(concurring specially).
I agree with the result reached by the majority but concur specially out of concern that the majority’s opinion goes further than required by Stanley. The danger lies in an over-extension of Stanley and a lemming-like march to the social disaster lurking in that decision’s dicta.
It is now apparent some of the sweeping language in Stanley was written without benefit of either proper presentation of countervailing state interests or other individual constitutional interests, e. g., the importance of legally secure adoptions, invasions of constitutional right to privacy of unwed mothers and their children resulting from third-party service of revealing notices and “to-whom-it-may-concern” published notices, need for anonymity between natural and adoptive parents, emotional trauma to unwed mothers caused by litigation and uncertainty, detrimental psycho*550logical effects on illegitimate children flowing from changes in environment and delayed permanent placements, the prospective (and now reported) congestion of foster care facilities by children once thought legally free for adoption, the danger of illegitimate children becoming pawns in contests for A.D.C. payments, and the probability of blackmail and extortion by an unknown number of conscienceless unwed fathers. See Comment, 59 Va.L.Rev. 517 (1973).
That such dicta is seldom carved in stone is now demonstrated in the sudden concern evidenced by the United States Supreme Court in Rothstein v. Lutheran Social Services, 405 U.S. 1051,92 S.Ct. 1488, 31 L.Ed.2d 786 (1972) (vacating judgment and remanding in State v. Lutheran Social Services, 47 Wis.2d 420, 178 N.W.2d 56 [1970]) that the case should be reconsidered in light of Stanley but “with due consideration for the completion of the adoption proceedings and the fact that the child has apparently lived with the adoptive family for the intervening period of time.” The Wisconsin court, accepting the invitation, held after remand on final appeal the “putative” father had abandoned the child before its birth. State ex rel. Lewis v. Lutheran Social Services, 68 Wis.2d 36, 227 N.W.2d 643 (1975).
Regardless of the permissible interpretation of Stanley that it resulted from a facial attack on the Illinois statutes and not an attack on the statute as applied, it is obvious the unique factual setting — an unwed parent with custody and furnishing support — motivated the majority decision. The first two sentences of the opinion demonstrate the court’s preoccupation with the factual posture of the case. And in the final analysis, the interest protected in Stanley was “The private interest * * * of a man in the children he has sired and raised * * 405 U.S. at 651, 92 S.Ct. at 1212, 31 L.Ed.2d at 558. (Emphasis supplied.)
Stripped of its non-essentials, Stanley simply proscribed a statutory conclusive presumption that an unwed father was unfit to rear his progeny so as to deprive him of children in his custody without notice and hearing.
I. Notice.
I agree Stanley may be construed as establishing a due-process requirement for some type of notice to a non-consenting father in adoption-related proceedings. But “[o]nce it is determined that due process applies, the question remains what process is due.” Morrissey v. Brewer, 408 U.S. 471,481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972); Goss v. Lopez, 419 U.S. 565, 575, 95 S.Ct. 729, 738, 42 L.Ed.2d 725, 737 (1975). See also Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).
“It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. * * * To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.”
—Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. at 2600, 33 L.Ed.2d at 494.
In the vast majority of these situations, involving nonmarriage births followed by the mother’s attempted release of the child for adoption, we are balancing the recognized fundamental and personal right of privacy of a mother who has put her life on the line to bear the child [see Roe v. Wade, 410 U.S. 113,152-153, 93 S.Ct. 705, 726-727, 35 L.Ed.2d 147, 176-177 (1973); Doe v. Rampton, 366 F.Supp. 189, 193 (D.Utah 1973)], and the child’s fundamental and personal right of privacy not to be advertised as illegitimate, against the still-undefined constitutional rights of a father whose parenting potential has been manifested only by his demonstrated ability to conceive a child out of wedlock. In my view, the due *551process required by whatever countervailing rights the father possesses should be narrowed to accommodate the far superior interests of the mother and child.
The majority has already marked the essential futility of a “to-whom-it-may-eon-cern” notice in the case of a “putative” father whose identity or address is unknown. Balanced against such publication is the emotional and psychological trauma occasioned to the new mother by the unnecessary publicity, and violation of our state policy of privacy, anonymity and confidentiality in such proceedings, evidenced by our statutes. See §§ 232.27, 232.55, 232.57, 600.9, The Code.
In the case of identity-known “putative” fathers with a last-known address, a timely notice by restricted certified mail pursuant to § 618.15, The Code, should satisfy minimum due process requirements. Any notice delivered to a sheriff in this state for service becomes a matter of public record, and in rural county courthouses (which most courthouses in Iowa are), a potential subject of public information and discussion. The majority opinion permits restricted certified mail notice. But because many Iowa trial judges may have over-reacted to Stanley, I submit we should specify such service is sufficient in all cases.
It should be kept in mind that in the case of a non-caring or abandoning parent the express terms of our adoption statutes either require no notice or permit court waiver of notice. Sections 600.3, 600.4, The Code. In the case of severance of parent-child relationship, certified mail is permitted where the court deems personal service impractical. Sections 232.8, 232.45, The Code. Personal service of notice would cause embarrassing publicity to the mother, unnecessary publicity concerning the child’s status, and breach the state policy of confidentiality and anonymity and we should declare such notice impractical, justifying notice by restricted certified mail. This interpretation of our statutes will satisfy the obscure constitutional requirements of Stanley.
■ II. Hearing.
Nor am I convinced, as the majority and Justice Uhlenhopp apparently are, that such a non-caring “putative” father who does not have custody is so presumptively qualified as a parent that some other person or organization must assume the burden to prove his unfitness.
Such a result is not dictated or even suggested by Stanley, as the United States Supreme Court has recognized in its later references to that opinion. Stanley has been capsulated by the court as holding simply “that the State could not conclusively presume that any particular unmarried father was unfit to raise his child; the Due Process Clause required a more individualized determination.” Cleveland Board of Education v. LaFleur, 414 U.S. 632, 645, 94 S.Ct. 791, 799, 39 L.Ed.2d 52, 63 (1974); see also Vlandis v. Kline, 412 U.S. 441, 447, 93 S.Ct. 2230, 2234, 37 L.Ed.2d 63, 69 (1973) and United States Dept. of Agriculture v. Murry, 413 U.S. 508, 513-514, 93 S.Ct. 2832, 2835, 37 L.Ed.2d 767, 773 (1973).
The constitutional requirements articulated in Stanley and other United States Supreme Court decisions merely mandate that statutory presumptions be rebuttable; we need not go further and hold that there can be no presumptions at all with regard to putative fathers, much less need we judicially create a presumption unwed and non-caring fathers are prima facie fit parents.
We are brought back to the inescapable and as yet unanswered question: how many constitutional rights can be posited on the flimsy foundation of what is frequently only a casual sexual encounter? In this connection, it should be noted the decisions which upon superficial inspection might be interpreted as authority for lifting the proof burden from the “putative” father actually involve different factual backgrounds. See, e. g., Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), concerning the rights of one whom the court termed a “legitimate parent”: the *552divorced father of a child born in wedlock. A parent of similar status was the concern of this court in In re Adoption of Vogt, 219 N.W.2d 529 (Iowa 1974).
The tension between conflicting interests must be resolved with certain basic concepts in mind. The married family relationship is the fundamental building block in our society, a concept so judicially well recognized it has withstood constitutional attack based on religious freedom in Reynolds v. United States, 98 U.S. 145, 165, 25 L.Ed. 244, 250 (1879) (“Upon * * * [marriage] * * * society may be said to be built”). See also Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010, 1018 (1967). (“Marriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”) I have found no judicially articulated constitutional right to procreate outside a married setting. Judicial opinions have linked the two together. See Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942) (“Marriage and procreation are fundamental to the very existence and survival of the race”); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042, 1045 (1923). (“Without doubt [the liberty guaranteed by Amendment 14] denotes * * * the right * * * to marry, establish a home and bring up children * . * * ”); Planned Parenthood of Central Mo. v. Danforth, 392 F.Supp. 1362, 1370 (E.D.Mo.1975) (“Procreation has been held to be a fundamental aspect of the marriage relationship”).
How is it then that a biological father who has made no legal commitment for the child’s benefit, who has taken no responsibility, who has made no investment of pain or risk, and who, at least under today’s constitutional interpretations [see Doe v. Rampton, 366 F.Supp. 189 (D.Utah 1973)], has no constitutionally protected interest in the child to the moment of birth, suddenly upon such event acquires the full panoply of parental rights?
We are not required in these situations to ignore what we have learned as lawyers and confirmed as judges. The appeals which pass before us substantiate, in most situations, the truth only hypothecated in Stanley, 405 U.S. at 654, 92 S.Ct. at 1214, 31 L.Ed.2d at 560, “It may be, as the State insists, that most unmarried fathers are unsuitable and neglectful parents.”
I am similarly unimpressed by the argument frequently advanced, that because a non-caring unwed father has certain obligations, it necessarily follows he has all legal parental rights. Those obligations the law rightly imposes (see chapter 675, The Code) evolved out of a concern for illegitimate children, not unwed fathers. So also do the decisions in which courts have protectively struck down statutes discriminating against illegitimate children. See Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). While these decisions reject illegitimacy of the child as permissible classification, neither those cases nor Stanley, in my opinion, proscribe a delineation grounded on the unwed and non-caring status of a biological father. Such a classification could hardly be held “suspect” when those biological parents violate a judicially recognized and fundamental public policy. See Reynolds v. United States, supra; Loving v. Virginia, supra; Skinner v. Oklahoma, supra; Meyer v. Nebraska, supra.
In the interpretation of our statutes I would therefore impose two burdens on a “putative” and non-caring father who appears following notice in an adoption-related or severance proceeding.
The first obligation would be to establish by competent evidence his status as a biological parent. Neither the State nor a licensed child placing agency in an adoption proceeding should be bound by the word of the frequently distraught or secretive or protective or afraid or simply unsure mother.
It should be sufficient if a petition merely asserted the person given notice is a puta*553tive father who has a potential interest in the child. If the mother names more than one such person, all should be given notice. But the petitioning person or agency should not have the burden of proving which is the father, on penalty of dismissal of the petition if the proof fails. In such a case, trial court should be permitted to find the father is unknown, but nonetheless grant the petition. The same result should obtain where a noticed-in putative father pleads he is the biological father, fails to carry his burden of proof, and from the evidence trial court can discern the identity of no other reputed father who should be brought into the proceeding. Where the noticed-in putative father does not appear, or having appeared, denies he is the biological father, the court, upon finding proper notice and finding no one else who should be noticed in, also ought to be empowered to grant the petition.
A Stanley-mandated obligation to give a putative father notice should not relieve him, in asserting a parental interest in the child, from proving the legal ground for his right to make such assertion. This situation does not present the strong presumption of parenthood which prevails in the case of a child born to a married relationship, § 598.31, The Code; Kuhns v. Olson, 258 Iowa 1274,141 N.W.2d 925 (1966); Nelson v. Nelson, 249 Iowa 638, 87 N.W.2d 767 (1958); Bowers v. Bailey, 237 Iowa 295, 21 N.W.2d 773 (1946). Our statutory law recognizes the speculative nature of an alleged father-child relationship where there is no marriage, § 633.222, The Code. The clause “putative father” so frequently used in majority’s opinion and elsewhere in our jurisprudence is an implicit acknowledgment of the difficulty in fixing with any degree of certainty the biological father-child relationship. Webster’s Third New International Dictionary (1966) (“Putative * * * commonly * * * supposed * * * reputed * * * assumed * * *.”)
The second burden I would place on an unwed and non-caring father who has never assumed custody would be to establish his fitness and ability to properly care for and nurture the child. This is a burden beyond that which might satisfy the majority’s criterion, which appears to impose an obligation on the father to prove “he has been and is providing for the wants of the child.” This does not invoke a conclusive presumption of his incapacity, but rather strips him of the presumption of fitness accorded a biological father who by marriage has shown the maturity and responsibility to make a prior legal commitment to his potential children.
It should be further noted non-conclusive presumptions abound in our law and are frequently helpful in placing a problem in proper perspective. Such presumptions or inferences are found in cases involving grave issues where personal liberty is at stake. They have passed constitutional muster. See United States v. Johnson, 466 F.2d 537, 538 (8 Cir. 1972), cert. denied, 409 U.S. 1111, 93 S.Ct. 921, 34 L.Ed.2d 693 (1973) (inference of participation in a crime, from presence, companionship and conduct before and after crime is committed); State v. Hansen, 203 N.W.2d 216 (Iowa 1972) (inference arising from the presence of a specified percentage of alcohol in defendant’s blood); State v. Van Voltenburg, 260 Iowa 200, 147 N.W.2d 869 (1967) (inference or presumption of criminal intent from the possession of burglar tools).
In any event, should this position be interpreted as an imposition of a presumption of unfitness, it is not conclusive and is justified in the mine-run situations above noted. For the one-in-ten-thousand case of the conscientious and qualified biological father, that person shall have the opportunity to present proof and should have little difficulty in establishing his parenting fitness. On the other hand, imposition of these burdens would discourage the troublemakers, the blackmailers, the extortionists, and those who seek custody for the sole purpose of receiving additional A.D.C. payments, and would tend to provide protection for the constitutional rights of the mother and *554child and ultimately, the best interests of the child.
REES and HARRIS, JJ., join this special concurrence.