Problem #3: Searching a putative father registry requires knowing the mother’s identity
Even if all states enacted putative father registries, the anonymity safe havens require renders putative father registries ineffective. Putative father registries aim to give potential fathers notice of adoption proceedings without relying on mothers’ honesty. A registry achieves this by making the putative father register the mother’s name alongside his name. When an adoption petition is to be filed, the clerk or other officer searches the registry for the mother’s name. Notice is given to all fathers registered in regard to that mother’s name. A clerk may make a supplemental search by looking for the father’s name. But if the mother is anonymous, the searcher must rely only on the mother’s word about who the father is--which defeats the main purpose of putative registries. And men have no duty to submit DNA, if that would even be a realistic and affordable cure.
Even where the anonymous mother has given the father’s true name, successfully searching the registry by the father’s name will reveal the mother’s name, because the father listed her. Any contested adoption that ensues will defeat the security and anonymity safe havens offer. Mothers will no longer trust safe havens.
Then, if the registry searcher has the father‘s true name, but lacks the mother‘s name, the search may find the father registered in regard to a woman other than the birth mother. This could violate the privacy of both the putative father and the “incorrect” mother.
The only way to ensure constitutional protection, whether due process, equal protection, or privacy, is to confirm the identity of the relinquishing mother. Pierce fully admits that safe havens cannot do this. And safe haven laws requiring mothers confirm their identities (perhaps also requiring counseling services, etc.) essentially make safe havens indistinguishable from formal adoption agencies. Safe havens would have no separate purpose.
Problem #4: Putative father registries do not normally apply to presumed fathers
Presumed fathers are men who were married to the mothers at the time of the birth or pregnancy, or single men who have had their paternity adjudicated before the adoption petition is filed. Presumed fathers typically do not need to sign their state putative father registries to be entitled to notice of an adoption petition. Thus, searching putative father registries will not locate them. Finding presumed fathers through some other way would require knowing the mother’s identity. Surely safe haven advocates realize this. Yet they offer no realistic suggestion about how to find husbands and adjudicated fathers.
Problem #5: Scarlet Letter laws do not parallel conventional methods of giving legal notice
One does not violate a mother’s privacy by giving a presumed or putative father legal notice of an adoption proceeding. The “scarlet letter law” involved the constitutionality of a statute forcing mothers to publish information about their sexual history in public records (i.e. newspapers.) But putative father registry listings are not public records. They are not subject to freedom of information acts. Certified mail and personal service are longtime, valid legal methods of giving respondent fathers notice of adoption petitions.
Under the guise of “saving babies’ lives,” conservative adoption advocates have taken one more step toward avoiding the legal rights and ethical needs of fathers and adoptees. Saving a few hypothetical babies is not worth weakening our constitution to the point where we deny the constitutional rights of, and ethical obligations owed to, hundreds of thousands of real fathers and children. We need to repeal all safe haven laws, and end this embarrassing and flawed piece of American jurisprudence before the Supreme Court untimely does it for us.
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