Adoption Notices to Genetic Fathers: No to Scarlet Letters, Yes to Good Faith Cooperation

Abstract

American courts and legislatures have struggled to define the participation rights of genetic fathers in governmental adoption schemes for infants born to unwed mothers as a result of consensual sexual intercourse. Federal constitutional privacy interests in both paternity opportunity and childrearing compel a certain level of genetic father participation. However, excessive levels of participation undermine the goals of swift, final, and inexpensive adoptions, as well as deny some maternal preferences. The difficulties in balancing genetic father participation with competing interests are well illustrated by recent developments in Florida. There, the so-called "Scarlet Letter" law of 2001 (effectively branding women as promiscuous and unfit parents for little reason) was rather quickly replaced by a "Putative Father Registry" law in 2003. Unfortunately, neither law strikes a proper balance. Scarlet Letter laws are unwarranted (as well as unconstitutional), while putative father registries confer inadequate participation rights for unwed fathers. The most appropriate course of action would be for Florida, and other states, to incorporate a good-faith cooperation responsibility for most genetic mothers during newborn adoptions, under which mothers would have greater duties in naming or helping to name the genetic fathers of newborns who are placed for adoption.