The NC Supreme Court reversed a lower court yesterday in a very interesting ruling on birth fathers and their consent to give up their children for adoption.
Those of us that practice in the adoption world have been waiting for this decision because the NC Court of Appeals had thrown a monkey wrench into what had been well-settled law on what a birth father has to do in order to establish his rights.
The question isn’t really about DNA. The courts in the United States have long said that having a biological connection with a child isn’t enough to make you a dad. Instead, a father has to act in a way that triggers his rights, for example his right to withhold his consent to an adoption. Simply having unprotected sex with a woman won’t be sufficient to become a father with all the Constitutional rights that come with fatherhood.
The Court yesterday tackled the question of what happens in a situation where a man did not know that the woman had gotten pregnant and given birth until after the petition to adopt had already been filed by the adoptive family. The NC Supremes decided that this biological father could have figured out that the biological mother was pregnant and he “failed to grasp that opportunity by taking any of the steps that would establish him as a responsible father.”
The really interesting part about yesterday’s decision for me, though, is not what the North Carolina Supreme Court ruled, but HOW it ruled.
The majority opinion was authored by Justice Robert H. Edmunds, Jr. and joined by three of his colleagues, including Chief Justice Sarah Parker.
The dissenting opinion came from three of the Court’s four female judges: Barbara Jackson, Robin E. Hudson, and Cheri Beasley.
Why the gender split? Why did the majority of justices currently sitting on the NC Supreme Court rule along gender lines in a case that involves the most elemental of gender differences – the ability to carry and give birth to a child?
The case appears to hinge on responsibility. The majority opinion indicates that the biological father bore the responsibility for discovering that the woman he slept with was pregnant. He had previously impregnated her, resulting in an abortion, so he knew that she had the ability to get pregnant. He inquired about birth control but wasn’t clear on what method she had been supposedly using and failed to ensure that no child was conceived by using condoms himself. In short, the majority opinion found the biological father to display only “incuriosity and disinterest.”
The dissent found that the degree of responsibility required by the majority was too great, and “imposes unrealistic requirements on potential birth fathers.” The three dissenting justices pointed out that the birth mother never disclosed to her former lover that she was pregnant, although she had ample opportunities to do so and actually took steps to conceal his true name and identity during the adoption process.
So why did all of the men on the bench decide that the male bore the chief amount of responsibility in this case and the majority of women on the bench decide the opposite?
I don’t have any easy answers but I’m fascinated by the question. Are women being harder on women by expecting more from women? Are men being paternalistic by expecting less of women?
There has been some research into gender and judges, most recently reported by Shankar Vedantum on National Public Radio.
I invite you to read the opinion and see how you decide.