The Paradox of Unmarried Fathers and the Constitution: Biology 'Plus' Defines Relationships, Biology Alone Safeguards the Public Fisc

85 Pages Posted: 28 Mar 2007

See all articles by Laura E. Oren

Laura E. Oren

University of Houston Law Center


What makes a man a father in a constitutional sense? The United States Supreme Court seems to answer that question by saying, "it depends." Sometimes it is biology alone, but sometimes 'biology plus' is required. Since the mid-1970s, biology alone usually satisfies the constitutional test where there are benefits to give out and where those emoluments cost the state money or something else of value. It is apparently permissible to give neither the indigent father nor the indigent mother a choice in this matter. Involuntary paternity establishment, with the coerced 'cooperation' of the mother, is permissible. Even if paternity establishment is a waste of state resources, a futile attempt to get blood out of a stone, the state may do this. Indeed, in order to keep its Title IV-D funding, the state must do this. According to this approach, there is but one family, normatively private, and it requires a single financially responsible father. If he balks at that responsibility, then the state can thrust it upon him on a simple proof of biology alone.

On the other hand, a biological father's personal relationship to his child may turn on whether a 'biology plus' standard has been satisfied, especially where there is another man prepared to take up financial responsibility in his stead. After the last in a series of adoption consent cases, Lehr v. Robertson, line-drawing is necessary to determine just how much 'plus' is enough to ripen the inchoate claims of an unmarried father into mature rights to notice, a hearing, and the ability to withhold consent to adoption of his child by another man.

What should we make of this apparent paradox of paternity? In particular, how does the distinction apply to the putative father who claims to have been thwarted and deprived of his 'opportunity interest' to develop a relationship with his newborn child? The Court has provided little or no guidance for Lehr line-drawing in this context. The difficulty arises because there has been no time for the "opportunity interest" recognized by the Court to ripen into something with greater constitutional significance. In this situation, it is harder to define and establish the 'plus' factor that is necessary for the relationship claims. As a result, outside of the context of an approved putative father registry, and despite some examples taken from state court decisions, the constitutional fate of the thwarted putative father remains to be seen.

Keywords: Unmarried Fathers, Adoption, Paternity, Putative Father, "Biology Plus"

Suggested Citation

Oren, Laura E., The Paradox of Unmarried Fathers and the Constitution: Biology 'Plus' Defines Relationships, Biology Alone Safeguards the Public Fisc. William & Mary Journal of Women and the Law, Vol. 11, p. 47, 2004, Available at SSRN:

Laura E. Oren (Contact Author)

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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