(dissenting). I join Chief Justice Beilfuss’s dissenting opinion.1 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 *464to the facts in this case unconstitutionally discriminates against men based on their gender.2
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.3 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 *465the 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).4 Both Quil-loin 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 *466the 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)) ;
(8) 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 *467achievement of those objectives.’”5 The party seeking to uphold the statute carries “the burden of showing an ‘exceedingly persuasive justification’ for the classification.”6 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) (Abraham-son, 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 *468standard, 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 dis*469tinction 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 *470•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 provid*471ing 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.7
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 *472reasoning 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 regard*473ing 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; swpra, 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 bio*474logical 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.
I only add that the majority treats termination of parental rights like a punishment for a crime, thus increasing the legislatively prescribed penalties for commission of a crime by adding a new penalty, loss of a child. Slip op., pp. 13, 19. The purpose of termination should be to place children permanently in accordance with their best interests, not to punish a parent. I would hold that the penalty of termination of parental rights for the commission of a crime is per se cruel and unusual punishment in violation of the United States Constitution, amends. VIII, XIV and the Wisconsin Constitution, art I, sec. 6.
Under this reasoning it is not necessary to reach any of the other issues presented in this case. A court can terminate parental rights involuntarily if one of the grounds for termination under sec. 48.415 is proved in a fact-finding hearing. Sec. 48.42(1) (c)2, Stats. 1981-82. See also In the Interest of DLS, 112 Wis. 2d 180, 186, 332 N.W.2d 293 (1983). Only after the court finds that a statutory ground for termination of parental rights exists does the court reach the question of whether the parent whose rights are to be terminated is unfit. In this case the statutory ground set forth in the petition and argued at trial was the father’s failure to assume parental responsibility. Sec. 48.415(6) (a)2. If the statutory ground is void because it violates the constitutions of this state and of the United States, the trial court could not involuntarily terminate the father’s parental rights in this case, regardless of whether he was unfit as a parent. See pp. 447, 448.
I find some of the majority’s sociological observations questionable, but because they are only tangentially relevant to the legal issues presented in this case I do not discuss them.
I question the majority’s haste to conclude that Lehr v. Robertson makes superfluous any due process protections accorded by this state’s statutes or constitution. The Supreme Court decided Lehr v. Robertson four days ago. This court has had only parts of two days to reflect on that case and the differences between the New York statutes involved in Lehr and the Wisconsin statutes. I would have preferred to give the parties and the state an opportunity to submit briefs on the possible impact of Lehr on the issues presented in this case to enable this court to give Lehr the considered reflection it deserves. Because the maj'ority considers Lehr, I, too, reluctantly consider it.
Mississippi University for Women v. Hogan, - U.S. - , 50 L.W. 5068, 5070 (1982), quoting from Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142, 150 (1980). See also Lehr v. Robertson, - U.S. - slip op., pp. 17-18 (June 27, 1983); Craig v. Boren, 429 U.S. 190, 197 (1976); Caban v. Mohammed, 441 U.S. 380, 388 (1979).
Mississippi University for Women v. Hogan, U.S. , 50 L.W. 5068, 5070 (1982), quoting Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273 (1979).
See Castello, Getting Ready for Parenthood: A Manual for Expectant Mothers and Fathers, pp. 45-50 (1957); Hess and Hunt, Pickles and Ice Cream, The Complete Guide to Nutrition During Pregnancy (1982) passim; NIOSH, Guidelines on Pregnancy and Work (1977) passim; Russell, Eastman’s Expectant Motherhood 48-87 (6th ed., 1977); Verrilli and Mueser, While Waiting: A Prenatal Guidebook, 25-46 (1982).