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Hastings Law Journal

Abstract

Biology makes a mother, but it does not make a father. While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomyit is easy to identify the mother of each child. But aside from the biological, there are historical, social, and political reasons for recognizing mothers as legal parents while disregarding legal parenthood for nonmarital fathers. This Article seeks to unpack the distinctions drawn between biological mothers and biological fathers in decisions about abortion and adoption placement. Both decisions are given to the sole discretion of the mother under current law, while such unilateral decisionmaking seems to make sense only in the context of abortion. Once a child is born, and a decision is being made about whether to parent the child or to place the child for adoption, there is less justification for excluding the biological father. This Article explores notions of fatherhood and how fatherhood has changed in society to show how the legal standards have lagged behind those societal changes. The Article concludes with a proposal on how courts should address birth fathers’ rights in adoption to provide greater protection for those rights.

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