The Myth of the Right to Privacy as Justifying Anonymity in Safe Haven Laws

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Published Date Written by Erik L. Smith

Proponents of safe haven laws often argue that a mother's fundamental privacy right entitles her to anonymity when abandoning her newborn to the state. That notion is a complete perversion of constitutional law. In Roe v. Wade,1[1] the Supreme Court held:

  • During the first trimester, the abortion decision must be left to the judgment of the woman's attending physician.
  • During the second trimester, the state may regulate abortion in ways reasonably related to maternal health.
  • During the third trimester of pregnancy (viability), the state may forbid abortion except where necessary to preserve the mother's health.[2]

In other words, by the end of the pregnancy, the mother's wishes are inferior to the state's interest in preserving the health of the infant. Accordingly, parents do not have a fundamental right to choose their method of childbirth, how they will surrender a child, or whether they will remain anonymous in doing so. The right to privacy for example, "does not encompass the right to choose a direct-entry midwife to assist with childbirth." Lange-Kessler v. Dept. of Education of the State of New York. [3] Having open adoption records "does not impede traditional familial privacy rights such as marrying, having children, or raising children." Doe v. Sundquist. [4] And “Because a birth mother has no fundamental right under the federal constitution to have her child adopted, she also can have no correlative fundamental right to have her child adopted under circumstances that guarantee that her identity will not be revealed to the child.” Does 1-7 v. State. [5]

 

Even in abortions the state may require identifying information. For example, it is not unconstitutional to require a minor seeking an abortion to identify herself when asking the court to bypass notice to her parents:

 

"...[W]e do not find complete anonymity critical. H.B. 319 takes reasonable steps to prevent the public from learning of the minor's identity....H.B. 319, like many sophisticated judicial procedures, requires participants to provide identifying information for administrative purposes, not for public disclosure." Ohio v. Akron Center. [6]

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The state may also require adult women to certify in writing that they consent to abortion and that their consent is informed and freely given. "The decision to abort...is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences." Akron Center. [7]

 

Opinions may differ on whether legalized abandonment constitutes good policy or violates parents' constitutional rights. But in no sense can anonymous child abandonment be justified on privacy grounds. The decision to avoid parenting one's born child simply is not a "pro-choice" or constitutional privacy right matter.

1.
410 U.S. 113 (1973). 
2.
Roe at 163-165. The trimester definitions are not fixed, but are approximations, based on the physicians assessment of the fetus' viability. 
3.
109 F.3d 137 (2nd Cir. 1997). 
4.
2 S.W.3d 919, 926 (Tenn. 1999). 
5.
993 P.2d 822, 836 (Or. App. 1999). 
6.
497 U.S. 502, 513 (1990). 
7.
at 442, quoting Planned Parenthood v. Danforth (1976), 428 U.S. 52. 

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.

 

Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent

Summary

Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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