(FindLaw) -- Recently, the notification provision of the Florida Adoption Act -- enacted last October -- has touched off a flurry of controversy in the press and in the courts. The provision applies to a mother who is putting her child up for adoption, and is uncertain of the father's identity or where he lives. It requires her to publish a newspaper ad in order to try to find the father.
The idea is that if possible, a father should not give up his parental rights without his knowledge -- a laudable goal. But the method by which this goal is achieved is potentially highly harmful to the mother.
In the ad, the mother must disclose her name, age, height, hair and eye color, race and weight; her child's name, date and place of birth; and -- if it is the address that is unknown -- the father's name. Moreover, she must also publish her sexual history -- a description of every potential father and the dates of their sexual encounters. The ad must run once a week for four weeks in a newspaper in each city or county in which conception might have taken place in the year before the child's birth.
Essentially, the Act pits a woman's privacy rights against a man's parental rights. Moreover, it weights a woman's privacy very lightly, while weighing very heavily the parental rights of a man who, so far, has not come forward, during the pregnancy or afterwards, to claim a child as his.
Therefore, it's no surprise that in July, six mothers challenged the notification provision of the Act. Two are minors; two are having children as the result of rape. All six sought a declaratory judgment that the provision violates their privacy rights, under the U.S. and Florida constitutions.
The Baby Emily case that prompted the Florida law
The Florida legislature was inspired to create the Act after the case of baby Emily -- a three-year legal battle in which the baby's father, a convicted rapist, tried to contest the baby's adoption long after she was adopted. The court eventually ruled in favor of the adoptive parents, and against the father.
The Act was intended to prevent similar future suits by ensuring that, before an adoption took place, the fathers' parental rights had been terminated in a way that accorded with constitutional due process standards -- with potential fathers being provided notice and an opportunity to be heard.
How the Adoption Act changed the law, and why legislators Are rethinking it
Before the Act was passed, Florida law (like that of most states) already provided that a father's pre-adoption consent had to be procured if his paternity had been already established or presumed -- due to marriage, adoption, a court decision, a paternity test, his formal acknowledgment of paternity, or his "repetitive" or "customary" support to the child or mother during the pregnancy.
Florida law also required consent from a man who had already been identified as a possible father -- by the birth mother, or in a pending paternity, custody, or termination of parental rights proceeding.
What, then, did the notification provision add? The answer is that it addressed scenarios in which paternity has been neither established nor presumed, and the birth mother has not identified any father, because she is unsure of his identity and/or cannot locate him.
Obviously, the law poses a serious deterrent to mothers who want to put their babies up for adoption -- forcing them to publish the privacy-violating ad in order to do so. As a result, it presents the rare case in which pro-choice and pro-life groups both oppose the same statute.
Pro-life groups object because the Act may be having the effect of increasing abortions; pro-choice groups object because women must expose their sexual history in order to make a choice concerning their children. Now even one of the legislation's sponsors, Florida Senator Walter "Skip" Campbell, has admitted the legislature made a mistake.
The legal challenge to the notification provision
In this summer's suit by the six mothers, the judge denied the motion for a declaratory judgment. He held that the two mothers who had conceived as a result of rape were not subject to the law, but as for the other four mothers, he held that the law was constitutional. An appeal is planned by the lawyer for the six women, Charlotte Danciu, and seems likely to succeed.
According to the judge's decision, because the Act violates privacy interests, Florida has the burden to show that it serves a compelling state interest, and does so by the least intrusive means.
First, the judge held that a mother clearly has a reasonable expectation of privacy as to her sexual history, and as to public knowledge of her unplanned or unwanted pregnancy or her decision not to raise the child.
Second, he held that the Act's notice provision serves two compelling state interests: if the father is found through the ad, the Act has helped to strengthen and maintain the bond between parent and child, and it has also helped to decrease the state's burden to support the child if the newly-located father can and will pay child support.
Third, the judge held that these interests are not compelling in cases of "forced sexual battery" or "forced rape" (as opposed to consensual "statutory" rape). In those cases, the judge reasoned, the notice provision conflicts with the law criminalizing the publishing or broadcasting of identifying facts of the victim of a sexual offense.
Moreover, he pointed out, Florida law allows for the termination of the father's rights without his consent where the child was conceived as a result of forced rape -- meaning that the search for the father is unnecessary, since the adoption can go forward without him and he can never challenge it.
The least intrusive means: Why not put the burden on potential fathers?
That left the judge with a final question: Does the Act serve the compelling interest "by the least intrusive means"? The Judge wrote that this issue was not clear, since he lacked empirical evidence as to "the success (or failure) rate resulting from the existing notice requirements," as compared to the success or failure rate of possible alternatives, such as using only birth mothers' initials in the ads.
On this point, the judge was surely wrong to ask for empirical evidence. For one thing, as a matter of law, an alternative means need not be shown to be precisely as effective as the current means. Courts performing "narrow tailoring" analyses, in which they decide if the means taken are truly "the least intrusive" ones, do not generally require empirical evidence -- if they did, it would be hard to procure, because by definition, the possible alternatives have not yet been employed in the real world, only suggested in court.
In addition, one could easily imagine far less intrusive alternatives that would accomplish the state's goals. So even though the women's attorney did not present these alternatives to the court, one wonders why the judge did not merely ask if less intrusive means existed.
One alternative is a confidential registry of names of men who believe they may have fathered a child -- a proposal that the Act's opponents have already suggested. Lawyers, after consultation with their clients as to possible fathers, would need to check the registry list before proceeding with adoptions. More than 30 states already have this system. Its advantage is that it does not unduly burden or shame women, and it puts some burden on men to assert they have a true interest or concern in acting as father to the child.
Therefore, although the judge denied the women's motion to declare the entire notification provision unconstitutional, he left an opening for their lawyer as she takes her case to the Florida appeals court. The women's attorney needs to present a convincing case to the Florida appeals court of the many less intrusive alternatives that do exist.
Based on these alternatives, let's hope that the Florida appeals court will strike down the Act's notification provisions or that the legislature nullifies the provisions when it meets in March. The provisions severely violate women's privacy, while asking nothing of the men involved -- who have, by definition, already failed to make any effort to ascertain their possible paternity. That is neither fair nor legal, and there are alternatives that can serve Florida's and the children's interests in locating the father without seriously harming the mother at the same time.
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