friends before taping it to his refrigerator.[11] Shortly after that doc tor's appointment, however, Gary received no tice of the impending adoption.[12] He immediately phoned Linda's intermediary to tell her that he would contest the adoption.[13] Thereafter, he sought legal assistance and filed an acknowledgment of paternity with HRS.[14]

Sixteen days before Baby Emily was born, the trial court entered an ex parte order waiving Gary's consent of the adoption, stating that Gary had abandoned Linda and the unborn baby.[15] Baby Emily was born on August 28, 1992, and three days later, she was placed with the prospective adoptive parents.[16] After four evidentiary hearings, the appointment of an attorney ad litem, and a year's passing, the trial court held that Gary "did not exhibit sufficient financial or emotional support to the natural mother during the course of the pregnancy to sustain the position that he did not 'abandon' either the natural mother or the unborn child."[17] An en banc panel affirmed the trial court's evidentiary findings by a vote of six-to-five and certified the question to the Florida Supreme Court.[18] The panel asked whether consideration of the unwed father's emotional support of the mother during pregnancy was permissible when determining if the father had abandoned the child.[19] After three years of trial and appellate litigation, the Florida Supreme Court held that Gary's emotional and financial support of Linda while she was pregnant was relevant in determining abandonment.[20] This holding is now the law for contested adoptions in Florida. This Comment will explain how this rule of law violates the Due Process Clause of the Federal Constitution. Further, this Comment will argue that the rule harms the interests of preserving family ties as a matter of policy and that the Legislature should modify the standard adopted by the Flor ida Supreme Court.

To avoid the result reached in E.A.W., an unwed biological father should be presumed fit to take custody of his newborn child when he withholds consent to a third-party adoption of the child.[21] His efforts to assume parental responsibility of the child should negate any interests the prospective adoptive parents may have, and his fitness should be rebutted only by clear and convincing evidence that obtaining custody of the child would be seriously detrimental to the child's best interests. Florida should protect the unwed father's opportunity interest by initiating this presumptive right as soon as the father has made any effort to assume responsibility for the unborn or newborn child. His emotional support of the mother should be irrelevant. He is not seeking to establish a relationship with the mother. Thus, he should not be held responsible for nurturing a relationship with the mother when he is not compatible with her.

Florida should institute the biological rights doctrine to eliminate ambiguous statuto ry terms that allow the judiciary to waive the biological father's consent based on his prena tal conduct towards the mother. In addition, the state should establish adequate notice pro cedures that hold the birth mother responsible for naming, searching for, and contacting the natural father, and make her a party to the consent-termination proceedings. The interests of adoptive parents should not be considered unless the biological father's rights have been terminated.

Part II of this Comment distinguishes at-birth adoption cases from other unwed father cases. Part III explains the biological rights doctrine and its underlying policies. Part IV reviews the historical and modern treatment of the rights of biological parents. Part V re views several competing interests that have diminished the biological rights doctrine. Part VI reviews chapter 63, Florida Statutes, in the context of the three types of contested at-birth adoption cases to demonstrate that the current law is unconstitutional. Part VII makes recommendations for revising chapter 63, Florida Statutes. Part VIII compares past legislative efforts to these recommendations. This Comment concludes that legislating a preference for biological fathers over adoptive parents is one way to ensure due process protection for fathers and to provide appropriate constitutional guidelines in an area that the United States Supreme Court has not yet addressed.

II. DISTINGUISHING CONTESTED AT- BIRTH ADOPTION CASES

Contested at-birth adoption cases are best distinguished by contrasting the various inter ests involved in these cases with the interests involved in prior family law cases decided by the United States Supreme Court. This comparison makes it clear that an unwed father's liberty interest in a relationship with his newborn child deserves full constitutional protection because there is no prevailing interest involved in a contested at-birth adoption.

A. Parents' Rights

In Meyer v. Nebraska,[22] the Court began creating a framework for constitutionally protecting the interests of married biological[23] parents in established, intact family units.[24] The Court held that the federal Constitution gives parents the right to "marry, establish a home and bring up children,"[25] educate their children,[26] and make procreation decisions.[27] Through the 1970s, the Court expanded those protections to include family decisions made by unmarried individuals.[28] The Court recognized that the Fourteenth Amendment protects all biological parents' fundamental liberty interests in the care, custody, and management of their children[29] and an unmarried woman's privacy interest in procreation decisions.[30] Since the 1980s, the Court has fine-tuned its parents' rights jurisprudence by examining a handful of cases that involve state interference with parental authority,[31] and a few cases pitting unwed fathers against their children's biological mothers.[32] When analyzed, these cases indicate two premises: first, the Constitution protects, foremost, the biological connection between a mother and her child; and second, the Constitution only protects the father's biological connection with his child when he has assumed responsibility for the child and when there is no prevailing state interest to encumber his rights.[33]

A biological mother's rights are based on her unique traditional, biological, and social relationship with the child.[34] That relationship alone mandates significant constitutional protection.[35] A woman has the constitutional right to determine whether she will abort a fetus, carry a fetus to term, or place a newborn for adoption.[36] Once she decides to give birth,[37] her privacy rights mature into due process rights that receive full constitutional protection.[38] As a result, a married mother's right to determine what happens to the fetus, and the unmarried mother's right to determine what happens to the fetus and the newborn, are far superior to any protected legal interests fathers may have in the welfare of their children.[39]

For the unwed father, the "mere existence of a biological link" between himself and his child does not receive full constitutional pro tection. Instead, he must promptly and proacti vely assume responsibility for his child to gain any constitutional protection.[40] If the biological father is married to the natural mother or has been legally established as the father, he is deemed to have assumed adequate responsibility for the child and he receives full protection under the Due Process and Equal Protection Clauses.[41] However, an unwed and unestablished biological father has a lesser right—only an opportunity interest—regarding the establishment of a relationship with his child.[42] His parental opportunity springs from his unique biological connection to the child and offers him a chance to establish a parental relationship, but his rights are not absolute.[43] States are thus required by the Due Process and Equal Protection Clauses to protect the unwed father's liberty interest in assuming his parental role, but in doing so, states may specify exactly what conduct by the father is necessary to prove his willingness to assume his parental role.[44] Cases reviewed by the Court have set the general parameters of an unwed father's constitutional rights; however, none of those cases addressed what protection should be given to a father who, through no fault of his own, has been unable or has had no "opportunity" to assume responsibility for his newborn child.

B. Separating Unwed Fathers From Other Parents

In Stanley v. Illinois,[45] Illinois presumed all unwed fathers were unfit to take or retain custody of their children.[46] The Court held that such a presumption violated the Due Process Clause because it afforded him no opportunity to be heard.[47] It also violated the Equal Protection Clause because it treated unwed fathers differently than married and divorced parents and unmarried mothers.[4]8 In Caban v. Mohammed,[49] New York's adoption laws required the unwed mother's consent to the adoption of a child but not the unwed father's consent.[50] The Court held that such a distinction violated the Equal Protection Clause because it treated unwed fathers who had an es tablished relationship with their children dif ferently than similarly situated unwed moth ers.[51]

The Court has also addressed unwed fathers' attempts to establish paternity and gain visi tation with their children. In Quilloin v. Walcott,[52] the father claimed that the application of the state's "best interests standard" in an adoption proceeding commenced by the biological mother's husband violated his substantive due process rights.[53] The unwed father was named on the child's birth certificate, had often visited with the child, and had provided gifts and other support for the child.[54] After receiving notice of the adoption, he filed for legitimation and visitation rights.[55] The trial court found that Quilloin lacked standing to contest the adoption because he had not officially legitimated the child in the eleven years prior to the adoption.[56] The court denied his legitimation and visitation petitions and found that it was in the child's best interests to grant the adoption.[57] The Supreme Court held that in Quilloin's case the application of the best interests standard did not violate his equal protection rights, and hinged its decision on the fact that Quilloin had never sought an official custodial relationship with his child.[58]

In Lehr v. Robertson,[59] the father claimed that New York's adoption scheme violated his equal protection rights by establishing a gender-based distinction between unwed mothers and fathers.[60] He also asserted that his due process rights were violated because the Court did not provide him with prior notice and an oppor tunity to be heard.[61] A month after the biological mother's husband commenced adoption proceedings, Lehr filed for legitimation and visitation.[62] He did not, however, file his name with New York's putative fathers' registry.[63] Again hinging its decision on their assertion that Lehr had only minimally attempted to assume responsibility for his child,[64] the Su preme Court agreed with the New York courts that in Lehr's case neither his due process or equal protection rights were violated.[65]

In Michael H. v. Gerald D.,[66] the Court addressed whether California's conclusive presumption of legitimacy violated an unwed father's procedural or substantive due process rights in maintaining an established relationship with his child.[67] The Court reasoned that Michael's relationship with his daughter had not been "treated as a protected family unit under the historic practices of our soci ety" and that there was no other basis for spe cial protection of his interests because his paternity arose during the mother's marriage to another man.[68] Therefore, the Court held that Michael's interest in maintaining a relationship with Victoria had no constitutional dimensions, was limited by tradition, and relegated to the states as a matter of state law.[69]

These decisions leave the unwed father in a precarious position. He has a fundamental right to establish a relationship with his child.[70] However, that right is controlled not only by his own conduct,[71] but also by his legal ties to the biological mother[72] and any prevailing interests asserted by the state.[73] While the mother's interests in aborting or birthing a child is paramount to the interests of the biological father, over the past fifty years there have been few other prevailing interests that may displace the constitutional rights of unwed fathers who contest the at-birth adoption of their newborn. Nevertheless, states have tried in various ways to use these interests to over come a father's fundamental right to parent his child.

C. The State's Interests

The Meyer line of cases established that a state's interest in standardizing the family[74] is not significantly substantial to burden married parents' fundamental liberty and privacy interests in parental decision-making.[75] However, the Court has recognized that the state, as parens patriae, may restrict parental authority in an effort to "guard the general interest in a youth's well being."[76]

In the 1970s, states recognized the latitude of their interests in protecting the welfare of children and attempted to restrict family decision-making by unwed fathers in several ways. For example, in Stanley v. Illinois,[77] the state asserted its interest in protecting "the moral, emotional, mental, and physical welfare of the minor and the best interests of the communi ty."[78] Illinois claimed that presuming unwed fathers unfit to take custody of their children would further that interest.[79] However, the Stanley Court reasoned that the state's interest in protecting the welfare of children was also served by allowing a fit, unwed father to take custody of his children.[80] The Court held that the state's irrebuttable presumption of an unwed father's unfitness violated Stanley's due process rights.[81]

Likewise, in Caban, the state justified requiring a mother's consent to an adoption while not requiring the unwed father's consent by claiming that natural mothers possess a closer relationship with their children.[82] The State asserted that the requirement promoted the adoption of illegitimate children.[83] The Court held that the statute violated the Equal Pro tection Clause because neither reason was suf ficient to justify the "inflexible gender-based distinction" in the statute.[84]

States have asserted that they have a valid interest in assuring that children are raised in traditional two-parent family settings. Quilloin, Lehr, and Michael H. all involved a biological mother in a family unit with another man.[85] This rationale, though, would not seem to extend to prospective adoptive parents. In Smith v. Organization of Foster Families,[86] the Court stated that if there was a constitutional protection for the relationship between foster parents and their foster child,[87] it waned in the face of a federal constitutional liberty interest founded in a "blood relation ship" and "basic human right."[88] Like foster parent contracts, adoptions are creatures of state law. Any interest asserted by adoptive parents should be no greater than those gained by foster parents. Both interests should be considered secondary to an interest claimed by a biological parent.

The United States Supreme Court's unwed fa ther cases leave the following general rule: an unwed father has a constitutionally protected right to establish a relationship with his child if the biological mother decides to give birth to the child and is not married to another man, and if he does not delay assuming his parental role. This rule supports the premise that an unwed father who promptly asserts his interest in his newborn child when the biological mother is attempting to place his child for adoption at-birth, should be granted similar constitutional protection to establish a relationship with that child. The biological rights doctrine would best assure unwed fathers such constitutional protection.

III. THE BIOLOGICAL RIGHTS DOCTRINE AND ITS UNDERLYING POLICIES

The biological rights doctrine is one of sev eral standards used across the nation to decide custody cases.[89] It provides the most protection of the rights of biological parents because it presumes that a child's welfare is best served under the care and control of a fit biological parent.[90] Because of that underlying presumption, courts are required to award custody to the biological parent rather than to a third-party who may assert other interests in the child.[91] The court cannot consider whether a different custodial arrangement would benefit the child until the biological parent is proven unfit[92] and the court terminates his or her parental rights. Because of its certainty, the biological rights doctrine serves several constitutional and policy interests when applied in contested at-birth adoption cases.

A. The Federal Constitution Requires the Biological Rights Doctrine in Contested At-Birth Adoptions

When an unwed father contests the at-birth adoption of his child, the federal Constitution requires application of the biological rights doctrine. This conclusion follows from analysis of United States Supreme Court cases that have held the Fourteenth Amendment protects parents' significant interests in a relationship with their children,[93] third parties have no liberty interest in a relationship with a child not biologically connected to them,[94] and that the "best interests of the child" is not a proper standard to determine whether to terminate a biological parent's rights.[95] Cases involving contested at-birth adoptions are analogous to the case of Stanley v. Illinois.[9]6 In Stanley, the only countervailing state interest was the state's desire to protect the welfare of children.[9]7 As the Stanley Court opined, the state's interest would be served, rather than hampered, by awarding a fit, unwed biological father custody of his children.[98] Thus, the federal Constitution requires adherence to the biological rights doctrine in contested at-birth adoption cases because the unwed father has a fundamental right in his parental rela tionship, and the state has no substantial in terest that would justify burdening that right.

B. The Biological Rights Doctrine Furthers State Social, Economic, and Administrative Interests

In addition to being required by the Federal Constitution, the biological rights doctrine serves certain state social, economic, and ad ministrative interests. First, the biological rights doctrine prevents the state from social engineering, which is inherent in making a "best interests" judgment.[99] Generally, prospective adoptive parents are in a higher social class than the birth parents,[100] and courts may tend to make parental rights termination decisions based on what the adoptive parents can offer the child compared to what the biological parents can provide.[101] The Supreme Court has consistently recognized that a state's interest in attempting to standardize its families to conform to some "state-designed ideal"[102] is really no interest at all.[103]

Further, third-party adoptions may have ill effects on the children subjected to them. At some point in their lives, adoptees face the issue that their biological parents gave them up for adoption. The child may suffer psychological problems as a result of the adoption and separation from her biological parents.[104] These difficult issues are not always resolved[105] and may be more difficult when the adoptee knows that a court forced a biological parent to surrender his parental rights.[106] Adherence to the biological rights doctrine would allow adoptions only in those cases where both biological parents knowingly and voluntarily relinquished their rights, extracting the state from the social engineering process.

Second, the biological rights doctrine con firms that the rights of biological parents are firmly rooted in natural law, religion,[107] and social dictates.[108] Natural law places the child under the authority of his biological parents for protection, education, and social ization.[109] As one court has noted, "it would be repugnant to the natural law to deprive a parent of the right to rear his chil dren, except for the most grave reasons."[110] The biological connection deserves considerable autonomy because it is "one of the oldest institutions known to mankind and forms the basic unit of our society."[111] The Legislature should mandate that the child's welfare is best guarded by leaving the child where natural law and society found her—with her biological parents.

Third, presuming that a biological parent is fit brings adoption contests to finality by simplifying termination proceedings. The state has an interest in promoting the finality of adoptions and relieving the fiscal burden of litigation.[112] If the biological father knows about the pregnancy, promptly contests the adoption, and is presumed fit to take custody, the adoption contest could end at the initial waiver of consent hearing. The presumption would allow the trial judge to focus on whether the father took any steps to contest the adoption after he became aware of the proceedings. Such actions as filing a paternity acknowledgment,[113] requesting a paternity test,[114] phoning intermediaries to express refusal to consent,[115] and informing the birth mother or adoptive parents of his refusal to consent[116] would trigger the father's custodial rights. If there is no evidence to rebut the father's parental fitness, the proceeding would end, and the father would take custody of the child.[117]

Fourth, the biological rights doctrine en courages individual responsibility by allowing the birth father to assume the burden of caring for, nurturing, and supporting his child. Recently, the "responsible fatherhood" movement[118] has formed to rebut national criticism[119] of fathers as "dead-beats"[120] or "absent fathers."[121] Increasingly, unwed fa thers are demanding to be recognized as valued care givers rather than just financial support ers of their children. The biological rights doctrine, adhered to over a series of cases and strengthened by a United States Supreme Court decision, would send a message to unwed fathers that if they "step up"[122] and assume any responsibility for their children they will be recognized as fit custodians.

Finally, the biological rights doctrine plac es the father on a more level playing field with the mother.[123] Knowing that the father may obtain custody, the mother may be honest about the pregnancy, put the matter in the open rather than obscuring her plans, and try to work through the issue with the father without resorting to adoption.

IV. THE CURRENT STATE OF THE BIOLOGICAL RIGHTS DOCTRINE

A. Historical Treatment of Biological Rights

At English common law, statutory adoption was nonexistent.[124] Custody litigation was rare and children were considered nothing more than economic resources and chattel.[125] Children were to be "born, raised, schooled in religion, and, as soon as they were productive, put to useful labor."[126] Married fathers had broad authority over their children, their rights to them were preeminent,[127] and they were expected to financially support, maintain, train, and control them.[128] Society and the law expected married mothers to care for and comfort the children but afforded them no legal rights to the children.[129] On the other hand, illegitimate children were considered the children of no one, made charges of the community, and often apprenticed to masters.[130] Mothers and fathers of illegitimate children were prosecuted for fornication.[131]

Only some of these ideas were accepted in the new America.[132] American law recognized the needs of children and shifted away from the concept of children as property.[133] While the biological rights doctrine was recognized under the common law,[134] natural law,[135] and religion,[136] American courts relied upon the states' sovereign power and their own equity power to make custody decisions contrary to absolute parental authority.[137] The "child's best interests" became the American rule in custody disputes between biological parents of legitimate and illegitimate children.[138] By the early nineteenth century, state courts began to recognize the significance of the biological connection.[139] As to legitimate children, the biological preference was recog nized for both parents as against third par ties, and the tender years doctrine arose to settle custody disputes over young children between equally fit parents.[140] The courts also used fault to determine which of two divorcing parents should take custody of a child and, in their decision, considered any neglect, cruelty, or abandonment by either parent as reasons to award custody to one parent over the other.[141]

For illegitimate children, the mother's biological connection meant that she was the child's natural guardian and had an absolute right to custody over the putative father and third parties.[142] The mother, though, could be deprived of custody for egregious conduct,[143] or she could voluntarily relinquish custody of her child to someone who promised to care for him.[144] A biological father, on the other hand, had no custodial rights to his illegitimate child, nor a duty to support him, until it was proven that he was the child's father.[145] A mother or a state actor could bring bastardy proceedings to determine paternity and force the father to support and maintain the illegitimate child.[146] What began as criminal punishment for fornication became a civil proceeding "to impose the onus of supporting a child upon its natural parent to prevent the child from becoming a dependent upon society."[147] States recognized that such proceedings relieved them and the community from providing financial aid to the child and used the proceedings well into the 1900s.[148]

By the beginning of the 1900s, almost all states had enacted adoption statutes.[149] Those statutes supported the mother's autonomy over her illegitimate children because it was believed that she alone could determine which custodial arrangement best served the interests of the child.[150] The laws presumed that a fa ther was unfit to take custody of his child and did not require his consent to, or notice to him, of custody or adoption proceedings.[151] A father could guarantee his rights to his children only by marrying the birth mother or having paternity established in a bastardy proceeding.[152]

B. Modern Treatment of Biological Rights and Case Law Supporting the Biological Rights Doctrine

Only in the past twenty-five years have unwed biological fathers enjoyed any constitu tional protection of their parental rights.[153] The development of those rights, like other social transformations, has been slow and arduous. Although the diversity and inconsistency of recent case law makes it difficult to generalize about the present state of unwed fathers' rights,[154] there are several contested at-birth adoption decisions that have applied the biological rights doctrine.[155] In those cases, the biological father was presumed fit and awarded custody of his child.[156] The fathers had never been provided an opportunity to assume parental responsibility for their children because the mothers lied to them either about the paternity or the placement of the child.[157] These contesting fathers gained custody of their children,[158] and the courts seemed comfortable with the result because it was the mothers' bad deeds, not the fathers' inaction, that deprived the fathers of the opportunity to develop a paren tal relationship.[159]

V. COMPETING INTERESTS TO THE BIOLOGICAL RIGHTS DOCTRINE

Unfortunately, the biological rights doc trine has not been applied in a majority of recent cases. Instead, courts have used another standard by which to judge unwed father contested adoption cases—the best interests standard. As previously discussed, the best interests standard is not constitutional when applied to contested at-birth adoptions because it is a subjective standard that deprives the unwed father of his opportunity interest before giving him the chance to pursue it.[160] Nonetheless, the current trend seems to be toward the best interests standard,[161] and there are two sociological factors that are widening acceptance of that standard.

A. Sociological Factors

First, the social recognition of a moth er's autonomy in pregnancy decisions has been a detriment to the rights of biological fa thers.[162] Mothers have held a special, exalted status in our society for centuries, and their unique ability to give birth is revered in society, religion, and the law.[163] Holding women in such an exalted status perpetuates stereotypes that men are inadequate care givers and minimizes their parental role and decision-making power.[164] This reverence is evident in various statutory provisions for notice, consent, and termination of the father's rights, and in the way Florida courts have interpreted abandonment.[165]

The second major obstacle has been the courts' implicit and explicit reliance on their personal beliefs about who should raise children.[166] A judge makes decisions based on a natural thought process in which he relies on "beliefs (though they are not in evidence) which he reasonably thinks he shares with other intelligent persons as to the general nature of things—the meanings of ordinary words, typical modes of human behavior, causal relations between commonplace events, and the like."[167] In the contested adoption context, such a process colors judicial decisions regarding whether a biological father's rights should be ter minated by preferring the adoptive, or "psycho logical," parents because they are better off financially than the birth parents and, to the judicial mind, have more to offer the child.

B. The "Best Interests" Standard

The "best interests standard"[168] is a subjective evaluation of the advantages offered to the child by competing custodial arrangements. In modern case law, this standard has supported the adoptive parents in contested adoptions.[169] The standard is unconstitutional in contested at-birth adoptions.[170] Although an adoption cannot be finalized unless the biological parents consent or have their rights terminated, courts applying a best interests standard find ways to hold that the biological father has "forfeited" his right to contest the adoption of his child.[171] This judicial practice provides no substantive due process for the biological father and achieves inconsistent results.[172]

In cases following the "best interests standard," the birth fathers have assumed some responsibility for their children, but the courts do not consider their efforts suffi cient.[173] The courts focus on broad policy statements within the statutes which state that adoptions are for the child's best interests, but the courts more or less ignore specific waiver or termination requirements.[174] Courts claim that the unwed biological father has only an opportunity interest and that whatever efforts he has taken do not rise to the level of assuming parental responsibility.[175] The contesting fathers lose to the adoptive parents, and, more disturbingly, the courts ignore the fact that state action has manufactured the psychological parents, whom the court now believes can better serve the child's best interests.[176]

VI. FLORIDA'S TREATMENT OF BIOLOGICAL RIGHTS OF UNWED FATHERS IN ADOPTION PROCEDURES

Historically, Florida has treated biologi cal parents' rights in much the same manner as the rest of the nation.[177] However, the current state of the law in Florida, as set forth in In re Adoption of Baby E.A.W.,[178] goes further than any other law or judicial decision in the nation. Under the E.A.W. decision, an unwed biological father may have his parental rights severed if he does not form and carry on a psychological relationship with the pregnant mother, regardless of whether she wants such a relationship.[179]

A. Adoption in Florida

Florida has recognized adoption since at least 1891[180] and has had an adoption statute since 1924.[181] Chapter 63, Florida Statutes, was originally enacted in 1943.[182] In 1973, the Legislature revised the statute to state when an unwed father's consent to his child's adoption was required, and when that consent could be waived.[183] The current stat ute is substantially the same as the 1973 ver sion.[184] There are four provisions within chapter 63 that have recently caused problems for unwed biological fathers due to judicial interpretation: section 63.022, which states the legislative intent for the chapter; section 63.032(14), which defines abandonment; section 63.062, which tells whose consent is required; and section 63.072, which defines the waiver of consent.[185] After years of appropriately strictly construing chapter 63,[186] Florida courts have recently interpreted these provisions as justifying depriving unwed biological fathers of their opportunity interest.

The Florida Legislature intended for chap ter 63 to "protect and promote the well-being of persons being adopted and their birth and adoptive parents and to provide to all children who can benefit by it a permanent family life."[187] Chapter 63 also outlines "basic safeguards intended to be provided" by the statute.[188] These safeguards include that the child be legally free for adoption,[189] and that required persons consent to the adoption or that the court terminate the parent-child relationship.[190] The section concludes by stating that a court is to enter orders "it deems necessary and suitable to promote and protect the best interests of the person to be adopted."[191]

Effective in 1973, only the consent of the natural mother was required to legally free a child for adoption.[192] Biological fathers had no right to children born out of wedlock,[193] and their consent could be ignored when a mother simply denied knowing the identity or the location of the biological father.[194] Currently, a child is not available for adoption unless there is consent by the biological mother and by the biological father who has been legally declared the father, filed acknowledgment, or supported the child.[195]

A court can waive consent from any parent who has deserted or abandoned a child, previ ously had their parental rights terminated, or been declared incompetent.[196] Between 1960 and 1989, chapter 63 did not have a definition of "abandoned." Instead, courts relied on the definition in Florida's dependency statute. According to the statutory definition of abandonment,[197] Florida courts had interpreted "abandoned" to mean that a biological parent had totally relinquished responsibility for his or her child.[198] The courts also required that the child be born before he could be abandoned.[199] In 1989, still relying on the chapter 39 definition,[200] the Florida Supreme Court redefined "abandoned" in adoption pro ceedings to include consideration of a father's actions constituting less than total relinquishment and occurring during the prenatal period.[201]

In In re Adoption of Doe[202] the court acknowledged that a child must be born before it can be abandoned, but concluded that evidence of a natural father's prenatal conduct would be relevant to the issue of abandon ment.[203] The court based its conclusion on the belief that "[s]ocietal norms, and chapters 39 and 63 of Florida Statutes, contemplate that the natural parents will provide for the well-being of the child."[204] The court then declared, "[w]hen either or both fail to do so, the best interests of the child, and of society, require that society intercede, as in for example, abandonment or adoption proceed ings."[205] The court found "no constitutional or statutory provisions that would preclude the state from embracing such a policy," and held that a father's prenatal support is relevant to the determination of abandonment.[206]

In 1992, the Legislature revised chapter 63, Florida Statutes, to include the court's expanded definition of "abandoned."[207] The definition tracks the language in section 39.01(1) except for the last sentence stating that "the court may consider the conduct of a father towards the child's mother during her pregnan cy."[208] Until 1994, that last sentence was construed to mean that a natural father's lack of financial support could be "conduct" considered when determining whether the father had abandoned the child.[209] Then, in E.A.W., the Florida Supreme Court again expanded the meaning of "conduct" to allow a court to "consider the lack of emotional support and/or emotional abuse by the father of the mother during her pregnancy."[210]

B. Critique of Chapter 63 in the Context of Contested At-Birth Adoption Cases

Chapter 63's provisions should be safe guards for an unwed biological father who wants to assume responsibility for his child.[211] However, a review of the statute as interpreted in two types of contested at-birth adoption cases demonstrates that the current interpretation deprives unwed fathers of their constitutional rights. The first case occurs when a father has no knowledge that he is a father. This father lacks knowledge of his fatherhood because the birth mother has lied about the child's paternity or her pregnancy altogeth er.[212] As a result of his lack of knowledge, the father does not assume any prenatal or postnatal responsibility for his child.[213] However, as soon as he does know he has fathered the child, he asserts his legal rights.[214] In these cases, section 63.062 would unconstitutionally deny fathers standing to contest an adoption.[215] Biological fathers have a fundamental right to an opportunity to establish a relationship with their children. If the father is denied standing to contest the adoption because, through no fault of his own, he did not know he was a father, his due process rights are violated. The father cannot exercise his constitutional right to establish a relationship with his child if he has no opportunity to do so.[216]

The second type of case is where the fa ther knows about the pregnancy and takes some responsibility for the impending child during the pregnancy. This father, like Gary Bjorklun d, is deprived of his opportunity interest by the court's determination that, although he took some measures to assume parenthood, he had not taken the appropriate measures. In these cases the unwed father has been deprived of his substantive due process rights.

Section 63.072's definition of "abandoned" is the catch-all to allow courts to waive the father's consent to the adoption. The new, broader definition of "abandoned" affords biological fathers little or no substantive protection for their opportunity to establish a parental relationship.[217] It raises a signifi cant issue about waiving a natural father's consent to an adoption.[218] Specifically, upon what evidence should a court rely when determining whether a putative father has assumed enough responsibility for a child that is not yet born? Such evidentiary standards should be objective and legislatively mandated to ensure consistency among the judicial districts.[219]

VII. RECOMMENDING THE BIOLOGICAL RIGHTS DOCTRINE

Despite some consideration of biological fathers' rights, our courts have yet to decide the crucial issue presented in newborn adop tions: what constitutional protection should be afforded to an unwed biological father when, through no fault of his own, he has had little to no opportunity to take responsibility for his newborn child. Past Supreme Court cases involving unwed biological fathers are distinguishable from the more recent state cases across the nation. These distinguishing characteristics demonstrate that previous decisions are helpful but leave many unresolved issues for states to address. The central issues are whether a presumption should be given to the unwed father based on his biological connection with his child and his nonconsent to the adoption, and whether that presumption should preclude claims by third parties.

Because adoptions are statutorily created and controlled, the Legislature can provide adequate procedures that protect the interests of unwed fathers. The Legislature should ex pressly state that chapter 63 is to be strictly construed to protect foremost the rights of biological parents. This pronouncement would require courts to adhere to the statutory provisions regarding notice, consent requirements, and waiver provisions. However, to aid the courts, the Legislature should ensure that new language is specific enough to prevent judicial deviation when determining whether an unwed father has assumed his parental responsibilities.

Under chapter 63, determining who receives notice of the adoption depends on who is required to consent to the adoption.[220] Therefore, the classification of fathers whose consent is required should be as broad as the classification for mothers.[221] Simply put, consent should be required from all biological fathers,[222] and the prospective father in every case should be served with notice of the proceeding. The biological father must know that he is a father and that the birth mother expects to place the child for adoption. This requires notice to him by the mother during the pregnancy, and by an intermediary at the initi ation of adoption proceedings.[223]

Initially, the biological mother should be required to identify and serve notice on the biological father (or them if there is more than one prospective biological father) of her intent to place the child for adoption.[224] Once the father has been served with notice, he should have a certain amount of time to assert his intent not to consent to the adoption and to seek custody of the child. If he comes forward, the court should presume that he is fit to take custody of the child, order him to pay a portion of the prenatal and birth expenses, and grant him custody upon the child's birth.[225]

This provision would address the fathers in both types of at-birth adoption scenarios but would most protect those who have been deceived by the mother. Currently, the prospec tive adoptive parents are responsible for no ticing the birth father if his consent has not been obtained, and there are diligent search requirements in the statute.[226] However, if the birth mother lies about the identity of the father, those procedures are useless. Requiring that she be the formal party to notice the biological father is appropriate because she is the only party with the intimate knowledge that she is pregnant and of the probable date of conception.

Next, the Legislature should devise a specific set of circumstances under which a father's consent can be waived.[227] The waiver provisions should provide substantive protection for biological fathers. If the father refuses to consent, the biological rights doctrine would prevent the court from waiving his consent unless there is clear and convincing evidence that he is unfit. A claim that the father is unfit may arise at two points in the proceedings—before the child's birth and after the child's birth. If the father asserts his rights during the prenatal period, the biological mother would have the burden of rebutting the father's presumption of fitness. Requiring the mother to be a party to the fitness hearing would be an extension of her desire to do what is best for her child and of her duty to notify the father of his paternity. If the father asserts his interest after the child's birth, the prospective adoptive parents would have the burden of proving his unfitness. In either case, only clear and convincing evidence of the failure to attempt to provide financial support in accordance with his means should be evidence of unfitness.

Another waiver circumstance would address the unlocated father. If the mother claims that the biological father cannot be identified, located, or served, the court should conduct a strict inquiry as to the diligent search efforts of the mother.[228] If the court is reasonably satisfied that the father cannot be iden tified, located, or served, then it can waive the requirement for the father's consent. How ever, this scenario poses the problem of when the biological father's rights should be super seded by the best interests of the child. To answer this dilemma, the statute should contain a "window of opportunity," to begin after the biological father gains knowledge of the pregnancy or subsequent adoption, in which he can assume parental responsibility and contest the adoption.[229] If the father appears during ongoing proceedings, he should have standing to contest the adoption and assume custody of the child. If he does not gain knowledge of the adoption until after it is finalized, the current one-year limitation to attack adoption orders would prevail, unless he can defend his inaction by a lack of knowledge.

VIII. CURRENT LEGISLATIVE PROPOSALS

Over the past few years, several legisla tive proposals have attempted to address the various issues surrounding contested adoptions. In Florida alone, at least ten bills have been introduced since 1994 to revise chapter 63.[230] The number of issues that arise in adoption proceedings and the diversity of opinion about how to address those issues may explain why these bills have failed. Nonetheless, legislators must continue working toward a consensus and eventually resolve these difficult issues. An evaluation of the various provisions to revise legislative intent, consent, and waiver of consent in recent bills[231] and other legislative proposals in the context of the two types of at-birth adoption cases, focuses the debate.

A. Proposals That Are Too Far Off

1. The Uniform Adoption Act

In 1994, the Revised Uniform Adoption Act (UAA) was proposed to the states.[232] In 1995, it was introduced in the Florida Legislature as House Bill 65, but did not proceed past that introduction.[233] The UAA does not address legislative intent;[234] any interpretation of the intent behind the statute would be discerned from extraneous material, such as the prefatory material and comments.[235] The UAA's section 109 subparts are intended to support the best interests of the child, and to grant to the trial court broad discretion when determining adoption matters.[236]

Determining who receives notice of the adoption depends on who must consent to the proceeding. The UAA categorizes certain fathers who have "functioned" as parents and requires that they receive notice.[237] If the mother claims not to know who is the biological father of her child, the UAA requires the court to inquire into attempts to identify the father.[238]

Once identified, the UAA requires the consent of several categories of biological fathers who have "functioned" as their chil dren's parents. An unwed and unestablished biological father must consent to the adoption when he has acknowledged[239] his paternity and provided financial support for, visited, and communicated with the child,[24]0 or re ceived the child into his home and held out the minor as his child.[241] Fathers falling into either of these categories are presumed fit and cannot have their parental rights involuntarily terminated except on proof of specified grounds by clear and convincing evidence.[242] The UAA contemplates termination of a biological fa ther's rights only when his conduct manifests "serious failures to perform parental responsi bilities" and the evidence is sufficient to overcome the presumption of fitness.[243]

The UAA encourages social engineering by utilizing the best interests of the child stan dard. Under the UAA, judges are encouraged to subjectively evaluate which custodial arrange ment is better suited to the child's welfare and may ignore the biological parent's rights if denying the adoption would be detrimental to the child's best interests.[244] Termination proceedings may not be fair because they do not provide substantive protection for the biological father who, through no fault of his own, was prevented from assuming his parental re sponsibilities.[245] Under the termination provisions,[246] the thwarted father can defend his inaction by proving, by a preponderance of the evidence, that he had a compelling reason for not providing financial support or visiting with the child.[247] For fathers like Gary Bjorklund, however, that defense is negated by judicial consideration of the father's behavior during the mother's pregnancy, particularly where the mother has rejected his offers of support.[248]

Further, the Act appears to be difficult to administer and may achieve inconsistent results. Although the UAA requires expeditious handling of all adoption proceedings, the num ber of possible evidentiary hearings available under the UAA could delay finality of an adop tion decision. Theoretically, a court could determine in one hearing whether the father could be identified, whether his consent was necessary, whether his rights should be termi nated, and whether the custodial arrangement would serve the child's best interests. But recent cases prove that one hearing to deter mine all those issues is impractical and highly unlikely. Therefore, the adoption process and challenges to it could be drawn out.[249]

2. Best Interests Bills

Over the past few years, several best interests bills have been introduced in the Florida Legislature.[250] The most recent best interests bills, Senate Bill 1762 and House Bill 1257 (1997 bills), were introduced in 1997 and were companion bills with the same text and revisions.[251] Under these 1997 bills, the state's chief concern was the best interests of the child;[252] that intent was clarified in a definition of the "best interest of the person to be adopted."[253] The definition listed the factors to be considered when determining what is in the best interests of the child, which were taken from Florida's dependency statute.[254]

The 1997 bills included various notice provisions. First, under the consent provision, the bills retained the current diligent search requirement.[255] However, the petitioners' diligent search time was reduced to thirty days.[256] The 1997 bills also proposed a new notice section to cover fathers who cannot be identified or located through diligent search efforts.[257] Finally, any "prospective male parent is deemed to have notice at the time of sexual intercourse and a lack of knowledge shall not be a defense to contesting the adoption of a child conceived."[258]

The 1997 bills required consent from both the father who is married to the mother and the unwed biological father, if they have both filed a paternity action and responded to the notice of the adoption.[259] The bills also contained provisions that allow the court to waive consent from fathers who have abandoned the child,[260] have not filed a paternity action or provided the mother with financial and emotional support, or are found unfit to take custody of the child.[261] Additionally, the 1997 bills created a new (and questionable) "implied consent" provision.[262] Consent could be implied if a birth father failed to provide support, failed to respond to the notice of adoption, or failed to file a paternity suit.[263]

The premises of the best interests bills are unconstitutional. Although the 1997 bills provided adequate notice and consent proce dures, there was no substantive protection for fathers in either of the two types of cases. Under the waiver of consent provision, the court can waive consent from a parent if the court finds that parent unfit, but the bills offered no explanation of "unfit." In time, the waiver of consent provision could have become even more encompassing than the current catch-all, "abandoned." The 1997 bills offered no definition or elements that would have guided the courts when deciding whether a parent is unfit, leaving the judiciary in the same subjective position they are in now. Aside from determining whether a biological father has provided the mother with enough financial and emotional support, the court could simply find the father unfit. This procedure is inadequate to protect the unwed biological father's opportunity to establish a relationship with his child. An unguided fitness determination is not a necessary means to accomplish the state's interest in protecting the welfare of children or parental rights to parent one's own children.

B. Proposals That Are Close, But Not Good Enough

1. 1996 Florida Bills

Senate Bill 3026 and House Bill 227, both introduced in 1996, proposed a completely dif ferent system based on two very questionable principles. First, the 1996 bills revised leg islative intent to state that "termination of parental rights other than by consent or waiver shall be governed by chapter 39."[264] Then, they created a new section to outline diligent search requirements[265] and required that no tice of the adoption be served on the mother, any one whose consent is required but has not consented, and any man who has filed an action to establish paternity in the particular pater nity action at issue.[266] The 1996 bills also deleted the definition of "abandoned" and greatly revised the consent requirements.[267] Under these proposals, consent was required only from the fathers who filed an acknowledgment of paternity.[268] The court could waive consent from a father who was not married to the mother, or who received actual notice prior to birth that he is or may be the father of the child and "thereafter, fails to pay any of the living, medical, parental, or birth expenses of the mother or fails to take any action to assert his parental rights prior to the birth or within 60 days after the birth of the child."[269] Finally, the 1996 bills attempted to clarify termination procedures by proposing separate proceedings for termination of parental rights.[270]

Though they did clarify notice and termi nation proceedings, the 1996 bills failed to adequately protect the rights of several types of unwed fathers. Specifically, the bills based an unwed father's parental rights on whether he legally assumed his parental responsibilities, and then based termination of those parental rights on whether his relationship with his child is detrimental to the child. The proposed use of chapter 39 termination proceedings was misplaced.[271] Use of chapter 39 would begin the termination inquiry from the perspective that there has been a parental relationship and that the relationship has been detrimental to the child.[272] This perspective is wrong because in the unwed father cases the child is placed at-birth and the father has been unable to develop any relationship with his child, let alone a detrimental relationship. In unwed father cases, the focus of the inquiry should be on whether the unwed father has given some indicia of his intent to assume his parental responsibilities. The use of chapter 39 is not an appropriate means for determining the unwed father's intentions toward his newborn child.

Additionally, the 1996 bills were underin clusive. Only fathers who had filed acknowledg ments of paternity were required to consent to the adoption. This means that fathers who were unaware of the filing system but had supported the mother or were willing to assume custody of the child would not have had standing to contest the adoptions. However, even when a father does file an acknowledgment, there is no guarantee that his rights will not be terminated.[273] Usually, an unwed father only knows about the acknowledgment system because he has consulted an attorney. Then, when he appears in court, the current animosity toward fathers who "rush to the Legal Aid Society . . . in an effort to get a free lawyer to start fighting for some supposed legal right"[274] works against them. A father who takes actual responsibility for his child should not be precluded from contesting an adoption simply because he did not file an acknowledgment. The exclusion of some unwed fathers because they did not file an acknowledgment, although they may have fully assumed other responsibilities, is not a necessary means to accomplish the state's goal of protecting the welfare of children.

2. Statute Clarifying the Rights of Unwed Fathers in Newborn Adoptions

Recently, another suggestion for legisla tive reform has also supported a "filed-fathers only" system.[275] The Statute Clarifying the Rights of Unwed Fathers in Newborn Adoptions (SCRUFNA) states that it intends to balance the interests involved in the adoption process while providing "clear, objective guidelines" for adjudication of these cases and restoring efficiency and permanence to the adoption system.[276] To preserve his parental interest, the unwed father must register with a putative father registry.[277] SCRUFNA suggests making the filing of paternity notice more simplified by establishing a nationwide telephone or mail registration system.[278] Filing with the registry "vests" the father with a rebuttable presumption of parental rights that entitles him to custody of the child.[279] However, if a prospective unwed biological father fails to register within thirty days after the birth of the child or before the day the child is surren dered for adoption, whichever is later, a court can find that he has abandoned the child and forfeited his parental rights.[280] The adoptive parents can then attempt to overcome the presumption by proving a ground for termination of the natural father's parental rights.[281] SCRUFNA proposes that such grounds would include "incompetence, physical abuse of the mother during her pregnancy, conviction for a violent felony within the last ten years, and spurning a birth mother's pleas for assistance during pregnancy."[282]

This proposal has two serious flaws. First, the biological father has the initial burden of discovering the pregnancy and the subsequent surrender of the child for adop tion.[283] Considering the overwhelming autonomy a pregnant mother has, a biological father should not carry that burden. Only the mother has the choice of aborting the child or placing the child for adoption. It is overburdensome to require "men who are concerned that they may have impregnated a woman and are interested in taking responsibility for their potential offspring, to take . . . affirmative action" by filing.[284] An unwed father has a fundamental right to establish a relationship with his child. Requiring the father to register every time there is a chance that he may be a father when he has no knowledge that a woman is even pregnant, much less that he may be the father, is not a necessary means to achieve the state's interests.

Additionally, SCRUFNA, like Senate Bill 3026 and House Bill 227, is underinclusive. Filing should not be the only means by which an unwed father has standing to contest an adoption. This filed-fathers only approach would not grant standing to the man who has assumed actual responsibility for the pregnancy and expects to have equitable rights to raise his child.

IX. CONCLUSION

The issue of how much responsibility an unwed father should assume before gaining full constitutional protection to establish a rela tionship with his newborn is not easy to re solve. States vary greatly in their approaches to deciding which fathers should be recognized as fathers and how much protection their inter ests deserve. An unwed biological father's genetic link to his child and his asserted intent and willingness to assume a parenting role for his newborn should be sufficient to trigger full constitutional protection of his inchoate interests. That constitutional protec tion should be recognized and implemented by establishing a biological rights doctrine. When an unwed biological father contests the at-birth adoption of his newborn child, he should be presumed fit to take custody of that child. His parental rights should negate any interest the prospective adoptive parents may have, and the presumption of his fitness should be rebutted only by clear and convincing evidence. Only the father's demonstrated intent to assume custody of the child should be considered. His emotional relationship with the mother should be irrelevant. The courts are not protecting his opportunity interest in a relationship with the mother, but the prospective relationship he seeks with his child.

The state should begin instituting the biological rights doctrine by clarifying legis lative intent and eliminating ambiguous statu tory terms that allow the judiciary to waive the biological father's consent based on his prenatal conduct towards the mother. In addi tion, the state should establish adequate no tice procedures that hold the birth mother responsible for naming, searching for, and noticing the biological father, and make her a party to the consent-termination proceedings. All biological fathers should be required to consent to an adoption before the state is permitted to terminate their parental rights. The court should waive that consent only if there is clear and convincing evidence that the father's custody will be detrimental to the child. "Detriment to the child" would be met by proof of the father's failure to provide (or attempt to provide) financial support in accordance with his means. Finally, if the biological father gains knowledge of the adoption late in the proceedings, he should have a specific period of time in which to assert his parental interest and gain custody of the child.

These recommendations would make the rights of biological mothers and fathers more equitable, encourage responsible fathers, deter social engineering by the courts, protect the interests of children subjected to adoption, and help to relieve the administrative burden of the adoption process. Few things in life are as certain as the biological link between a parent and child, and even fewer rights deserve as much protection. States only do more harm when they fail to recognize these facts.