Nine Stories of Baby Ninths: Seven—A Baby Ninth and a Baby

Anthony Sanders · April 21, 2023

[This is the seventh in a series of nine posts on nine stories of how Baby Ninth Amendments made a difference in real cases. They’re part of the lead-up to the publication of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters]

The choice of whether to give up a child for adoption can be a heartrending one for parents. That’s particularly true if the parents disagree. And for various cultural and historical reasons it’s often a choice that is complicated for a father who is not married to the child’s mother. These fundamental issues came together in Louisiana in 1989 for a young mother, her parents, and the child’s father. The father fought for his right to raise the child and, after a trip to the Louisiana Supreme Court, won. One thing that made the difference was Louisiana’s Baby Ninth Amendment.

Family matters

Unenumerated rights are no stranger to family law. Going back to Meyer v. Nebraska and beyond, federal and state courts have frequently assessed whether the powers of the state to regulate family affairs go too far. In that famous case, the U.S. Supreme Court ruled that the Fourteenth Amendment’s Due Process Clause protected the right of teachers to educate children in a foreign language, and more broadly the right of parents to direct the upbringing of their children. (Watch the conference the Center for Judicial engagement recently held about Meyer here and a piece I wrote about Meyer’s 100th anniversary here.) Over the years since the Court has addressed family relations in many other ways, from divorce fees to zoning occupancy limits to grandparent visitation.

The same is true in state courts and state constitutions. After all, the vast majority of family law litigation arises in state court, whether run-of-the-mill or constitutional. And it was the constitutional variety that engulfed the first few months of the life of a baby girl, who we know as B.G.S.

You gotta see the baby

The story of her birth is fit for Hollywood, but it’s not a drama you’d want to be a part of. What we know comes from the Louisiana Supreme Court’s ruling on February 5, 1990, In re Adoption of B.G.S. (As often is true in family law cases, the court only provides initials of the characters involved.) Her mother was a sixteen-year-old girl, R.S., who already had a “strained relationship” with her parents. And then she got pregnant. V.L.—her nineteen-year-old boyfriend and the unborn child’s father—suggested marriage, but R.S. equivocated.

Eventually R.S.’s parents found out she was pregnant, when she was eight months along. They pressured the couple to give the child up for adoption. R.S. “acquiesced” to her parents but V.L. thought about it and then said he wanted to raise the child and objected to an adoption.

Even so, the parents took control of the situation—and their sixteen-year-old daughter—and put the wheels in motion for an adoption anyway. They told R.S.’s doctor of the plan and the doctor got in touch with “one of her infertile patients, who was interested in adoption, that R.S.’s baby might be available.” That patient and her husband then hired an attorney to ready a petition for a private adoption (an adoption directly from the birth mother to the adopting parents).

At the same time all this was going on, V.L. himself found a lawyer. He learned that in order to prevent the adoption he had to get his name as the father on the birth certificate.

Thus, the legal—and scrivenerial—stage was set and on August 8, 1989 R.S. went into labor. In what must have been an interesting car ride, both her mother and V.L. accompanied R.S. to the hospital. During labor V.L. asked someone at the hospital to put his name on the eventual birth certificate and that he didn’t want to give the child up for adoption. He also told R.S.’s mother, but she refused. Both of R.S.’s parents then ran interference so that V.L. could not see R.S. alone in the hospital and “for some time afterwards.”

R.S. gave birth to B.G.S. the same day. Her father then took charge of filling out the birth certificate and only put her name, not V.L.’s, down as a parent. R.S. later claimed she did not know she could have put V.L.’s name on it.

The very next day, August 9, 1989, V.L. swung into action. He filed an “authentic act of acknowledgment” in two local courts requesting that his name be placed on his daughter’s birth certificate. Meanwhile he was unable to see the baby “because of the hospital’s policy regarding babies that were scheduled to be adopted.”

Just a week later R.S. and her parents “executed an authentic act of surrender” and gave B.G.S up to the adoptive parents the doctor had found. At the same time V.L. checked with the relevant government office about scribing his name on the birth certificate and they handed him a form that needed R.S.’s signature. He was unable to meet with her, however, and on August 31 he filed a petition for habeas corpus in state trial court. Eventually, after repeated efforts he was able to “manage[] limited communications” with R.S. and then, on September 21, filed the “authentic act of acknowledgment” with R.S.’s signature, which then placed his name on the birth certificate. Of course, by that point B.G.S was with the adoptive couple.

The case moved forward and after some wrangling on all sides the trial court declared the relevant statute unconstitutional for preventing “an unwed father from placing his name on his child’s birth certificate without the mother’s consent.” And after further wrangling, and some interim instructions from the Louisiana Supreme Court, on November 17 the trial court awarded temporary custody to V.L. Meanwhile, on October 4, R.S. and V.L. were married.

Wisdom of Solomon?

Those who have studied the Biblical story of Solomon threatening to split the baby know the point of the story isn’t captured in the popular phrase we often use when referring to compromise. It’s that you can’t split a baby (and a deserving parent won’t allow it). Thus, when courts are faced with a situation like that of B.G.S. there often aren’t easy answers.

But when it ruled a few months later, the Louisiana Supreme Court did not find V.L.’s case particularly difficult. No one contested he was the father. He repeatedly told everyone he did not want to give his child up for adoption. He tried everything he legally could do to get his name on the birth certificate. And yet, his little girl was still given up. And the biggest legal barrier was his inability to get his name on the birth certificate without the mother’s signature.

The court examined the barriers V.L. faced through the prism of procedural due process. Yet, in order to assess his due process rights the justices first needed to determine what his constitutional liberty interest—as in life, liberty, or property without due process of law—was. For that they first turned to the Fourteenth Amendment and the body of cases stretching back to Meyer. They then made clear, however, that “there are additional reasons to conclude that [V.L.’s] liberty interest is also recognized as such by our state constitution.”

Unenumerated families

And for this they turned to Louisiana’s Baby Ninth Amendment. Article 1, Section 24 of the Louisiana Constitution states: “The enumeration in this constitution of certain rights shall not deny or disparage other rights retained by the individual citizens of the state.” Tying this provision together to their prior rulings involving the rights of parents the court declared that

both by recognizing the natural rights of parents to their children and by enforcing innominate fundamental rights of illegitimate children to inheritance and alimony against natural fathers or their descendants, we have implicitly recognized that the reciprocal rights and obligations of natural parents and children are among those unenumerated rights retained by individuals pursuant to [the Baby Ninth Amendment].

And, continued the court, V.L. could try to protect this right in the present case. Further, it went on to conclude that the state violated V.L.’s procedural due process rights when he was barred from seeking to prevent the adoption proceedings and asserting his right to raise his child.

The court then went on to outline what kind of process someone in V.L.’s situation should be due but at a minimum “it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate a protected interest, it must afford notice and an opportunity for hearing appropriate to the nature of the case before the termination becomes effective.” V.L., of course, was afforded no notice or opportunity under the system. The court thus ruled that the adoption proceedings were dismissed with prejudice, B.G.S. was the legitimate child of both V.L. and R.S. (thus reinstating R.S.’s rights as the mother, which she had asked for during the course of the case), and that the statutory scheme was unconstitutional as it relates to unwed fathers.

The court cautioned that not all unwed fathers would have the same liberty interest as V.L. Although not controlling, it did emphasize the fact that V.L. and R.S. had subsequently married. Most importantly, though, it was his persistence and determination that made the court’s decision not particularly Solomonic. A father who showed no interest for a newborn for some time might not fare so well.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.