BEILFUSS, C.J. (dissenting).

The majority affirms the trial court's termination of B.B.'s parental rights, holding that the statutory grounds for involuntary termination were met and that due process does not require a finding of parental unfitness before termination. Because the record before this court does not support the holding that the statutory grounds were met, and because I believe due process requires a finding of unfitness before B.B.'s rights can be terminated, I dissent.

The majority glosses over the nature of the interest at stake in an involuntary termination hearing. Therefore I must start with an examination of the nature of B.B.'s rights which must be accorded before termination. The relationship between parent and child is protected by the Due Process Clauses of the state and federal constitutions. Quilloin v. Walcott, 434 U.S. 246, 255 (1978); In Interest of J.L.W., 102 Wis.2d 118, 136, 306 N.W.2d 46 (1981). Both this court and the United States Supreme Court have consistently recognized the firmly established principle that natural parents have a fundamental liberty interest in the care, custody and management of their children. Santosky v. Kramer, 455 U.S. 745 (1982), and cases cited therein; In Interest of D.L.S., 112 Wis.2d 180, 332 N.W.2d 293 (1983); Termination of Parental Rights of T.R.M., 100 Wis.2d 681, 303 N.W.2d 581 (1981). The right to conceive and raise one's own child has been described as essential, one of our basic civil rights and more precious than property rights. Stanley v. Illinois, 405 U.S. 645, 651 (1972).

The fundamental nature of this right is not affected by the fact that the child was born without the benefit of a marriage ceremony between the parents. The United States Supreme Court in recent decisions has made it clear that the parental rights of putative fathers are also entitled to constitutional protection. Caban v. Mohammed, 441 U.S. 380 (1979); Quilloin v. Walcott, 434 U.S. 246 (1978); Stanley v. Illinois, 405 U.S. 645 (1972). While the United States Supreme Court has recently indicated that unwed fathers who have an opportunity to develop a parental relationship and fail to do so may not always be entitled to the same due process protections as other parents, Lehr v. Robertson, ___ U.S. ___ (June 27, 1983), this court has expressly recognized "that the bond of nature between a parent and a child born out of wedlock should not be less protected by the law `simply because her natural father has not married her mother.'" State ex rel. Lewis v. Lutheran Social Services, 59 Wis.2d 1, 12, 207 N.W.2d 826 (1973), quoting Gomez v. Perez, 409 U.S. 535 (1973), (emphasis supplied). Further, in In Interest of J.L.W., 102 Wis.2d 118, 306 N.W.2d 46 (1981), this court recognized that the parental rights of unmarried parents are entitled to protection under the due process clause of the state constitution. Thus I believe that B.B. has a fundamental parental right as to his daughter, Baby Girl K.

This fundamental right to raise one's own child is not absolute, but is qualified by the parens patriae power of the state to protect the best interests of children, which in some circumstances requires termination of parental rights. But because the termination of parental rights "implicates the fundamental rights of a parent" such rights "must be accorded a high order of respect and must be considered paramount until circumstances show that the parent has forfeited these rights." Termination of Parental Rights to T.R.M., 100 Wis.2d at 689. Therefore the procedure that must be followed in terminating parental rights is necessarily rigorous.

The procedure in Wisconsin for involuntarily terminating is threefold: the statutory grounds must be satisfied, sec. 48.415; except in unusual circumstances the parent must be found unfit; and the termination must be in the child's best interests. In Interest of J.L.W., 102 Wis.2d 118, 306 N.W.2d 46 (1981). Further, as recognized by the majority, due process and Wisconsin statutes require that the party seeking termination show by clear and convincing evidence that termination is appropriate. Sec. 48.31, Stats. 1979-80; Santosky v. Kramer, 455 U.S. 745 (1982).

My review of the record leads me to the conclusion that neither the statutory grounds nor the requirement of unfitness were satisfied. I address first the majority's holding that the statutory grounds for termination were met. Sec. 48.415(6)(a)2, Stats., allows for termination of an unwed father's parental rights if he does not establish a "substantial parental relationship" with his child prior to adjudication of paternity. This statute explicitly directs considerations of the father's conduct toward both the mother and the child from conception through the paternity determination.

Contrary to the language of the statute, the majority relies solely on B.B.'s actions during L.K.'s pregnancy to affirm the trial court's finding that the statutory grounds were met and ignores his conduct during the nine months between Baby Girl K.'s birth and the adjudication of paternity. Even assuming that B.B.'s conduct during L.K.'s pregnancy showed a complete disregard for the health and welfare of the unborn child and the mother (which the record does not support), there is evidence in the record that immediately after Baby Girl K.'s birth B.B. consistently demonstrated, through the legal process and correspondence with the trial court, foster parents and Marathon County Department of Social Services, his interest and concern for his daughter and his desire to raise her after his release from criminal confinement. The majority completely ignores the first nine months of Baby Girl K.'s life, and relies solely on the nine months of pregnancy. This is an erroneous and unconstitutional application of sec. 48.415(6)(a)2, Stats. Clearly B.B.'s conduct during Baby Girl K.'s life is at least equally important to the determination of whether he established a parental relationship with his daughter as the gestation period.

Rather, the correct application of the statute is to examine B.B.'s conduct from the time he learned of the pregnancy to the time he was adjudicated (here by his own motion) Baby Girl K.'s father. A review of the entire record in this light leads to the conclusion that the trial court's finding that B.B. failed to establish a substantial parental relationship was "clearly erroneous." Sec. 805.17(2), Stats.

The review of the record before the court is somewhat complicated by the fact that there is evidence in the record as a whole relating to the issue of establishment of a "substantial parental relationship" which was not presented at the termination hearing nor considered by the trial judge. I began with an examination of the evidence presented at the termination hearing. There was undisputed evidence that the father did not contribute to the expenses of the pregnancy that arose before he was incarcerated, although he had the funds to do so. It is also undisputed that on one occasion B.B. physically assaulted L.K. while she was pregnant. Finally, it is undisputed that on two occasions B.B., in disregard of L.K.'s welfare, asked L.K. to smuggle marijuana into the prison. All this evidence militates toward a finding that B.B. was not concerned for the welfare of either the mother or baby.

However, other testimony of the mother shows that B.B. did have a concern for both her and Baby Girl K., both during and after the pregnancy. The evidence demonstrates that B.B. was "happy" when he learned of the pregnancy, intended to marry the mother, and spent "every day" with the mother until his incarceration. Her testimony established that during the pregnancy he did pay her dental expenses and that following his incarceration she wrote to B.B. telling him not to worry about the expenses of her pregnancy. Finally, the evidence introduced at the hearing indicates that following his incarceration B.B. repeatedly informed L.K., through letters and telephone conversations, that he was willing to provide for both the mother and the child by the placement in his mother's home until he was released. B.B. presented evidence that made his interest in the child known by filing a Declaration of Parental Interest.

If this was the extent of the evidence in the record relating to whether B.B. had shown parental interest, it would be a much closer question whether the trial court's finding should be upheld based on the trial judge's ability to view the witnesses and assess credibility. However, there is other information in the record of the trial court as presented to the court which bears directly on the issue of B.B.'s attempts to assume parental responsibility for Baby Girl K. under the terms of sec. 48.415(6) (a) 2, Stats.

There are references in the record to the fact that since the child's birth B.B. wrote to the foster parents, the trial judge and the Department which had legal custody of Baby Girl K., requesting photographs and information on the child's placement and welfare, and expressing his intent to have the child placed with his mother's family until he was released and could care for the child himself. The record demonstrates that on one occasion the trial judge explicitly rejected B.B.'s attempts to communicate with his daughter, stating that such action was premature until paternity was established. Further, when the record is looked at as a whole, it is clear that consistently since the child's birth the father had attempted through the legal process to demonstrate his interest in and concern for the child and his intent to provide for the child. In light of B.B.'s limited opportunity and ability to personally provide care and support for Baby Girl K. following his incarceration (five months into the pregnancy) and the fundamental nature of the right at issue, I find the information in the record of B.B.'s attempts through the legal process and correspondence to assert his interest in his child to be especially important.

This information was in the record before the trial court when it made its determination that parental rights should be terminated, but the record demonstrates that the trial court did not consider this evidence. Rather, the trial court, in its findings of fact, explicitly found that B.B. "failed to present evidence of any attempts on his part to establish a parental relationship with Baby Girl K. such as attempts to contact said child, write to persons caring for said child or to send the child cards or gifts." The entire record before this court simply does not support this finding. The majority perpetuates the trial court's error by also ignoring this very relevant and important evidence.

On the basis of the entire record before this court and the trial court, I believe that the trial court's finding that the statutory grounds for involuntary termination were met to be unsupported by the record. However, because of the nature of the evidence in the record, I would remand the action for a new hearing on this issue rather than simply finding that the statutory grounds were not met. Some of the evidence of B.B.'s attempts to contact the child consists of references to letters which. are not in the record and their actual content is unknown. Further, some of the evidence that is actually contained in the record may not have been properly before the trial court. Finally, I believe that the trial court is in a better position to assess the credibility of such evidence and witnesses. This is especially important in this case because L.K. and the guardian ad litem state that B.B.'s concern for the child is motivated solely by his desire to effect a reconciliation with the mother. B.B. denies any such motivation and there is some evidence in the record showing that his interest is genuine, see n. 2, supra. This court is simply not in a position to make an informed decision on this issue which involves a credibility determination. For these reasons I believe this issue should be retried under authority granted to this court by sec. 751.06, Stats.

The majority also holds that due process does not require a finding that B.B. is an unfit parent before his parental rights can be terminated. I disagree. The majority relies on the recent United States Supreme Court decision in Lehr v. Robertson, ___ U.S. ___ (June 27, 1983), to support this position. I believe their reliance on the Lehr decision is misplaced.

First, the court in Lehr was addressing the limited issue of whether the New York statutory scheme adequately protected the putative father's opportunity to form a parental relationship with his child, such that he would then be entitled to notice of adoption proceedings. Lehr, ___ U.S. ___, slip. op., p. 14. The New York statutory scheme under review in Lehr has absolutely no similarity to sec. 48.415(6)(a)2, Stats., and thus Lehr at best has only very limited applicability to the instant case.

Second I read Lehr to fall into the holding of Quilloin v. Walcott, 434 U.S. 246 (1978) as interpreted by this court in In Interest of J.L.W., 102 Wis.2d 118, 306 N.W.2d 46 (1981). In J.L.W. the court held that "except under unusual circumstances like those presented in Quilloin, the due process protections of the state and federal constitutions prohibit the termination of a natural parent's rights, unless a parent is unfit." 102 Wis.2d at 136. The unusual circumstances in Quilloin which allowed the court to terminate parental rights without a finding of unfitness are as follows: an unwed father attempted to block the adoption of his son by the natural mother and her husband when the child was eleven years old and had been in the mother's custody his entire life. The father never had custody and was not seeking custody but wanted to block the adoption which would terminate his parental rights. The Court rejected the father's argument that he was denied due process, stating:

"We have little doubt that the Due Process Clause would be offended `[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest.' Smith v. Organization of Foster Families, 431 U.S. 816, 862-863 (1977) (STEWART, J., concurring in judgment). But this is not a case in which the unwed father at any time had, or sought, actual or legal custody of his child. Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the `best interests of the child.'" 434 U.S. at 255.

Similarly, in Lehr, the putative father "never had any significant custodial, personal or financial relationship (with his child), and he did not seek to establish a legal tie until after she was two years old." Lehr, ___ U.S. ___, slip op., p. 14. Also, as in Quilloin, the father was attempting to block the adoption by the natural mother who had had custody since birth.

The facts in this case are clearly distinguishable from those in Quilloin and Lehr. This is not a situation as in Quilloin and Lehr where the natural parent displayed almost no interest in the child for its entire life although well aware of the fact of parenthood and able to provide and care for the child. Here B.B. has indicated interest and concern for the child since he learned of her conception and has since shortly after birth requested custody. Further, B.B. is not attempting to block the adoption of Baby Girl K. by the natural mother or into an established family unit as in Quilloin and Lehr. In this case the natural mother, three days after the birth, released custody of Baby Girl K. to the Marathon County Department of Social Services. Here there are no adoptive parents nor adoption proceedings pending. Nor could there be until B.B.'s parental rights are terminated. Thus we find that the narrow "unusual circumstances" exception recognized in J.L.W. does not apply and due process requires that B.B. be found unfit before his rights can be terminated. As discussed above, the record simply does not support the finding of the majority that B.B. failed to establish a substantial parental relationship. He is therefore entitled to a finding of unfitness before his parental rights can be terminated. Stanley v. Illinois, 405 U.S. 645 (1972).

Further, contrary to the holding of the court of appeals, this court can not find that B.B. is an unfit parent as a matter of law based on the record before this court. Initially, there is an insurmountable constitutional obstacle to the court making such a finding based on this record — the Due Process Clauses of the state and federal constitutions. It is beyond dispute that due process demands adequate notice and an opportunity to be heard when a person is threatened with termination of a fundamental liberty interest. B.B. was never accorded this constitutionally mandated hearing and thus his parental rights can not be terminated by this court. The record clearly demonstrates that B.B. was never notified that the petitioner was attempting to prove he was an unfit parent. Further, the record shows that the issue was never litigated in the termination hearing, nor even considered by either the trial court or the petitioner. The issue before the trial court at this hearing, and all the evidence presented, was directed solely to the question of whether the statutory grounds for involuntary termination were met. Thus, on this basis alone, the majority's termination of B.B.'s parental rights unquestionably violates due process and should not be sustained.

Further, even without this constitutional impediment, the record is insufficient to support the court of appeals holding that as a matter of law B.B. is an unfit parent. The evidence required to support a finding of parental unfitness must be very substantial:

"The standards for a finding of unfitness in Wisconsin have long deferred, as much as possible, to parental rights. When unfitness is found, however, it must be based upon most substantial grounds. The standards for unfitness have long been stringent. To support a finding of unfitness,

"`it must appear that the [parent] has "so conducted himself, or shown himself to be a person of such description, or is placed in such a position, as to render it not merely better for the children, but essential to their safety or to their welfare, in some very serious and important respect, that his rights should be treated as lost or suspended, — should be superseded or interfered with" [Emphasis added.]'

Lemmin v. Lorfeld, 107 Wis. 264, 266, 83 N.W. 359, 360 (1900). It is evident, then, that a finding of unfitness is a determination that further contact between parent and child will be seriously detrimental to the child." Termination of Parental Right to A.M.K., 105 Wis.2d 91, 102, 312 N.W.2d 840 (Ct.App. 1981).

The record simply does not support a finding that as a matter of law it is essential for Baby Girl K.'s safety or welfare that B.B.'s parental rights be terminated.

The court of appeals, in holding that a finding of unfitness was "clearly sustained by the record," stated:

"The trial court found that prior to his incarceration, B.B. had funds available to provide care and support for L.K. but failed to do so. The court also considered the incident of physical violence by B.B. toward the mother during her pregnancy and the fact that he requested that she smuggle marijuana into the prison for him twice during her pregnancy. At the very least, B.B.'s conduct demonstrates a complete indifference to the welfare of the child. The court also found that although B.B. was interested in the child, he failed to carry through with actions that would establish a substantial parental relationship."

The court of appeal's reference to the failure of B.B. to support L.K. and establish a substantial parental relationship can not be considered by this court in determining unfitness because the trial court's finding that that statutory grounds were met was not supported by the record. Further, I conclude that evidence of one isolated physical assault on the mother and two requests for marijuana while in prison do not as a matter of law make B.B. an unfit parent by clear and convincing evidence.

The only other evidence in the record that goes to unfitness is the fact that B.B. is now incarcerated for a burglary conviction, has a criminal record, and according to L.K.'s testimony, B.B. "dealt in drugs" and "robbed places." While all this evidence clearly is relevant to the issue of fitness, there are no facts in the record detailing any of this evidence. All the record contains is the bare facts stated above. Without an examination into the details of B.B.'s actions, a finding of unfitness is not supportable.

This court cannot, based on this inadequate record, make the far-reaching finding of unfitness which leads to the irrevocable termination of parental rights. As stated by this court in Termination of Parental Rights to T.R.M., 100 Wis.2d at 689: "An examination of a record seldom is adequate to make the necessary factual determinations that are a part of this type of controversy." I would also remand the action to the trial court to conduct a hearing on B.B.'s fitness as a parent.

I therefore dissent.

I am authorized to state that JUSTICES HEFFERNAN and ABRAHAMSON join in this dissent.

SHIRLEY S. ABRAHAMSON, J. (dissenting).

I join Chief Justice Beilfuss's dissenting opinion. I write separately to add that I disagree with the majority's conclusion that sec. 48.415(6)(a)2, Stats. 1981-82, does not violate the equal protection clauses of the Wisconsin and the United States constitutions.

Everyone agrees that sec. 48.415(6)(a)2 treats unmarried parents differently according to their gender. Sec. 48.415(6)(a)2 establishes grounds for terminating the unwed father's parental rights, not the mother's. I conclude that the statute on its face and as applied to the facts in this case unconstitutionally discriminates against men based on their gender.

Both this court and the United States Supreme Court are struggling with the difficult issue of defining the constitutional rights of parents and children. Judges and lawyers, like the general public, are parents and are not insulated from the highly personal and sometimes emotionally charged nature of the issues presented in these cases. In this case we are specifically concerned about the due process and equal protection rights of unwed parents. The Supreme Court first indicated its recognition that unwed fathers have constitutional rights just eleven years ago in Stanley v. Illinois, 405 U.S. 645 (1972). Stanley raised more questions than it answered, leaving at least four major legal issues unresolved: whether the constitutional rights of unwed fathers are based on concepts of procedural or substantive due process or both; whether all unwed fathers have constitutional rights or whether only unwed fathers who have expressed an undefined amount of interest in the child are to be accorded constitutional protection; whether the constitutional rights of unwed fathers are different depending on the type of proceedings, for example, adoption and termination of parental rights as opposed to custody; and whether equal protection concerns are addressed to distinctions between married and unmarried parents or between male and female parents.

Since Stanley, the Supreme Court has had few occasions to examine the extent to which a natural father's biological relationship with his illegitimate child is accorded constitutional protection. See Quilloin v. Walcott, 434 U.S. 246 (1978), Caban v. Mohammed, 441 U.S. 380 (1979), and, decided just four days ago, Lehr v. Robertson, ___ U.S. ___ (June 27, 1983). Both Quilloin and Lehr appear to address the due-process issue as applied to a particular case; Caban addressed the gender discrimination issue.

State legislatures, too, have wrestled with the problem of striking a balance between according rights to parents and ensuring that terminations are handled quickly and efficiently so that adoptions can proceed. See secs. 48.40 et seq., Stats. 1981-82. Recognizing these areas of law as troublesome and ill-defined, I turn to a consideration of one aspect of the statute's constitutionality.

Sec. 48.415(6)(a)2 provides that one of the grounds for termination of a father's parental rights shall be the father's failure to assume parental responsibility. According to the statute, failure to assume parental responsibility may be established by showing the following:

(1) the child was born out of wedlock and is not legitimated or adopted (48.415(6)(a));

(2) paternity was not adjudicated prior to the petition for termination of parental rights (48.415(6)(a));

(3) the father did not establish a substantial parental relationship with the child prior to the adjudication of paternity although the father had reason to believe that he was the father of the child and had an opportunity to establish a substantial parental relationship with the child (48.415(6)(a)2).

Sec. 48.415(6)(b) defines the phrase "substantial parental relationship" as meaning the acceptance and exercise of significant responsibility for the daily supervision, education, protection, and care of the child. It sets forth the following factors which the court may consider in evaluating whether a substantial parental relationship is established: "whether the person has ever expressed concern for or interest in the support, care or well-being of the child or the mother during her pregnancy and whether the person has neglected or refused to provide care or support even though the person had the opportunity and ability to do so."

The issue is whether this gender-based distinction, allowing the termination of a father's, but not a mother's, parental rights based on failure to assume parental responsibility violates the equal protection guarantees of the federal or state constitution.

A gender-based distinction can satisfy the equal protection guarantees of the United States Constitution if the statute "at least . . . serves `important governmental objectives and [is] . . . substantially related to achievement of those objectives.'" The party seeking to uphold the statute carries "the burden of showing an `exceedingly persuasive justification' for the classification." The constitutionality of any gender-based distinction must be examined "free of fixed notions concerning the roles and abilities of males and females," and free of "archaic and stereotypic notions" about the roles of men and women. Mississippi University for Women v. Hogan, ___ U.S. ___, 50 L.W. 5068, 5070 (1982).

This test for determining whether a gender-based distinction is constitutional has been termed the "intermediate level" scrutiny test. I, of course, accept this test for federal constitutional purposes, but for Wisconsin state constitutional purposes, I continue to adhere to the view that because gender-based classifications are inherently suspect, the "strict scrutiny" test is more appropriate. Marshfield Clinic v. Discher, 105 Wis.2d 506, note 8 at 524, 314 N.W.2d 326 (1982) (Abrahamson, J., dissenting). I continue to believe that any classification based on immutable personal characteristics is "suspect" and that gender is obviously an immutable personal characteristic. Gender is a "visible characteristic determined by causes not within the control of the individual. It bears no relation to ability to contribute to or participate in society." Hewitt v. Saif, 294 Or. 33, 653 P.2d 970, 977 (1982). I do not believe it is necessary to analyze this statute according to a strict scrutiny standard, however, because this statute can not withstand the lesser intermediate level of scrutiny.

I conclude that the statute on its face and as applied is unconstitutional under the state and federal constitutions because the means used to achieve the government's objectives are not "substantially related to the achievement of those objectives." I first consider whether the statute on its face is unconstitutional.

The statute is designed to achieve the important governmental objectives of promoting the best interests of the child, protecting the rights of interested third parties, and ensuring promptness in and finality of the termination of parental rights to facilitate the child's adoption. I agree that these objectives are legitimate and important. Lehr v. Robertson, ___ U.S. ___, slip op., p. 18 (June 27, 1983); In the Interest of DLS, 112 Wis.2d 180, 187, 332 N.W.2d 293 (1983). Like its interest in voluntary termination proceedings, the state also has an interest in involuntary termination proceedings to ensure that the termination of parental rights is just. In the Interest of DLS, 112 Wis.2d 180, 185, 332 N.W.2d 293 (1983).

The statute can only be upheld, though, if the gender-based distinction in sec. 48.415(6)(a)2 "is structured reasonably to further these ends," Caban v. Mohammed, 441 U.S. 380, 391 (1979).

While I agree with the majority that the failure of a parent to develop a substantial parental relationship with the child is a proper ground for the involuntary termination of parental rights, see Lehr v. Robertson, ___ U.S. ___, slip op. p. 12, that truth is not sufficient to enable the statute to withstand constitutional attack. The state must still answer the question of why the statutory criterion applies to male parents but not to female parents.

There appear to be three justifications for this gender-based distinction. First, it may be argued that the distinction is justified because one automatically knows the identity of the mother, but the father is neither known nor accessible. In this case, and in all cases in which sec. 48.415(6)(a)2 applies, that basis for distinguishing between an unwed mother and an unwed father is irrelevant because the substantial parental relationship criterion is applicable only after the putative father has been notified of the termination proceedings, has appeared, and his paternity has been adjudicated. The legislature has already provided a means to terminate the parental rights of a father who cannot be identified or found. Sec. 48.415(6)(a)1.

The second possible justification for the gender-based distinction concerns the differences between the parents during the child's gestation period. The majority justifies the gender-based statute on the basis of the biological distinction between men and women concerning a child's gestation, just as it relies primarily on the father's actions during pregnancy to affirm the trial court's findings that the evidence fulfilled the statutory termination grounds (see Beilfuss, C.J, dissenting, supra, p. 453). Because women can become pregnant and physically can carry children within their bodies, but men cannot, reasons the majority, the gender-based distinction is justified.

I do not dispute the fact that there are biological differences between men and women. But I do not agree that these biological differences are sufficient justifications for this gender-based statute. The United States Supreme Court has recently strenuously emphasized that a parent's "mere biological relationship" with a child is not accorded constitutional protection. Lehr v. Robertson, ___ U.S. ___, slip op, pp. 11-12 (June 27, 1983). "Parental rights do not spring full-blown from the biological connection between parent and child. They require relationships more enduring." Id., at ___, slip op., p. 11, quoting with approval from Caban v. Mohammed, supra, 441 U.S. at 397 (Stewart, J., dissenting), quoted with approval in the majority opinion, supra, pp. 445, 446. In Lehr, the Court distinguished between "a mere biological relationship and an actual relationship of parental responsibility" created by the parent's role in the child's life. Lehr at ___, slip op., p. 12, and p. 13, n. 17. The Court in Lehr considered only the role of a biological father, because only that issue was before it, but the same reasoning applies to a biological mother. This reasoning undermines the very premise of the majority's holding that the mere biological differences between the father and mother, that is, insemination versus pregnancy, justify a gender-based distinction as to grounds for termination of parental rights.

Even if the biological difference between man and woman can be considered as the basis for establishing different grounds for termination of the father's and mother's parental rights, the reasons based on biological differences pointed out by the majority as support for the gender-based distinction do not withstand scrutiny. According to the majority, a man, unlike a woman, has the choice whether to care for the unborn child by caring for the pregnant woman and should forfeit parental rights to the child if he does not fulfill his parental responsibility to the unborn child by taking care of the mother. The majority asserts that, as a matter of nature, "biology dictates that [the mother] provide care and support for a child during pregnancy [by taking care of herself]." Supra, p. 450. The mother, as the carrier of the child, cannot, says the majority, choose not to accept and exercise significant responsibility for the care and protection of the child during pregnancy. The majority asserts that the woman's only option other than to exercise responsibility is to abort the pregnancy. Supra, p 442. The majority is, I suggest, mistaken about a woman's role during pregnancy.

Biology dictates only that a woman carry a child. It does not dictate that she show responsibility by providing proper care for herself (and thus the unborn child) or even that she love the child. The mother has control over prenatal care which, as the majority recognizes, is "important to the eventual health and well-being of an infant." Supra, p. 439 and n. 6. A woman can disregard the care and protection of the child during pregnancy by ignoring the importance of proper nutrition, medical care, and exercise, by smoking or ingesting dangerous drugs, by overuse of caffeine and alcohol, by gaining too much or too little weight, by exposing herself to hazardous environmental elements, or by subjecting herself to stress. A woman's support and care of an unborn child are voluntary and important.

The mother, who fails to take care of herself, as well as the father, who fails to take care of the pregnant woman, fails to fulfill parental responsibilities to the unborn child. If the failure to fulfill parental responsibilities to the unborn child is a ground for terminating the father's rights, the majority gives no reason why it should not be a ground for terminating the mother's rights. Since the mother's role during pregnancy is generally more important than the father's, according to the majority's reasoning, it would appear that there is even more justification to terminate the mother's parental rights for failing to assume responsibility to the unborn child than the father's.

The third possible justification to gender-based distinction concerns the differences between the parents after the birth of the child. Although the statute requires the court to look at the relationship of the unwed father to the child after the child's birth, the majority confines its reasoning justifying the gender-based distinction to the gestation period or at most immediately following gestation, supra, p. 449, because even it appears to recognize that the biological differences between unwed fathers and mothers cannot justify different treatment as to their voluntary failure to assume responsibility for the child after the child's birth.

Recognizing this fact, the majority, relying on Justice Stevens's dissenting opinion in Caban v. Mohammed, 441 U.S. 380, 389 (1979), concludes that the differences between unwed mothers as a class and unwed fathers might form a basis for a valid gender-based distinction regarding adoption proceedings where newborn infants are concerned. ( Supra, p. 449.) The Caban majority did not decide this issue, and the Court specifically concluded that even assuming a difference between the closeness of unwed mothers and unwed fathers to the child based on their relationship to the child during pregnancy and immediately afterward, this generalized difference would not constitutionally support a gender-based distinction for purposes of adoption, and it "would become less acceptable as a basis for legislative distinctions as the age of the child increased." Caban v. Mohammed, supra, 441 U.S. at 388-89. Caban's analysis of equal protection and gender-based adoption laws was not overruled in or modified by Lehr. Here the child is nine months old, and the majority's reasoning is inadequate.

Because none of the proposed justifications for the statute can withstand analysis, I conclude that the statute's gender-based distinctions are not substantially related to the governmental objectives and that the statute is unconstitutional on its face.

Even if this statute were held constitutional on its face, it is clearly unconstitutional as applied in this case. As Justice Stevens explained in Lehr v. Robertson, ___ U.S. ___, slip op., at p. 19 (June 27, 1983), a statute granting different rights to a mother and father regarding termination of their parental rights may not constitutionally be applied in those cases where the mother and father are in fact similarly situated with regard to their relationship with the child. The majority has generalized that the mother is naturally closer to her child and has the natural obligation to raise the child. In this case, though, the mother's relation to the child during pregnancy was not explored, but we do know that the mother voluntarily decided not to raise the child, placing the child outside her home within three days after its birth, for reasons that may very well stem from her love for the child and her desire to allow it to be adopted. The trial court found as a fact that the "child had no relationship with either parent . . . ." (emphasis added; supra, p. 437). Accepting this finding of the circuit court, I must conclude that the mother and father in this case are similarly situated as to the child. Nonetheless, the statute treats the two parents differently, for no apparent reason. If this mother refused to terminate her parental rights voluntarily, involuntary termination proceedings could not be instituted against her on the ground that she failed to establish a substantial parental relationship with the child because the statute does not apply to the unwed mother. When one takes into consideration the father's actual efforts to establish a relationship with the child by initiating paternity proceedings one month after the child's birth and his expressing constant interest in the child, it is ironic that he, but not the mother, can have parental rights involuntarily terminated on this ground and without a finding of unfitness. According to Lehr, this statute is unconstitutional as applied in this case.

I conclude that the statute systematically harms men by assuming that even those unwed fathers who come forth after a child's birth, assert and adjudicate their paternity, and make reasonable efforts under the circumstances of the case to maintain parental ties with their children are to be treated differently from the biological mother regardless of her parental relationship with this child. This type of systematic harm to men can only "be explained . . . as the product of habit, rather than analysis or reflection," and cannot withstand constitutional scrutiny. Lehr v. Robertson, ___ U.S. ___ (slip op., p. 17, n. 24, June 27, 1983). Sec. 48.415(6)(a)2 subjects men and women to disparate treatment when there is no substantial relation between the disparity and an important state purpose. Lehr v. Robertson, ___ U.S. ___ (slip op., pp. 17-18, June 27, 1983). Accordingly, I would hold that this statute violates the equal protection clauses of the United States and the Wisconsin Constitutions. I dissent.

I am authorized to state that JUSTICE NATHAN S. HEFFERNAN joins in this dissent.