THE US Supreme Court is considering whether to intervene in an adoption dispute and thereby tackle one of today's most sensitive legal issues: the rights of children and the power of the state over the family.
Legal experts disagree over whether a decision by the high court in the ''Baby Richard'' case would promote or impair justice for families and children.
Some say the case would help the state protect children both in adoption disputes and against cases of parental abuse and neglect. Others say it would set a precedent for harmful state intervention in the family.
In the case, Chicago resident Otakar Kirchner sued to block the 1991 adoption of his biological son after he decided he wanted to keep him. Illinois law requires that biological parents assert their parental rights within 30 days of a child's birth, but Mr. Kirchner says the mother, who was estranged from him at the time of the boy's birth, told him the boy had died.
Last June, the Illinois Supreme Court reversed the rulings of two lower courts and ordered the boy to Kirchner. The adoptive parents appealed to the United States Supreme Court, but in November it refused to take up the case, and the state Supreme Court reasserted its June decision. The three-year-old boy has never met Kirchner, though the biological father did recently get his first glimpse of the child in photographs.
Then last week, the US Supreme Court hinted that it might grant a delay requested by the adoptive parents and asked Kirchner's attorneys to explain by tomorrow why it should not do so.
Adoption-law experts say the US Supreme Court has an opportunity to forestall harm to children in adoption disputes by clarifying parental rights in such cases.
Some state courts have misconstrued the court's rulings, these experts say, and favored the rights of biological fathers at the expense of adopted children. If the court takes up the case, it may decide to protect children's interests in such conflicts by asserting for the first time that they enjoy the 14th Amendment right to due process.
The court can judge ''how much children's rights count compared to those of parents and how much should we define family and parenting based on biology or on social nurturing relationships,'' says Elizabeth Bartholet, a law professor at Harvard University in Cambridge, Mass.
But by asserting the rights of children in relation to parents, some experts say, the court would invite a rise in family litigation and state intrusion into family privacy.
''The cost of recognizing children's rights to due process would be protracted litigation that would exact costs on children,'' says Annette Appell, an attorney with the Northwestern University Legal Clinic in Chicago and former adviser to Kirchner. ''Anything that decreases the involvement of courts and litigation and lawyers in children's lives is better.''
The court might skirt the ''Baby Richard'' case and reject the request for a delay so as not to infringe on the state's traditional jurisdiction over family cases, the experts say. Indeed, US Supreme Court Justice John Paul Stevens acted alone on Jan. 28 and refused to delay the state court ruling.
But if the court spurns the case, it will allow ambiguity to continue to taint rulings over the rights of biological fathers in many states, some experts say.
The uncertain US Supreme Court stance on parental rights stems largely from Stanley v. Illinois of 1974. The court ruled that at the death of a mother the state could not deny a father his children because, although living apart, he had established a longstanding relationship with them.
The court thereby ''created a doctrine that says biology plus a long-established relationship gives you constitutionally protected rights and a lot of states have taken it too far,'' says Ms. Bartholet, author of ''Family Bonds: Adoption and the Politics of Parenting.''
The court now has ''an opportunity to, for the first time, address the issue squarely of whether children have any rights,'' says Carol Amadio, a child-welfare attorney at Loyola University in Chicago.
''The rights of children are overlooked constantly,'' she says. ''It is always father's rights or mother's rights or the state's rights that come first.''
But other experts say state governments could minimize intrusions on the family and more easily protect the interests of children by legislating strict guidelines for adoption. ''A clear-cut, expedited process would help discourage contested adoptions,'' says John McCabe of the National Conference of Commissioners on Uniform State Laws in Chicago.