Justice for Thwarted Fathers? Problems for Retrospective Parental Rights Claims

1.1 The Legal Rights of Birth Parents

In nearly all jurisdictions, the birth parents of a child have legal parental rights and responsibilities by default; they must be found unfit in order to have these rights and responsibilities denied or terminated. By birth parents is here meant the gestational mother of a child and her legal partner or spouse, for whom the traditional ‘presumption of legitimacy’ grounds parental rights and responsibilities regardless of their genetic relationship to the child. However, if the gestational mother’s spouse is not the genetic father of the child, it is possible in many countries for (a) the genetic father to seek legal parenthood in their place; and/or (b) the spouse to seek to disavow their default legal parental status. If the unmarried genetic parent is able to establish their legal parentage at this point, determination of their ongoing rights (like those of the birth mother) must be judged against the fitness standard, rather than the best interests standard (Baron 2023, 98–101). At the same time, there is often a limited window of opportunity for either of these processes to be undertaken, since courts are less likely to accept an application for parentage (or dispute of parentage) in cases where the relevant parent–child relationship is more firmly established. To disrupt such a relationship is widely considered to be contrary to the best interests of the child.

This attitude is reflected in law across a number of countries, including the United States, the United Kingdom, Germany, and France (Black 2018, 19–20). For example, in a recent case (A Local Authority v. SB & ORS), HHJ Case (KC) concluded that under UK law, the lack of genetic connection between father and child was insufficient to automatically terminate his parental responsibility. She observed that ‘section (2A) [of The Children Act 1989] is the only means by which the court can consider removing parental responsibility from a father who has gained it under subsection (1); [and] that it is a welfare-based decision’ ([2022] EWFC 111, para. 35). HHJ Case (KC) found further ‘that the fact that the man in question has been found not to be the biological father will feed into that welfare consideration, but that the discharge of parental responsibility is not automatic’ ([2022] EWFC 111, para. 35). Similarly, in the United States, the Unified Parentage Act (2000, revised 2002) ‘gives the court authority to deny a motion for genetic testing to determine paternity where this is not in the best interest of the child, taking account of factors such as the length of time during which the presumed father has acted as father, the nature of their relationship, and the age of the child’ (Black 2018, 19). This Act also establishes a concrete time limit for unmarried genetic fathers to establish their legal rights: unless they can show ‘compelling reasons’ for failing to do so, they must register their paternity before the child’s birth or within 30 days after the birth (Oren 2006, 174).

The man who is not married or in a civil partnership with his child’s mother must therefore take action within a relatively short period of time to ensure his parental status. The biological link is insufficient: as Seymore (2016) observes, a genetic father ‘is not a legal parent unless he takes affirmative steps to grasp fatherhood’ (819). But what if the genetic father – due to some omission or deception on the part of the birth mother – does not know that he has a child, and therefore misses the window to establish legal parentage? That leads us to the subject of this paper: the ‘thwarted’ father.

1.2 Who is a Thwarted Father?

In defining this category, we may begin with the fathers who are not included. I am not concerned here with the plight of men whose legal parental rights were historically held as purely a matter of marital ‘legitimacy’ despite their actual custody and care of their offspring. A classic example is found in the 1972 landmark case Stanley v Illinois (405 US 645). Peter Stanley had lived with his partner Joan intermittently for 18 years, during which time they had three children but never married. When Joan died, the children were declared wards of the state on the basis of the Illinois statute that defined parents as ‘the father and mother of a legitimate child, or the survivor of them, or the natural mother of an illegitimate child, and includes any adoptive parent’ (Ill. Rev. Stat. 1967, ch. 37, par. 701–14 (1967), quoted in Carbone 2005, 17). Peter Stanley was treated as a legal stranger to his children despite the practical facts of their upbringing. On appeal, ‘the Court found that the state could not take his three children from the custody of the man who had “sired and raised” them on a pure best-interests basis and without making a finding of actual parental unfitness’ (Oren 2006, 158). In a moral sense, Stanley was indeed treated unjustly, and the changes to US law that followed this and similar cases were a reflection of the gradually more egalitarian treatment of unmarried fathers and ‘illegitimate’ children. However, Stanley was not a thwarted father in the sense of interest in this paper. This paper is about fathers who have never been allowed to take custody of their genetic children and have therefore never had the opportunity to establish a parent–child relationship with them. But more specifically, the thwarted father is not thwarted by the law – the opportunity withheld from him is one that the law ordinarily would have afforded him.

To make this distinction clearer, let us look at another example of a father who – whilst treated unjustly – was also not thwarted in the sense on which this paper focuses. Donald Kirkpatrick was a central figure of the 1982 Texas case In re Baby Girl S (628 S.W.2d 261). Kirkpatrick was the twenty-five-year-old unmarried father of a baby girl. He knew of the mother’s pregnancy; attempted to support her (including by offering to marry her); and tried to maintain contact with her. When he found out that the mother – who was 16 at the time – planned to give up the child for adoption, ‘he made plain his desire to raise the child himself, and he even deposited money with the Texas court for the child’s support’ (Buchanan 1984, 378). Under Texas law at the time, however, the trial court ‘could declare paternity only if it found legitimation to be in the best interests of the child’ (379). The trial judge found against Kirkpatrick, deciding that the child’s interests would be best served by placing her for adoption. In this case, the genetic father was thwarted in his pursuit of parenthood. However, he knew of his child’s existence, and his pursuit of parenthood was thwarted by the law at the time (albeit a law which a gradually more progressive society eventually found to have been unjust).

Another case, decided a decade later and with an entirely different outcome, is ‘Baby Richard’ (O’Connell v. Kirchner, 513, US 1303). In this case, the parental rights of a four-year-old child’s adoptive parents were retrospectively declared illegitimate; parental rights and custody were awarded instead to the child’s genetic father, Otakar Kirchner. Kirchner, unlike Kirkpatrick, had been thwarted not by the law but by the mother of the child. He had known of his former partner’s pregnancy but been told that the child had died shortly following birth, and he had therefore not made a parental claim during the standard time period following birth. Kirchner was therefore a paradigmatic thwarted father in the relevant sense for this paper. Had he legitimated the child, his consent (as well as the mother’s) would have been necessary to approve the adoption; post facto, all he could do was petition for the adoption to be overturned. The lower court found that it was not in the best interests of the child to grant Kirchner parental rights. However, on appeal, the Illinois Supreme Court invalidated the adoption on the basis that the genetic father’s parental rights had never been properly terminated on unfitness grounds. In this case, as I have argued elsewhere:

A crucial role was played by the claim that the genetic father’s legal rights had not been properly terminated at the time that the child was adopted. According to this line of reasoning, something was withheld from him to which he had a right; and further, the nature of that right is such that justice demands a particular kind of resolution (custody of the child) rather than another kind of compensation for lost opportunity. (Baron 2023, 187)

In other words, the reason for deviating from standard practice in some thwarted father cases seems to presuppose that the moral rights of the father justify – and even require – this kind of a deviation. It is this presupposition, and the significance of a perceived injustice, that this paper explores. Even if (as a number of accounts of moral parenthood suggest) a genetic father has pro tanto moral rights to parent his child, and these moral rights justify his having legal parental rights, several further steps are required to show that he should be allowed to claim the opportunity to parent months or even years following the child’s birth.

In Section 2, I outline and critically examine Norvin Richards’ account of parental rights and their need to withstand specifically unjust interruptions, as applied to thwarted father cases. This account is unique in challenging the assumption, otherwise generally shared among philosophers of parenthood, that the best interests of the child require us to prioritise established parent–child relationships over the interests of other prospective parents in raising the child in question. Although some other accounts would substantiate the thwarted father’s claim to having initially had moral rights over the child, only Richards’ account makes an explicit case defending the child’s ‘return’ to the thwarted father. I argue, however, that this account cannot plausibly justify the claim that the thwarted father has a moral right to custody of the child in question even when that child already has a caring relationship with their adoptive parents. I argue this on the grounds that (a) it is implausible in most such cases that the genetic father has parental rights at the time that the child is born; and (b) the only right that the liberty-based account might reasonably justify at the time the child is born is the moral right to begin rearing the child, which has different defeasibility conditions to moral parental rights in the full sense.

2.1 The Liberty-Based Account

Norvin Richards’ (2016) account of the rights of biological parents to rear their offspring is grounded in an appeal to more general liberty rights. He begins from the basic principle that ‘we are at liberty to do anything we choose, as long as it is not morally wrong’ (2016, 271). We are also at liberty ‘to continue any morally innocent action we have underway, as long as it continues to be morally innocent, just because it is what we are doing’ (2016, 272). Richards then applies this reasoning to the project of ‘creating a child whose parents they will be in the years to come’: if one is entitled to begin and continue this project, then one must also be entitled to parental rights regarding that child, since having parental rights is part and parcel of being the parent of a child (2016, 272).

In unplanned pregnancies, Richards argues, the gestational mother has parental rights in virtue of her liberty to decide to continue her pregnancy and parent the resulting child. Whether or not the child will be created is a decision about what she will do with her body; it is therefore entirely determined by her liberty rights. If she decides to have the child and parent it, the same liberty-based logic applies as in the original version of the argument: she has the right to continue doing what she was doing. However, whether the genetic father has the right to parent the child depends upon whether the mother had promised he could be a (social) father to any child they might happen to conceive: ‘Having made that promise, she wouldn’t then be perfectly free to choose not to inform him that she was pregnant, to choose a different partner for the next stage, or to choose to go it alone’ (2016, 273). Alternatively, he might have this legitimate expectation if ‘their history together made this a reasonable belief that she did not discourage’ (2016, 265).

We may note here that this immediately restricts the pool of genetic fathers who acquire parental rights in unplanned pregnancies, since there will be many situations in which no legitimate expectation of this kind could be formed. Richards’ example is the man who fathers a child during a one-night stand under circumstances where a child could potentially have been conceived and doesn’t make any efforts to follow up with the mother.^[3] Other examples might include the man whose donated-for-research sperm is used in fertility treatment due to administrative error, or the man who finds out he is a genetic father after the break-up of an unhealthy or abusive relationship with the child’s mother. We could even extend this to genetic fathers who find out that a child was conceived after any breakup in which the couple did not end on good terms. Embarking upon the project of having and parenting a child with an ex-partner is a project that few couples (if any) undertake deliberately. It is therefore not particularly plausible that a man could have a reasonable expectation that his ex-partner would let him be a father to her child, even if this would have been entirely reasonable to expect of her during their relationship. If ‘legitimate expectations’ are to be determinative of a genetic father’s parental rights in unplanned pregnancy, it stands to reason that this should include expectations nourished during and following a break-up, and not only during the relationship itself.^[4]

2.2 Returning to the Thwarted Father

Richards attends closely to the situation of the thwarted father, looking in particular at the cases of ‘Baby Richard’ (mentioned above) and another similar case, ‘Baby Jessica’ (In re Clausen, 442 Mich. 648, 502 N.W.2d 649 (1993)). Richards argues that it would be strongly morally objectionable for judges to make their custody decisions in such cases on the basis of the child’s best interests: ‘the deepest wrong is that a judge who did this would ignore the right that biological parents have to raise their children themselves or to decide that it would be better if someone else did’ (2010, 12). The rights of biological parents to keep and raise their own children can ordinarily only be given up voluntarily or be terminated on grounds of unfitness; as mentioned above, where judges have ‘restored’ children to the care of thwarted fathers, this has generally been on the grounds that those fathers’ rights were never properly terminated. In the ‘Baby Richard’ case, for example, the Illinois Supreme Court observed that ‘if the best interests of the child were a sufficient qualification to determine child custody, anyone with superior income, intelligence, education, etc. might challenge and deprive the parents of their right to their own children. The law is otherwise and was not complied with in this case’ (In re Doe, 638 N.E.2d 181 (111. 1994) 182–183).

In agreement with this reasoning, Richards asks, ‘Assuming we agree that the state should not ordinarily enforce its judgment of what is best for a child by deciding who her parents are to be, why should it do so in the Baby Jessica case?’ (2010, 14). This question presupposes, however, that the state can only decide who the social and legal parents of Baby Jessica ‘are to be’ if we deny that her adoptive parents are parents in any morally relevant sense. This can only be the case if we accept that the thwarted father has always been and continues to be a parent throughout the period in question and that this means that no other party can acquire legitimate parental rights, regardless their relationship with the child.

Richards argues that ‘a biological parent is the child’s parent at the start and ordinarily has a right to continue, but a free choice to stop forfeits that right, and it leaves no residual right to resume at some time of one’s choosing’ (2010, 52). If our parental rights are essentially grounded in our liberty to continue undertaking a project that involves our having parental rights, then it stands to reason that voluntarily interrupting the project will interrupt those rights. However, the kidnapping of a child might interrupt the biological parents’ project of parenting, but ‘can’t cost them their right to be the child’s parents, if there is to be any sense at all in speaking of their having had that right’ (2010, 52). The biological parents’ claim to have their child returned is especially strong because of the injustice causing the interruption of their project: they have not been accidentally separated, their child has been kidnapped. If we learned of this injustice and did not rectify it by returning the child, Richards argues, we would be complicit with the original injustice.

The barring of the thwarted father from asserting his legal parental rights is (Richards argues) analogous analogous to a kidnapping case. Although not an actual kidnapping, the biological mother’s deception makes this ‘a case in which wrongdoing by another person separated a biological father from his child’ (2010, 52). The adoptive parents – even if they knew nothing of the original wrongdoing – would be complicit with the original injustice if they did not return the child to her father. Richards does recognise that the reasons for overriding the biological father’s priority are significantly stronger the older the child and the longer-established her relationship with her adoptive parents. The distress to both these parties will be far greater when the child is five years old than when she is five months old. He nonetheless argues that the father’s moral parental rights are no different between the two cases (assuming that he genuinely falls into the category of thwarted father).

According to Richards, the father has a moral right to parent the child because he began the morally permissible project of parenthood by co-creating a child; this right is only meaningful if it can withstand unjust interruptions; his parental rights are therefore enduring and are not eroded by either the child’s best interests or the fact that the adoptive parents’ own parenthood project establishes their parental rights. Although it could be argued that the adoptive parents’ own moral rights make them strong contenders to claim custody, Richards appeals to the injustice originally inflicted upon the thwarted father and the moral requirement for the adoptive parents to relinquish the child, rather than be (knowingly) complicit in that injustice. All this leads Richards to agree that both the ‘Baby Richard’ and ‘Baby Jessica’ cases were resolved correctly: with the ‘return’ of both children to their genetic fathers.

3.1 Justice, the Right to Rear, and First Refusal

Richards, like many philosophers of parenthood, treats moral parental rights as something of a package deal: he refers throughout to either ‘parental rights’ or ‘the right to parenthood’ rather than considering more specific rights. This makes sense, given his appeal to the liberty to undertake projects as the basis for parental rights. However, I would argue that there are individual parental rights that can and should be separated from others given their differing conditions. One of these, as I have previously argued, is the gestational mother’s strong pro tanto negative liberty right not to be separated from her newborn child (Baron 2020). The facts of gestation and a commitment to liberty from grave harms are sufficient to justify this right, but they do not straightforwardly entail that the gestational mother has other rights commonly characterised as parental (such as the right to decide on the child’s medical treatment or their upbringing). The young adolescent mother may therefore have the right to keep her newborn with her, but not to make authoritative decisions regarding the child’s medical treatment.

The right to begin rearing one’s biological offspring in an intimate parent–child relationship – as opposed to continuing to do so – would seem to be a right with quite particular entry and exit conditions. Let us call this a ‘maker right’ for the time being (in loose parallel with Lindsey Porter’s definition of maker obligations). The maker right would be a right to the opportunity to begin parenting and to establish a parent–child relationship, rather than to a specific role, status, or ‘ownership’ claim on one’s child. But this means that it may well have different defeasibility conditions to the right to keep one’s child and continue parenting. This means that although justice would demand the return of a kidnapped child to her parents, it cannot necessarily require the overturning of an adoption to provide a genetic father with the opportunity to begin rearing the child. For the thwarted father whose only putatively parental act to date has been conception, acquiring moral parental rights depends upon the (legal) right to rear being exercised. Further, if the opportunity in question ceases to exist, so too must the right. In the words of the South Dakota Supreme Court: ‘Children are not static objects. They grow and develop… The basis for constitutional protection is missing if the parent seeking it does not take on the parental responsibilities timely. The opportunity is fleeting. If it is not, or cannot be grasped in time, it will be lost’ (In re Baby Boy K, 546 N.W.2d 86, 97 (S.D. 1996), quoted in Oren 2006, 181).

Again, this is not to say that the thwarted father has not been wronged if the mother deceives or manipulates him so that he loses out on an opportunity to which he originally had a legal right. However, the wrong in question is not – contra Richards – the violation of the thwarted father’s (moral) parental rights. Nor is it a wrong that must necessarily be rectified by granting the thwarted father custody. In cases where the father finds out that he has a biological child years after that child has been adopted, it would seem clear that the opportunity in question cannot be reclaimed. In this sense, the maker right is more like a right of first refusal than a property right, citizenship right, or inheritance right. We can imagine a situation in which A has a right of first refusal regarding a certain job, should the position ever become available. However, they find out at some point that the job became available and was given to B (who knew nothing about A’s agreement with the university). A has certainly been wronged, but justice for A cannot demand that B is fired from their position and that A is instated in B’s place. The most that justice can demand is that A is compensated for the wrong – for example, through financial compensation or by finding another suitable position for them.

A ‘right of first refusal’ to parent one’s genetic child, if it exists, must clearly be defeasible. By referring (above) to the development of a parent–child relationship between the child and adoptive parents, it might appear that what I am arguing here is that the child’s best interests outweigh the father’s enduring right to custody. To clarify, then, I am arguing that the genetic father’s right to the relevant opportunity is eroded sometime after the opportunity in question has been taken up by (morally innocent) others. I use ‘eroded’ here rather than a more determinate term such as ‘overridden’ or ‘defeated’ because the passage of time and the building of relationships are morally relevant. A thwarted father’s moral claim to be allowed to establish legal parenthood is stronger when it is brought forward the day after a child has been adopted than when it is brought 6 months later, and so on. This should also give rise to a moral impetus for courts to settle such cases as quickly as possible. As Justice Sotomayer observed in a more recent case, there has been a tendency for the parent currently ‘in possession’ of the child to extend the litigation process, and to be rewarded for doing so; but the law ‘cannot be applied so as automatically to “reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation”’ (Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) [Sotomayor, J., dissenting]).

This brings us on to the next point: what justice might demand for the thwarted father. We have said that it cannot necessarily demand that an established parent–child relationship be overturned in order to give the father a new opportunity to parent the child. However, the fact of his original legal entitlement together with the fact of wrongdoing (in the form of deception or manipulation) that caused him to lose this entitlement, might give courts strong reason to consider overturning adoptions under some circumstances – especially if the deception is discovered within the first few days, weeks, or even months of the child’s life. The father’s claim to take over custody of the child might also be given priority over the claims of other prospective adoptive parents if the first adoption fails for other reasons (or should the adoptive parents die).^[9] This would seem straightforwardly analogous to the hiring case described above, in which we might expect A to have a right of first refusal should B’s job become available again. But courts should also be prepared to consider the reasons for the deception in question. Why was this father ‘thwarted’ in the first place? Here, we may note Shanley’s (1995) argument on this point:

A court should be required to hear a mother’s objections, if she has any, to a father’s assuming custody of the child, both because the birth of a child has resulted from a web of social interactions and relationships, and because the mother’s relinquishment of the child for adoption should be viewed as the last in a series of actions meant to provide care for the child, not as an act of abandonment that gives her no interest in the child’s placement. In cases in which the mother objects to the father’s assumption of custody, a court should listen to the reasons the mother opposes placing the child in the biological father’s custody. (Shanley 1995, 92)^[10]

3.2 Three Objections

Richards – or an advocate for his view – might argue here that a genetic father could form the reasonable expectation of fatherhood of any child he might help conceive on the basis that he lives in a country that allows unmarried genetic fathers to claim parental rights (including by challenging the presumption of legitimacy in the case of a child conceived in an extra-marital affair). In this sense, he might unknowingly take the first steps in a parental project by conceiving a child with the gestational mother, who would then interrupt that project unjustly by keeping the child from him.

I would reject this interpretation; accepting such an approach makes Richards’ account unreasonably generous in cases of unintended pregnancy. Liberty rights are those that prevent others interfering with our decisions, actions, or projects, whether before they begin or once they are underway. But to say that the gestational mother’s deception interrupts the father’s parental project is to stretch the meaning of project beyond the reasonable protection of standard appeals to liberty. We may be aware of the legal structures in our social context and the putative rights they might afford us under specific circumstances, but this cannot reasonably imply that we can simply find ourselves already in the midst of a specific kind of project in the morally relevant sense. Accepting such an interpretation would also make redundant Richards’ appeals to the mother’s historical promises to the father – or to her nourishing ‘reasonable expectations’ to the same effect – as a basis for the father’s parental rights.

A different objection might point specifically to the wrongdoing of the gestational mother (and any associated third parties) in barring the genetic father from exercising his legal rights. In parallel with the appeal to intuition on which Richards bases the kidnapping argument, one might argue that this deception ‘can’t cost [the father] the right to be the child’s parent, if there is to be any sense at all in speaking of their having had that right’. After all, if the right to continue in a parental project is strong enough to withstand substantial interruptions imposed as the result of wrongdoing, then we might think that it must be strong enough to protect fathers’ reasonable expectations of parenthood in the case that wrongdoing prevents them from ‘grasping’ that parenthood.

However, I would argue that this begs the question: deception in thwarted father cases is not equivalent to the kidnap case unless we can show that the genetic father already had moral parental rights (and not only the opportunity to claim legal rights). The above paragraph, and in Sections 2.1–2.2, make clear that Richards’ liberty-based account grants the genetic father moral rights to parent the child only if he actively affirms his participation in the project with the consent of the mother – or at the very least, with reasonable expectations that he would have had this consent. The ‘true’ thwarted father thus has the moral right to continue in the parental project; but many genetic fathers who are deceived in the relevant sense did not have such a (moral) right on the liberty-based account. They might have initial rights to moral parenthood on other accounts, such as the proprietary geneticist approach put forward by Page (1985). This account requires no shared intentions, or active involvement in supporting the gestational mother – the biological tie and his ownership of his gametes is sufficient to establish his rights to the child at birth. But – and here I reiterate my reason for focusing on Richards’ account in this paper – Page’s account, as is the case with most accounts of moral parenthood, aims to establish the distribution of parental rights at the moment of a child’s birth. These accounts provide an answer to the question: what should we do when there are competing claims to begin parenting a child? However, they do not engage with the more particular issue that arises in thwarted father cases, where the genetic father’s rights-claim to begin parenting a child is presented in competition with the adoptive parents’ rights-claim to continue parenting that child.

A final objection might be made to the arguments I have laid out above, on the grounds that strong protections for the rights of genetic fathers – of a nature that would allow courts to terminate adoptions and reallocate custody to thwarted fathers – might be instrumentally justified. Even if the liberty argument does not, in all individual cases, strictly apply to the father (because he had not originally begun a parental project which he then had liberty to continue), one might argue that the liberty rights of biological parents in general are best protected by establishing generous principles in their favour. For example, as Page puts it, ‘if the right of natural parents to possess and raise their own children were seriously threatened, this would undermine the possibility of parenthood as the valued activity that it is’ (1984, 198). This argument might concede that there will be individual cases in which the child’s best interests would not be served by a transfer from their adoptive parents to the genetic father’s custody; but we already allow that the protection of parental liberty and autonomy will sometimes mean that children’s best interests are not optimally served, and may indeed be undermined.^[11] We could also, arguably, expect there to be fewer thwarted father cases to begin with if paternal claims to custody could not be thwarted by deception and secret adoption.

The problem with this line of argument is that it is not clear why, if we are appealing to an instrumental justification, the interests of one small subset of genetic fathers carries more weight than the interests of adoptive parents and adopted children in the security of their relationship. Further, the requirement that unmarried genetic fathers take at least some affirmative steps to ‘grasp’ parenthood of their children within a certain time window can also be justified on instrumental grounds. This justification can be made not only by reference to the needs of mothers and children for reasonable certainty in the father’s commitment, but also by appeal to the need to prevent what Oren (2006) describes as the ‘pop-up Pop’: the genetic father who asserts his rights out of spite, or to block a stepfather’s attempt to adopt the child they have been raising.

3.3 A Final Note: Parental Exclusivity

As noted in the introduction to this paper, the standard legal and social model of parenthood that predominates in Western societies is an exclusive one: parent–child relationships recognised and protected by law are quite strictly limited. I would argue that the clash of intuitions central to thwarted father cases is produced – or at least exacerbated – by the fact that this model of parenthood forces us into an ‘all or nothing’ prescription for the thwarted father. We ordinarily think that changes of custody and the termination of established parent–child relationships can only be justified by the best interests of the child. This means that any account of moral parenthood that would ordinarily grant parental rights to the unmarried genetic father must, in the case of the thwarted father, contend with a tension between the best interests principle and parental interests.^[12] The situation would be far easier to resolve if we did not have to make the thwarted father either a legal stranger to the child or her exclusive legal custodian.

Although there is not space in this paper to consider alternative frameworks, other scholars have criticised the exclusive parenthood model and have called for different social and legal approaches to protecting caring relationships between children and adults (Bartlett 1984; Brennan and Cameron 2015; Gheaus 2019). On such approaches, we can imagine ways in which the father’s desire to know his genetic progeny and be a part of her life could be protected alongside the established custodial relationship between that child and her adoptive parents. Gheaus, for example, argues that it is likely that ‘adults’ weighty interest in rearing children can be satisfied by establishing beneficial intimate and caring, though not globally authoritative, relationships with children, relationships which are protected from outside interference’ (2019, 455). In the end, there are many cases in which a child’s mother and stepparent have primary custody and the genetic father has a less involved parental role, albeit one which is legally protected (for example, through visitation rights). It is far from inconceivable that the thwarted father could have the same role in his child’s life even if her primary custodians are adoptive parents rather than her biological parents.