IN THE SPRING OF 1995, Americans watched in horror as a sobbing 4-year-old was handed over to parents he had never seen. Raised by adoptive parents from the age of four days, the boy pleaded with the only mother and father he knew and promised to “be good” if they would let him stay. But the child was delivered to strangers and driven away forever, as his 7-year-old adoptive brother looked on. To many, the sickening sight of a child’s anguish was compounded by the knowledge that the tragedy had been played out under the auspices of both the Illinois and United States courts.
Commentators searched for villains to explain Baby Richard’s fate. They variously singled out the biological father, unmarried at the time of the boy’s birth, for his relentless pursuit of custody in disregard of the child’s well being; the biological mother, for lying to the absent father, telling him the baby was dead; the adoptive parents, who fought for custody long after learning of the natural father’s wish to be united with his child; and the legal system, for taking an unconscionable four years to reach an unsatisfactory result. If the goal is to prevent similar tragedies, however, one must look elsewhere: to common-sense reform of adoption statutes.
A society that would discourage litigation over potentially adoptable children like Baby Richard must restore the link between marriage and parental rights. That link has eroded since the 1970s, under the influence of expansive notions of individual rights and gender equality foisted on the states by the U.S. Supreme Court. Nowhere was this trend more evident than in a line of decisions beginning in 1972 with Stanley v. Illinois.
In that landmark case, the court overturned an Illinois statute that presumed the children of a deceased, unmarried mother to be wards of the state. The presumption could be challenged; the birth father could come forward and prove his fitness as a parent — but no such demand was made of women, should the circumstances be reversed. Hence the court found a violation of equal protection and due process.
In Stanley, the court flirted with the notion that biology alone entitled an unmarried father to constitutionally protected parental rights. The implications of that concept are bizarre — witness the recent case of a donor who is suing to locate children sired from sperm misappropriated by a crooked sperm bank. At this writing, the father has not sought custody, but under Stanley he could make a case.
By 1983, however, the court — possibly influenced by the familial breakdown already in overdrive throughout society — was pulling back. In Lehr v. Robertson, it adopted language from an earlier dissent, stating: “Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring. ” Six years later, in Michael H. v. Gerald D., a plurality of the court retreated even further, leaving states free to pass adoption statutes that favor marital families.
Unfortunately, many legislatures have yet to follow the high court’s lead, even though it should be obvious by now that the nation has an interest in stable two-parent families. Divorce and illegitimacy have made single-parent households and step-families commonplace, with disturbing consequences for children. Why, then, would a reasonable community subsidize child bearing outside marriage? The question is familiar in the context of the financial subsidy provided by welfare. But it is also time to reconsider the legal subsidy that was created when states enshrined unmarried fathers’ rights.
In practice, this means that when an unmarried mother places her baby up for adoption, the father can demand a custody hearing. He enjoys this right regardless of his fitness or demonstrated willingness to take responsibility for the child — and in the face of his refusal to take the one step society asks, marriage. For the adoption to go forward, someone must prove the father’s unfitness in court.
According to the doctrine of gender equality, this is as it should be. Both biological parents should possess identical rights to custody in preference to an adoptive family. But to assign two parties equal rights in a matter as emotionally complicated as child custody is to embrace intervention by third parties, brought in like Solomon to break the inevitable deadlocks. Such intervention is unavoidable when marriage ends in divorce. Outside marriage, however, there is no need to replicate this unhappy pattern. Cases like that of Baby Richard, whose unmarried father sought custody of a child he had never seen, show the terrible cost of laws inviting litigation over children.
When parents are unmarried and the father has yet to form a relationship with, and to support, the child, the mother should have an unfettered right to place the child for adoption. The mother, at least, has invested her energy in bearing the child. The situation is different, of course, if a single mother chooses to keep her child and accepts support from the father (to which the child is legally entitled). Then a good case can be made for the father’s receiving protection from the law — as a matter of state discretion, not constitutional right.
If state politicians — especially Republicans, who have fared well bemoaning the fraying social fabric — are serious about making fatherlessness rare, they can begin by undoing the legal subsidy of illegitimacy. The gravity of our cultural problems is such that legislators who profess the social ideal of marital childbearing have a duty to advance that ideal through law wherever they reasonably can.
It would take courage to withstand the inevitable charge that any such reform is reactionary or morally imperialistic. The true reactionaries, however, are those who cling to the discredited policies of the libertine 60s and 70s, despite the bitter harvest we now reap.
A state does have the right to say to its men, through its laws: If you want rights over how your children are raised, there are requirements. Marry the mother of your children, or at least support them once they are born. Otherwise you take your chances. For that matter, states should consider saying to their women, in all charity and true compassion: Take as much time as you need on the adoption decision. It is an enormous one. However, once you relinquish your child, you forgo all rights.
Baby Richard’s nightmare was avoidable. Under the adoption reform proposed here, his case would have ended when he was a newborn, not an impressionable child. The manmade emotional scars he may bear for a lifetime challenge the authors of state adoption laws to moderate their fervor for abstractions like gender equality, as the Supreme Court already has, and to show more realistic concern for the welfare of actual children.
John E. Coffey, a Philadelphia lawyer, served formerly on the Senate Judiciary Committee staff.
