A GUIDE TO ADOPTION
by Douglas R. Donnelly
What Exactly is Adoption?
Whether we are aware of it or not, no one has a better understanding of the concept of adoption than the Christian. A Christian is, through God’s grace, accepted into God’s family without limitation or restriction, and possessing the fullest possible measure of all of the rights and privileges of membership in God’s family.
As Christians, we believe that we are accepted into God’s family not due to any virtue of our own, nor because of our works and accomplishments. Rather, acceptance is a function of God’s grace. Likewise, an adopting parent accepts a child into his or her family as an act of grace. This is not to say that there is no expectation of a warm, fulfilling and rewarding parent and child relationship. Viewed from the eyes of the adopting parent, however, adoption is more about giving-the giving of love, companionship and the provision of one’s material possessions-than it is about receiving.
It is beyond the scope of this booklet to explore the many implications of the concept of grace to the relationship between parent and child. It needs to be stated, however, that the concept of grace has even greater and more profound application to the relationship between adopting parent and adopted child than it does to the more traditional parent and child relationship. This is so because adoption is, by its very nature, a function of grace.
In most states, before an adoption can be finalized, the judge actually asks the adopting parents the following question: “Do you understand that if your adoption petition is granted, you will be entering into a contract with this state, in which you will be agreeing to treat the child, in all respects, as if you had given birth to him or her, without exception?” If the adopting parent cannot give an affirmative response to that question with a clear conscience, that person should not adopt. There is no place for differentiation between natural born and adopted children within one family. Such differentiation is the very antithesis of grace.
At no time in the history of the United States have more couples been looking to adopt than today. There are more infertile couples, in actual numbers, than ever before, and there is a higher incidence of infertility among married couples than at any time in American history. Although hard figures are not available, it is estimated that between 20 and 25 percent of all married couples experience an infertility problem of sufficient concern as to cause them to seek out medical advice.
Until very recently, approximately 12.5 percent of all married couples suffered from an infertility problem so severe that they were unable to bear a child, even with medical attention. In other words, about one-half” of all infertile couples have been unable to bear a child even with medical assistance.
People often ask why the rate of infertility has grown so high. We have
no simple answer, but the consensus is that the high rate of infertility in our society is largely due to cultural and environmental developments. In the pursuit of career goals, women are deferring child-bearing, often to an age which is well past their prime child-bearing years. As a result, by the time many women feel that they are ready to start their families, it may be biologically too late. Furthermore, as women increasingly pursue careers, they are encountering stress related infertility problems. For example, a disease called endometriosis, which causes growths to occur on a woman’s reproductive organs, is believed to result, at least in part, from stress- including job stress. For this reason, many obstetricians and gynecologists are referring to endometriosis today as the “career woman’s disease,” and it is one of the increasingly common causes of infertility in our society.
Ironically, at the same time there is an unprecedented demand for adoptions because of the rising infertility, fewer babies than ever before are available for adoption. There are two primary reasons for this. First, women are having more abortions than ever before. While no hard figures are available, it is estimated that there are anywhere from one million to two million abortions in the United States each year. Second, there is a growing tendency on the part of women who have conceived a child out of wedlock to keep the child. It is estimated that of those unmarried women who conceive a child and carry the child full term (i.e., those who do not have abortions or miscarriages), between 94 and 96 percent will keep their child. Stated differently, of those women who give birth to a child out of wedlock, only 4 to 6 percent will place that child for adoption.
The typical woman who chooses to place her child for adoption is 19 years old, above average in intelligence, is a college or university student and has career or educational goals that would preclude the raising of a child at that time. This is a composite picture, riddled with exceptions.
I have been involved in adoptions with birth mothers as young as 13 and as old as 43. When most people think of adoptions, they think of 15- to 17- year-old birth mothers, but this is usually a false image. In most cases, it is the 15- to 17-year-old woman who chooses to keep her child.
Adoption is most attractive to the older, more mature and insightful woman who is able to recognize what an enormous responsibility a child is, and also has a sense of her own limitations. Nothing is more heartbreaking than a 16-year-old girl who chooses to keep her child because she has a romanticized vision of life as a mother. If you ask a pregnant 16-year-old what her plans are for her expected child, it is an alarmingly common response that she is looking forward to taking her child for walks in the park, and is looking forward to, at last, having “something of my very own.” This is not to suggest that all teenage mothers are unfit, or that they have made their decisions based upon selfish or immature considerations; some teenage mothers are capable of very effective parenting. It would be naive, however, to not recognize that these life-changing decisions are all too often made solely upon misinformation or purely selfish considerations, totally ignoring the best interests of the child.
Of those women who do choose to place their child for adoption, most do
so out of a realistic evaluation of what they can or cannot offer to
the child. Most birth mothers have little to offer to a child financially, and if they choose to keep the child, this will probably mean becoming dependent upon welfare.
No one solution will be right for every woman or all circumstances. The key task she faces is to gather enough accurate information for an informed and meaningful decision. Increasingly, resources are being made available to assist the woman in this task. The decision of what to do with an unplanned pregnancy is far too important to be made in a vacuum, in the absence of hard facts. Forces such as Planned Parenthood and their “school-based health clinics” seek to impose only one set of options upon a woman carrying an unplanned pregnancy, and are actively opposing the right of others to provide information about other options. It is hoped that an open dialogue will allow a more meaningful decision-making process for the woman who finds herself faced with the most difficult decision of her life.
What Exactly is an Agency Adoption?
In each state, public and/or private agencies are licensed by the state to serve as adoption agencies. The public agencies are usually subsidiaries of the state, and are operated by the state’s department of social services, or similarly entitled governmental entity. In some states, this is called the state welfare department; others call it the child welfare department. In the more populous states such as California and New York, adoption agencies are usually operated by both the state and by the counties. Private adoption agencies typically are nonprofit corporations. Many of them are operated by churches or denominations for the benefit of their membership.
In both public and private adoption agencies, the essential procedure of an agency adoption is the same. In each case, the birth mother signs legal documents relinquishing her rights to the child in favor of the agency. The agency then places the child with the adopting parents who have been selected, and after a waiting period to see if the placement is successful— usually six to 12 months-the agency then legally relinquishes its rights’ to the child to the adopting parents. Thus, the primary function of the adoption agency is to serve as an intermediary or middleman. In most states, the agency serves as legal custodian and guardian of the child for the six to 12 months it takes to complete the adoption.
There are some significant advantages to an agency adoption from the standpoint of the birth mother. First, if the birth mother desires anonymity, the agency can act as in intermediary, shielding the parties from contact or obtaining more information about the other than is considered desirable under the facts and conditions of that particular case. A second advantage is that the agencies typically attempt to screen the adopting parents to make sure that each home receiving a child is a good home and can meet the child’s physical, emotional and spiritual needs. Generally, before a couple is approved for adoption by an agency, the couple goes through a screening process referred to as a “home study.” The steps and requirements for a home study vary from state to state and from agency to agency, but a fairly typical home study begins with several counseling sessions between the adoption case worker and the prospective adopting parents.
During these initial visits, the case worker attempts to make sure that neither of the prospective adopting parents has a criminal record, particularly a criminal record for child abuse, child neglect or nonsupport of a child by a prior marriage. The case worker also makes sure that the couple is truly married, and usually requires the prospective adopting parents to provide a certified copy of their marriage certificate, and certified copies of the final divorce decree and also a copy of the marriage license for each prior marriage of each spouse. The prospective adopting parents usually also have to provide proof of employment and copies of their tax returns to prove their income level. Most states also require that the adopting parents have physical exams to prove that they are in good health. Perfect health is not required to be an adopting parent, but a serious health problem could cause an agency to determine not to place a child with that couple.
The home study also includes a visit by the case worker to the home of the prospective adopting parents. This is not intended as a “white glove inspection” to determine how clean the house is. Rather, it is intended simply to assure the case worker that the home meets minimally acceptable legal standards for size and cleanliness. The home visit need not be a cause for anxiety, provided the home indicates a modicum of concern for cleanliness, health and hygiene.
The home study in an agency adoption is completed prior to the placement of the child. Most agencies try to place a child in the home of the prospective adopting parents within one year of the date of completion of the home study. In most states, a home study which is more than one year old is not considered “current” and must be updated. Accordingly, the agencies try to place the child within one year after the home study is completed to avoid duplication of effort.
From the standpoint of both the birth mother and the adopting parents, an advantage of an agency adoption is that counseling is provided by the agency. The adopting parents receive their counseling as part of their home study, prior to the placement of the child into their home. The birth mother typically receives counseling prior to the birth of her child. A fairly typical private agency requires that the birth mother have at least three sessions with the agency’s staff counselor prior to the placement of the child for adoption.
The primary disadvantage of an agency adoption, from the standpoint of the adopting parents, is the delay typically encountered. With so many people looking for children to adopt and so few babies available, agencies typically are quoting a waiting period of anywhere from five to eight years. Another problem is that most agencies have age limits and will not place a child with a couple where either of the spouses exceeds the limit. In most agencies, this age limit is 40.
The agency adoption age limits-combined with the five- to eight-year typical wait for an adoption-serve to prevent many infertile couples from adopting through an agency. If a husband and wife are both age 36, most agencies will not even bother to talk to them because they will not be receiving a child for at least five years, by which time they will be over age 40 and ineligible under the rules of the agency. Although these age limits have come under increasing criticism, most agencies continue to enforce them.
Another disadvantage of an agency adoption is that most agencies are unable, or unwilling, to assist the birth mother with medical bills related to the pregnancy and the delivery of the child. This can be a very important, and even overriding, consideration for a woman considering placing a child for adoption. In many areas of the country, the medical bills for a normal, noncaesarean delivery without complications will run approximately $3,300 at this writing, and this expense is rising each year. If a birth mother has no health insurance and if she does not qualify for any of the various state or federal welfare or assistance programs, her single greatest concern may be how the medical bills will be paid.
Historically, virtually all agency adoptions have been “closed adoptions”-the birth mother and adopting parents did not exchange last names, did not meet, and were generally told very little, or nothing, about each other. The term “closed” is taken from the fact that the adoption records are sealed, usually by virtue of both the internal rules of the agency and state law. Almost every adopting parent fears that a birth mother or birth father will at some point re-enter the adopted child’s life and interfere with the parenting by the adopting parents. It is not uncommon for adopting parents to actually have nightmares about a woman knocking on the door five years after the couple has received a baby, demanding to see her child. Many adopting couples prefer agency adoptions because it is extremely difficult for a birth mother to find the adopting parents after the adoption is completed. Occasionally, a birth mother also will express great fear that, at some point in time, the adopted child or the adopting parents may attempt to re-enter the birth mother’s life after the adoption is complete. For those birth mothers who find this a major consideration, an agency adoption may be preferable to its alternatives.
In the classic (or traditional) agency adoption, the agency selects the
adopting parents. If the birth mother has specified certain criteria for the home into which the child is to be placed, the agencies typically will endeavor to comply with those requests, but the agency is not legally bound to do so. This can create some serious problems, such as when the birth mother specifies that she wishes her child to be placed in a Christian home. A great many social workers are very unsophisticated theologically. In one case, a birth mother asked an agency social worker if the child would be placed in a Christian home. The social worker replied that finding a Christian home would be no problem, as the agency had many Christian couples then available. The social worker then proceeded to describe prospective adopting parents who were members of cults that call themselves Christian. That birth mother, being strongly convinced that not all groups calling themselves Christian deserve the title, chose not to place her child through that agency.
A new trend in agency adoptions began in California and is gradually spreading throughout the rest of the country. This trend is for the agency to allow the birth mother to exercise some degree of control in the selection of the adopting parents. For instance, an agency might compile resumes of several couples that the agency has already pre-approved and prescreened, and then present those resumes to the birth mother, and allow her to select between the couples. Adoptions arranged in this fashion are sometimes referred to as “agency open adoptions.” Agency: adoptions of this kind still represent a very small minority of agency placements throughout the United States, but this practice does represent a growing trend within the adoption field.
In a traditional agency adoption, after birth the child is placed into a foster home, where he remains until all legal papers regarding his status are signed by the birth mother-and father, where appropriate. This typically takes anywhere from 1O days to two months, and the child remains in foster care until all doubts as to his status are resolved. Once the child is free for adoption, either through a written relinquishment of parental rights in favor of the agency by the birth parents or through court action, the adopting parents are notified and advised for the first time that a child is available for them.
Another trend affecting agency adoptions is a new tendency to avoid foster care, wherever possible. Many agencies have had to re-examine their policies on this issue because of widespread criticism by birth mothers and adopting parents of the fact that the child spends the critical first few weeks or months of life in foster care. As a result, some agencies have recently begun experimenting with “direct placements,” in whichthe child goes home directly from the hospital to the home of the adopting parents after birth. There is an element of risk in doing this. The reason agencies have historically placed children into foster care until the relinquishment paperwork was signed was that the agencies feared placing a child into a home, and then having to remove him if some legal problem arose, or if the birth mother changed her mind. Therefore, when the adopting parents in an agency adoption accept the child into their home in a “direct placement” immediately after birth, the adopting parent must bear in mind that this is done at some risk, and that in most states there is a possibility that the birth mother might change her mind, or that other legal problems might arise which would cause the agency to remove the child from the home.
In conclusion, the American system of agency adoptions has served us very well. Throughout this century, literally millions of children have been placed in outstanding homes, and have been provided with excellent care because women have chosen to place their children for adoption through agencies, and because of the professionalism and concern of the agency social workers.
In independent adoption, the child is placed with the adopting parents by the birth mother, without an agency serving as intermediary. Independent adoptions are lawful in all but a handful of states, but in some states they are severely restricted. For example, in Massachusetts and several other states (including Maryland, Michigan, Minnesota and North Dakota), a birth mother can place a child for adoption independently (without an agency) only if the adopting parent is a member of the birth mother’s family. In these states, if a birth mother desires to place a child for adoption outside her own family, she must go through an agency.
In a few other states, including Ohio, Texas, Virginia and Indiana, independent adoptions are not disallowed by law, but the social services structure within those states is so powerful and so hostile to the concept of independent adoptions that the social workers refuse to even process the paperwork on independent adoptions. As a consequence, independent adoptions simply do not occur even though they may be allowed under the laws of that state.
In Illinois and Colorado, independent adoptions are not allowed within the state, but if the placement occurs within another state where the placement is lawful, Illinois and Colorado will under many circumstances approve the placement and allow the adoption to proceed. Florida allows a child to be taken into the state for purposes of independent adoption but will not allow a child to be removed from the state for that purpose.
These laws are being revised constantly by the various states, so it is critical that a person considering an independent adoption retain an experienced adoption attorney. If an interstate adoption is planned, experienced attorneys must be hired in both states.
In more than 40 states, independent adoptions are allowed by law and are met with varying degrees of acceptance. For example, in California, more than 80 percent of all adoptions of newborns are independent adoptions. Thus, in California, and in a number of other states, independent adoptions are the norm, and agency adoptions are the exceptions.
In an independent adoption, the birth mother usually selects the adopting parents herself. For her selection of the adopting parents to be meaningful, she must know a good deal about the couple. At a very minimum, she should know what the couple looks like, what their educational backgrounds are, what they do for a living, how long they have been married, how many times they have been married, what kind of income they have, their approximate net worth, whether they own their own home, what religion they are and how religious they are, and what hobbies and interests they enjoy. Apart from this basic information, she should be provided with as much information as she deems necessary. In most cases, the birth mother will want to meet with the prospective adopting parents to satisfy herself that the couple is sufficiently well qualified to adopt her child.
Arguably, only one or two states require a face-to-face meeting between
the adopting parents and the birth mother, and these states apparently
also require that the parties exchange last names. In most states, however, this is not required, and it is not unusual for a birth mother to express the preference that she meet the couple, but not be advised of their last name. The birth mother plays the active role in an independent adoption, and she should be allowed to define the terms of the adoption in such a way as to best suit her needs. If she wishes to meet the adopting parents, as most will, she should meet them. If she chooses not to meet them, no one should try to force her unless it is the opinion of legal counsel that it is required under the laws of that state. Likewise, she should determine the amount of contact she is to have with them, both before and after the placement of the child.
The adopting parents also have some options in an independent adoption, but they are more limited. As the recipients of the child, the adopting parents play the passive role: Their response to the desires of the birth mother can take only two or three forms. The adopting parents can respond affirmatively to the request of the birth mother, indicating that they can live with that request. Alternatively, they can respond negatively, indicating that they cannot live with that request and, therefore, choose to opt out on that adoption. Third, they can negotiate-seek compromises that meet the needs of the birth mother without causing undue anxiety or stress for the adopting parents. There is nothing unseemly or inappropriate about such negotiations. In fact, they are a positive thing, because they allow the parties to jointly structure an adoption that best suits their needs and desires.
Typically, the parties find it helpful to have some objective person to assist in these negotiations, such as a counselor or attorney. However, care should be exercised, because some states forbid “intermediary activity,” which is usually defined as a third party assisting the parties to the adoption by acting as a buffer between them. Other states allow the assistance of an intermediary, provided that the actual selection of the adopting parents is done by the birth mother and not by the intermediary or any other person. Utah allows limited assistance of an intermediary, provided that the intermediary is not paid for this service. Once an agreement is made as to the terms of the adoption, the agreement should be confirmed in writing-not as a legally enforceable contract, but rather as a memorandum of understanding between the parties to prevent future misunderstanding or confusion.
People often assume there is a massive contract between the parties to an independent adoption, and disappointed to find otherwise. A baby is not a commodity that can be bought, sold or contracted for. Even if you were to take the trouble to draft such a contract, it is highly unlikely that such an agreement would be enforceable by the courts in the event that it was breached by either party. This is one of the reasons why people typically choose to meet in independent adoptions, because they are placing significant reliance and trust on each other, and a face-to-face meeting serves to facilitate trust, respect and mutual understanding.
There are some very good reasons why birth mothers tend to prefer independent adoptions over agency adoptions (in those states where the birth mother has a choice). First, most birth mothers are attracted by the fact a that an independent adoption allows them the freedom and flexibility to define the terms of the adoption in such a way as to best meet the birth mother’s needs. Second, it is legal in most states where independent adoptions are allowed for the adopting parents to pay the medical expenses of the birth mother related to the birth of the child (to the extent that these expenses are not covered by private health insurance or through some form of welfare or public assistance). For some birth mothers, this can be a very important consideration.
In many parts of the country, a normal delivery without complications
can cost about $3,300-or $7,000 should the delivery be by caesarean
section. State laws regarding adoptions typically provide that adopting
parents may pay these medical expenses only if the expenditure is
reasonable and necessary, is related to the pregnancy and delivery of the child, and is paid by the adopting parents unconditionally and as an act of charity. State laws typically forbid the adopting parents to attach any strings to their payment of the medical bills, particularly any condition of payment that the birth mother place her child for adoption with them.
A number of states allowing independent adoptions also provide by statute that it is a misdemeanor for a birth mother to accept this charity from the prospective adopting parents unless she has an actual intention to place her child with the donor couple. This does not mean that a birth mother is legally obligated to proceed with an adoption if she accepts assistance with the medical bills from the prospective adopting parents. Rather, these statutes are intended to prevent a woman who has no intention of placing her child for adoption from accepting financial assistance from hopeful adopting parents. Accordingly, a birth mother who legitimately intends to place her child for adoption, and accepts financial assistance from the adopting parents for that purpose, may still legally change her mind afterward.
States differ greatly as to the propriety of payment of living (i.e., non-medical) expenses of the birth mother by the adopting parents. A number of states, such as Colorado, prohibit the adopting parents from paying any expenses of the birth mother other than medical expenses and counseling expenses related to the pregnancy. Most of the other states allowing independent adoptions, however, provide that it is not illegal for adopting parents to pay other expenses of the birth mother, provided that the expense is reasonable and necessary, is related to the pregnancy, is paid by the adopting parents unconditionally as an act of charity, and is not conditioned nor contingent upon the successful completion of the adoption.
In these states, including California, great care must be exercised in determining which expenditures may be legally allowable. For example, adopting parents may rent a car for use by the birth mother during the pregnancy so that she will have transportation to medical appointments and to the hospital when she goes into labor. The adopting parents, however, may not purchase a car and give it to the mother, even if it is an inexpensive transportation car and winds up costing less than a rental car. The propriety of financial assistance in this context often turns on subtle interpretation of intent.
The purpose of these often confusing state statutes dealing with financial assistance is that all states desire to prevent the purchase or sale of children. In all of the 50 states, buying or selling a child is a felony, and these often confusing rules exist to differentiate between legitimate financial assistance provided to the birth mother by the adopting parents and the purchase or sale of a child.
Most states require that the adopting parents file with the court an accounting report listing every expenditure that has been made, or agreed to be made, by the adopting parents in connection with the adoption. These accounting reports must be signed under oath by the adopting parents. The courts typically look these accounting reports over very carefully to make sure that financial arrangements were made in compliance with the laws of that state. The court will not grant the adoption petition unless the court is satisfied that there was no financial impropriety in connection with the adoption.
Generally, in independent adoptions in states where financial assistance by the adopting parents is permitted, it is considered customary for the adopting parents to deposit funds into an attorney’s trust account, from which the attorney disburses funds in payment of medical bills or such other expenses as the adopting parents may specify, and as the laws of the state may allow. The courts prefer that funds be administered through an attorney’s trust account because attorneys are considered officers of the court, and judges tend to feel more comfortable with adoptions where an officer of the court oversees the disbursement of funds to ensure compliance with state law.
In all states that allow independent adoptions, except California, an attorney in an independent adoption may represent only the adopting parents or the birth mother, but not both. This rule has its origin in an assumption that an independent adoption is an adversary proceeding, in which there are two hostile and competing sides: adopting parents versus birth mother. Typically, each “side” retains separate legal counsel, with the adopting parents bearing responsibility for both legal bills.
This issue of “sides” brings us to an interesting question: Is an independent adoption really an adversary proceeding? In reality, the parties are usually united by a common goal and purpose-the best interests of the child. As long as the birth mother and the adopting parents are in agreement as to what is in the child’s best interest, it may properly be said that there is not conflict of interest for an attorney.
In recognition of this fact, the state of California has provided bystatute that it is not unethical for an attorney to represent both the birth parents and the adopting parents in an independent adoption, provided that all parties agree in writing to waive whatever technical conflict of interest might exist should the attorney undertake this dual representation. Furthermore, both the laws and the ethical rules in California require the attorney to resign from the case if an actual conflict were to arise.
In the more than 40 states that allow independent adoptions, the state
exercises supervisory control over the process of the adoption. In most states, someform of home study must occur prior to the placement of the child in the home. This can take many forms, such as in a handful of states that require the adopting parents to obtain a foster care license prior to the placement of the child. In California and a number of other states, the home study does not commence until after the child is in the home and after the adopting parents have filed with the court their adoption petition. The court then appoints the state department of social service, or some equivalent agency, to conduct a home study and advise the court as to whether the petition should be granted or denied.
The procedures and requirements of this home study vary from state to state, and even from county to county. Typically, the home study in an independent adoption is remarkably similar to that which occurs in an agency adoption. Each state provides by statute some period of time within which the home study is to be completed-usually about six months. The courts may allow extra time for the completion of the home study if some good reason exists why the responsible agency is unable to complete it within the time normally allowed by law.
Viewed in this light, it can be seen that independent adoptions represent the most important development in the field of adoptions in the last 50 years. Most people who experience an independent adoption find it to be a loving and warm experience. Adoption is always a painful experience for a birth mother, but an independent adoption allows her to structure the adoption in such a way that her needs are met.
It is common for a birth mother to indicate that had she not met the adopting parents and liked them very much, and had she not been able to structure the adoption to suit her own needs, she would not have placed her child for adoption. It is no coincidence that those states which do not allow independent adoptions also have the lowest rates of adoptions per capita in the United States. It is statistically demonstrable that many women who would have placed their child independently if that were an option, choose to keep their child rather than place him through an agency adoption.
It is true that independent adoptions are still considered controversial in some quarters. This view is most common among those who feel that the act of selecting adopting parents should be left to social workers and others professionally trained in that field. Proponents of independent adoptions might respond that the birth mother herself is in a better position to determine what her needs are. At least one popular writer in the adoption field has expressed the opinion that it is unnecessarily paternalistic, and even demeaning, to suggest that a birth mother is unable to select the adopting parents herself, and that she requires the services of a social worker in placing her child.
Most of the controversy surrounding the issue of independent adoption arises out of perceived abuses in the independent adoption process. For example, it is a commonly held view that there exists a “gray market” for newborn babies in the United States through which babies are made available to the extremely rich or highest bidder. Fortunately, this gray market myth has little or no basis in reality. In almost every one of the more than 40 states that permit independent adoptions, the state closely regulates the adoption process, and the state and the courts will not allow an adoption to occur if there has been any impropriety or violation of the laws of that state. As a result of this state supervision, the kinds of abuses commonly assumed to occur in independent adoptions, in fact, do not exist.
In summary, independent adoptions represent an attractive alternative for the birth mother considering placing her child for adoption. It also represents a viable option for adopting parents who would prefer not to wait several years for an adoption through an agency, or who would not qualify for an agency adoption because their ages exceed the maximum age limit that agencies typically impose.
Independent adoptions, however, are not for everyone. If a birth mother or prospective adopting parents are troubled by the possibility of meeting the other parties to the adoption, or if a birth mother does not wish to bear responsibility for decision-making, an agency adoption might be preferable.
Open and Closed Adoption
Traditionally, in the United States, a birth mother surrendered her rights to her child to an agency. The agency then selected and notified adopting parents, and after a trial period, relinquished its rights to the child in favor of the adopting parents. Under this approach, the adopting parents were told little or nothing about the birth mother, and the birth mother was told nothing about the adopting parents. An adoption that follows this pattern is referred to as a “closed” adoption, because the records are sealed. If the adopted child, upon reaching adulthood, desired to contact his or her birth parents, the agency would refuse to provide any information.
It is commonly assumed that agency adoptions are “closed,” and that independent adoptions are “open.” Actually, this is not true. Many agencies are allowing birth mothers and adopting parents to meet and to exchange addresses and telephone numbers. Likewise, it is possible in many states allowing independent adoptions to structure such an adoption with closed records, where the parties do not know each other’s last names, addresses or telephone numbers.
Of course, the choices are not limited to “open” or “closed” adoptions, because some adoptions are more open or more closed than others. For example, it is not unusual for a birth mother in an independent adoption to meet with the adopting parents she has selected and to exchange last names with them, but not to know where they live or what their telephone number might be. Each adoption is unique, and great sensitivity must be exercised by all involved in the adoption process to determine the degree of “openness” that would best suit the needs of the parties to that adoption. This determination is typically referred to as the “structuring of the adoption.”
All of these issues should be discussed at some length by the parties if they meet. If the parties do not meet, the social worker, attorney or other person serving as intermediary must discuss these issues with the parties, allowing them to arrive at a consensus.
As the parties negotiate the structure of the adoption, they should always keep in mind that their separate needs will frequently conflict. Many birth mothers want to have significant contact with the child at the hospital. The adopting parents also typically feel a need to bond to the child at the hospital. On those issues where there might be direct conflict between a birth mother and adopting parents, the adopting parents should defer to the birth mother, if possible. If the parties are unable to work out a compromise, no adoption should occur.
It must be noted that this kind of negotiation occurs to some extent in both agency and independent adoptions. The more open the adoption, the more flexibility that might be exercised. There will always be those adopting parents and birth mothers who will feel that they would rather not engage in these kinds of negotiations, preferring to simply have someone advise them as to how they should structure their adoption. For them, a closed agency adoption should be preferred.
Laws are changing with respect to access to adoption files. As with other laws regarding adoptions, these laws vary from state to state. Traditionally, all adoption records were sealed to all parties and could never be opened except by court order. In most states, these court orders could be obtained only if a serious medical emergency arose, such as where a related organ donor was required. Most states still have these laws. In some states, such as California, the records are sealed only if that is what the parties request. In California, the relinquishment form signed by the birth mother asks whether she wants the state to provide the child with her name and last known address and phone number if the child asks for this information after he attains the age of 21. The birth mother can check a box on the form indicating whether she wants the state to provide this information should the adult adopted child request it. She can at any time change her mind. There is great wisdom in this approach, for it allows the parties to an adoption to maintain privacy if that is their desire.
Many groups today advocate free and open access to all adoption records. These groups are usually referred to as “search” groups, and they are intensively lobbying the Congress and the state legislatures, arguing that an adopted child has “a right to know his background and birth parents.” At this time, however, there is no legally recognized “right to know,” yet there is a recognized right to privacy, which has been held to be a fundamental constitutional right. If a state were to change its laws and suddenly allow open access to its adoption records, even retroactively releasing records of adoptions which had occurred years before, it is doubtful that this new law would be ruled constitutional if it were challenged in court.
In conclusion, the structuring of an adoption involves a number of critical decisions, each of which plays a role in how well the parties adapt, over the long term, to the adoption. The adoption can be structured either through negotiation by the parties or by an agency. In either case, competent counseling is required for all concerned. No one model, procedure or type of adoption can meet the needs and concerns of everyone. This is why we are fortunate today that most states allow diversity and experimentation. We are constantly finding new ways to make adoptions more loving and humane, and we are a spiritually richer society because of this effort.
What About the Child’s Father?
Birth fathers have rights that must be dealt with in an adoption. The
extent and nature of these rights is handled in a number of different ways in different states. The basic constitutional framework was set forth in a 1972 Supreme Court decision (Stanley v. Illinois). The court ruled that the Constitution requires that a birth father be given notice that he might be the father of a child who is being adopted, and he must also be given an opportunity to be heard in court as to why the adoption should not go forward. This case and several others have also established that a state may set forth different categories of fathers called “classes”-with the fathers in some classes having greater legal rights to the child than fathers in other classes. The states have been given wide discretion in the application of these rules.
In a number of states, a child cannot be adopted without the consent of the birth father if he is or was married to the birth mother within a designated period of time prior to the birth of the child. If the birth parents were not married, some states grant the birth father the same rights if he lived with the birth mother after he became aware of her pregnancy. This is often called by the courts a “veto power over an adoption,” because the child cannot be adopted without the birth father’s consent.
On the other hand, if the birth father has never married the birth mother and has never lived with her, many states will not require his consent to the adoption. Instead, the birth father is merely given formal written notice that an adoption is pending of a child which might be his natural child. If he does not then object to the adoption by filing a court action to establish his parental rights within a specified period of time (usually 30 days), his parental rights are automatically terminated, and the adoption can go forward without any further notice to him.
If he does object to the adoption action within the time allowed, a hearing is held to determine whether the adoption is in the child’s best interest, or whether the child’s best interest is better served by awarding custody to the birth father. In the vast majority of cases, the birth father does not actively oppose the adoption, and even if he does oppose it, he has little chance of convincing a court that the child is better off with him than with a well-qualified adopting couple.
In some cases, either the identity or the whereabouts of the birth
father will be unknown. State laws also provide varying methods of dealing with this situation. In most states, some form of notice must be published in the legal advertising section of the newspaper informing all persons claiming to be the natural father of the child of the pending adoption, and informing all such persons of their right to appear in court to oppose the adoption. In other states, such as California, if the identity of the birth father is unknown, the law provides that the court shall terminate the parental rights of the unknown natural father. Likewise, in California, if the birth father’s identity is known but his whereabouts are unknown, and if the adopting parents and their attorney can demonstrate to the court that a thorough and good faith effort was made to locate him, the law allows the court to terminate the parental rights of the birth father.
Regardless of the extent of his parental rights, the birth father is often relieved to see his child adopted. The adoption has the effect of terminating the birth father’s parental obligations as well as his rights. Every state requires a father to support his child to the best of his ability. But if the child is adopted, the birth father has no further legal responsibility to support his child. On the other hand, if the child is not placed for adoption, the birth mother will have the right to sue the birth father for paternity and child support if she chooses. His obligation to support the child will continue until the child marries or reaches 18 (the legal age of adulthood). Furthermore, if the child is not adopted, in many or most cases the birth mother will become a recipient of some form of welfare. If the birth mother receives any form of welfare, under the federal law the district attorney where she resides is required to sue the birth father for paternity and child support, whether she wants the birth father to be sued or not. A new federal law also went into effect in 1985 providing that if the birth father defaults upon his child support obligation, the district attorney is to garnish or attach the birth father’s wages. It is understandable that most birth fathers prefer to see the child adopted.
In many cases, the birth father will want to play an active role in the adoption and will be present when the child is born. If possible, the birth father should be an integral part of the adoption, and care should be exercised to see that he is not overlooked. It is desirable that he receive counseling and participate in the structuring of the adoption with the birth mother. Some birth fathers will not cooperate with an adoption, regardless of how much the adoption is in their own interest. Many fear that even if they sign a form denying paternity and waiving paternal rights, this might be construed as some kind of admission that they were involved with the birth mother. It is tragically common for a birth father to ask “How do I know that I am the father?”
In those instances in which there is some legal or emotional reason to determine paternity conclusively, a new blood test is available which can establish paternity with an accuracy of about 99.8 percent. This procedure, called an HLA test, was originally developed to assist in determining suitable organ donors. Its usefulness in determining paternity was later discovered. An HLA blood test is expensive, and only a few places in the country can perform it. Rut the results are very impressive. The results are so accurate that if 1,000 men of the same race were chosen at random and tested, only two of them could be the father of the child. It will also indicate whether a particular person is either excluded or not excluded as the father of the child. HLA blood tests are now admissible evidence in most, if not all, states, with restrictions in some.
Interstate and International Adoption
Often, an adoption will be arranged in which the birth mother lives in
one state while the adopting parents live in another state. These
“interstate adoptions” have some special concerns and problems.
Because there are no federal laws on adoptions, each state has its own unique laws. This led to people traveling from one state to another trying to find a state with the most accommodating laws. The courts refer to this practice as “forum shopping,” and the tendency is for the courts and legislatures to discourage it.
To establish order in interstate adoptions, about 45 of the 50 states formed a club called the “Interstate Compact on the Placement of Children.” Officially, the purpose of the Interstate Compact is to facilitate interstate adoptions, but the result has often been the opposite. Briefly, each of the states belonging to the compact has agreed that it is a crime for a child to be taken into or out of that state for the purpose of adoption, unless the adoption has been approved in advance by both the “sending state” and the “receiving state.” The compact also provides that no adoption placement is to be approved unless it is made in compliance with the laws of both states. This can be a serious problem, for the laws of the two states involved in an adoption may be in such conflict that one cannot comply with the laws of one state without breaking the laws of the other.
The procedure in an Interstate Compact adoption placement begins with the filing of a number of papers with the Interstate Compact coordinator in the sending state, who then processes the papers and forwards them to the Interstate Compact coordinator in the receiving state. The paperwork involved is typically rather voluminous and generally includes a “social history” and health history of the birth mother and father. Significant delays are the norm in Interstate Compact placements, and it is usually wise to submit the paperwork for processing at least two months prior to the expected delivery date of the child. If the interstate placement is not approved by the Interstate Compact coordinators in both states prior to the birth of the child, the adopting parents may have to remain in the state where the baby is born until approval is obtained. It is not unusual for adopting parents to have to stay in a hotel with the child for several days or even weeks while awaiting this approval.
Interstate adoptions become even more complicated when the adoption is an independent adoption, because there is greater diversity between state laws as to independent adoptions than there is as to agency adoptions. If the birth mother lives in one of the states that either bans independent adoptions or discourages them, and if she desires to place the child herself, she may have to leave that state to accomplish this.
Many times the parties will try to avoid the Interstate Compact by having the birth mother travel to the state of residence of the adopting parents and give birth in that state. Some states, including Illinois, take the position that this is still an interstate adoption, because the state where the birth mother delivered the child is not her state of residence. Other states, such as California, take the position that if the baby is born in one state and is to be placed with adopting parents residing in that same state, it is not an interstate adoption even if the normal residence of the birth mother is in another state. In many cases, the only way an independent adoption can occur is for the birth mother to travel to another state and deliver her child there, making the adoption an interstate adoption rather than an interstate adoption. Although this practice has been criticized, it seems a logical and reasonable way to avoid the often unreasonable and arbitrary restrictions of the Interstate Compact.
In summary, the Interstate Compact was intended to facilitate adoptions and to bring about certainty and uniformity in the handling of interstate adoptions. Its effect, however, has often been to prevent adoptions that might be very much in the child’s best interest.
The extreme difficulty in locating a baby to adopt in the United States has caused many adopting parents to look elsewhere for a child to adopt. International adoptions are an increasingly common phenomenon. The most common international adoptions involve children from Korea, but more and more children are being adopted from Latin America.
Two primary obstacles face a couple who desire to adopt a child from another country. First, the couple must be approved by a licensed agency that handles international adoptions. There is no such thing as international independent adoption. All international adoptions are arranged by agencies. Agencies throughout the United States specialize in arranging international adoptions, and these agencies work cooperatively with agencies in other countries. In most international adoptions, two agencies are involved: one in the United States and one in the child’s homeland.
A couple desiring to adopt a foreign child typically first completes a home study with the agency. This home study is essentially the same as in a more traditional agency adoption, except that the more conscientious agencies will also spend a good deal of time counseling with the couple on how to deal with the cultural problems which inevitably arise in international adoptions. Once the home study is completed, the agency commences a search for an appropriate child to place in that home. The children placed in international adoptions tend to be older than those in independent or domestic agency adoptions. Once an appropriate child is selected, the adopting parents must also be approved by the foreign agency placing the child. In some cases, this will require the adopting parents to travel to the headquarters of the foreign agency for an interview. Once both the adopting parents and the child are selected and matched by the two agencies working together, the adopting parents encounter the second obstacle to the adoption.
The second hurdle is the United States Immigration and Naturalization Service (INS). INS rules and regulations are extremely complicated, but the adopting parents must comply if the child is to be lawfully brought into the United States. First, the adopting parents must file with the INS a petition to establish an adoptive or prospective adoptive relationship with a foreign-born “orphan.” The INS defines an orphan as an alien child less than 16 years old, who has no parents, whose parents have become separated from the child, or whose surviving parent is incapable of caring for the child and who has irrevocably and in writing relinquished the child for adoption and immigration.
To be eligible for an entry visa, the child must either have been adopted abroad or must be coming to the United States for adoption by a U.S. citizen and spouse jointly, or by an unmarried U.S. citizen who is at least 25 years old. The prospective adopting parents must then demonstrate to the INS that they are lawfully married, that they have complied with all pre-adoption requirements of their state of residence, and that the child is truly free for adoption or was lawfully adopted in a foreign country. Each step must be completed to the satisfaction of the INS before the child may be brought into the United States. The INS requires a filing fee for processing this application, which at this writing is $50.
International adoptions can be both extremely rewarding and challenging for the adopting parents and the child. Because the child is typically an older child, he or she will have memories of life in his or her homeland, and will bring a cultural diversity to the home of the adopting parents. These memories, however, may often also involve severe deprivation, hunger and even abuse. It is common for a newly adopted child from another country to hoard food and to mistrust the adopting parents. Only time and generous quantities of love can break down cultural, economic and linguistic barriers between the child and the adopting parents. Also, it is true of all adoptions that the older the child, the more difficult the transition and adjustment to the new familial relationship. For this reason, counseling is strongly recommended after the placement for both the adopting parents and the child. Many agencies require adopting parents to agree to such ongoing counseling as a condition before a foreign child may be adopted.
Adoptions are a very special way to start or enlarge a family. Thankfully, there are many different ways to go about adopting or placing a child for adoption. To the woman carrying an unplanned pregnancy, adoption represents an alternative to abortion that she can feel good about. To the couple suffering from an infertility problem, adoption may be the only way that they can satisfy their overwhelming longing to parent a child.
To take two separate tragedies-an unplanned pregnancy and a couple grieving over an infertility problem-and to combine them in such a way as to solve both problems simultaneously, is exciting beyond words. Through grace, the birth mother makes a painful but heroic decision and is granted the strength to see the decision through. Also through grace, the adopting parents accept a child into their home and bestow on that child their name, their material possessions and the fullest measure of their love and affection.
A special bond exists between birth mothers and adopting parents. They have together, through teamwork of a most magnificent kind, created a human being with a soul and personality, in a way which neither could have accomplished without the other. There is no greater human example of grace.
(The above information was published by FOCUS ON THE FAMILY)
Christian Information Network