Rights of Parents Considering Surrender & Parents Who Surrendered Children to Adoption
Origins-USA is raising awareness of the need to better protect the rights of parents and expectant parents who are considering surrendering their children to adoption, as well as the rights of mothers and fathers who have lost a child or children to adoption.
Did you know...?
* In some U.S. states, mothers and fathers sign away all parental rights before the child is even born, while in other states mothers sign irrevocable surrenders of parental rights upon leaving the delivery room.
A 2005 review of state laws by Elizabeth Samuels, published in the Tennessee Law Review, found: “Most state laws, in contrast to the laws of many other countries, provide that consent may be given and become irrevocable almost immediately after the child’s birth. Under the laws in more than half the states, irrevocable consent can be established in fewer than four days.” Samuels concluded, “the laws of most states do not sufficiently promote mothers' deliberate decision-making.” Many other countries allow parents significantly more time to decide. France provides for a period of two months. Six weeks is the specified minimum period under the European Convention on the Adoption of Children, which has been ratified by 18 nations. In Victoria, Australia, the prospective adopters do not have contact with the mother before birth, and the mother may not give consent until her child is 15 days old. After giving consent, she has a 28-day period in which she may withdraw consent, a period similar to the periods in all Australian jurisdictions. (Samuels, Elizabeth J., Time to Decide? The Laws Governing Mothers' Consents to the Adoption of Their Newborn Infants. Tennessee Law Review, Vol. 72, p. 509, 2005. Available at SSRN: http://ssrn.com/abstract=843584)
Sixteen States and the Northern Mariana Islands allow parents to consent to surrender their child to adoption at any time after the birth of their child. Approximately 14 states allow fathers to execute consent at any time before or after the child’s birth. (CWLA, "Consent to Adoption," Current through April 2010).
In contrast, most U.S. states require that a puppy be at least eight weeks old before being offered for sale or adoption. (Michigan State Univsity College of Law. (Updated 2010.) "Overview of Laws Restricting the Age of Puppies for Sale." http://www.animallaw.info/articles/ovuspuppysalelaws.htm)
* Draconian regulations prevent mothers from regaining custody of their children after an adoption has been finalized, even if the adoption was initially the result of fraud or coercion.
"In many states, you can change your mind about buying a vacuum cleaner or taking out a mortgage within a prescribed time period, but most states do not have a revocation period during which a mother can change her mind about relinquishing her child... To permit a woman to make a reasoned judgment – which can be difficult in the days and weeks after childbirth – there should be a significant period of time before she can sign a legal relinquishment, and there should be a reasonable revocation period during which she can change her mind about placing simply because she wants to be a parent and without having to jump through legal hoops.” --Susan Smith, Safeguarding the Rights and Well-Being of Birthparents in the Adoption Process. 2006 November. Revised with Forward 2007 January. New York NY: Evan B. Donaldson Adoption Institute
* In most states, if a mother receives any information or counseling, the adoption industry usually provides it and the industry is paid only if the mother surrenders her child.
As Elizabeth Samuels noted in a 2005 Tennessee Law Review article, the United States courts have seen "a multitude of cases" in which a natural parent seeks to contest the adoption of her child and reclaim her child. These cases reveal "an absence of the skilled and unbiased counseling that would provide mothers with sufficient information and support to make deliberate and final decisions." Samuels recommended: "Counseling for mothers should include providing information about alternatives to adoption, options within adoption, legal steps and consequences involved in adoption, and possible effects of adoption on themselves and their children... Information should be provided to mothers both orally and in writing."
(Samuels, Elizabeth J., Time to Decide? The Laws Governing Mothers' Consents to the Adoption of Their Newborn Infants. Tennessee Law Review, Vol. 72, p. 509, 2005. Available at SSRN: http://ssrn.com/abstract=843584)
A 2006 Evan B. Donaldson Adoption Institute study found that “most women struggling to make decisions about unplanned pregnancies do not have accurate information with which to make an informed choice about whether this is a reasonable option for them.” The report stated that a parent should have the right “to receive nondirective counseling to help her/him understand all of the options and resources available and the implications of the decision.” As the report pointed out, the concept of “informed consent” is legally mandated in some realms, such as before receiving medical treatments or participating in research studies. Some states also have informed consent laws that apply to women planning an abortion. The federal government has also mandated that tobacco companies provide information about the harmful effects of smoking in their advertising. However, currently only about half the states’ adoption laws mention counseling; some mandate it and other simply assert that individuals considering surrendering a child for adoption should be advise of its availability. (Safeguarding the Rights and Well-Being of Birthparents in the Adoption Process, The Evan B. Donaldson Adoption Institute, November 2006, http://www.adoptioninstitute.org/research/2006_11_birthparent_wellbeing.php)
"There remains no national professional organization for adoption specialists, no professional recognition of adoption practice as a specialty of any discipline, no established education and training requirements, and no regular professional meetings and forums for adoption ‘professionals.’" --L. Anne Babb, 1999. Ethics in America Adoption. Bergin & Garvey
* In many states, the same attorney represents the prospective adopters and the mother. In other cases, the mother's attorney, if she has one, is paid for by the prospective adopters.
According to the Evan B. Donaldson Adoption Institute, “In some states, attorneys paid by and representing the prospective adoptive parents also may represent the women (and men when they are involved) considering placing their children. This practice of dual representation raises acute ethical and practical concerns” (Birthparent Study, 2006) http://www.adoptioninstitute.org/publications/2006_11_Birthparent_Study_Executive_Summary.pdf p. 3
Retired New Jersey deputy attorney general William H. Mild III wrote: "It is the rare birthparent who can afford access to independent legal counsel in a private adoption. Only the adoptive parents have an attorney and it is their attorney who prepares all the documents. .. The attorney represents only the adoptive parents, not the birthparent(s) or the child at a time when independent legal counsel is urgently needed... It seems to me that a significant number of New Jersey adoptions, particularly private adoptions, are on shaky legal ground... Birthparents should not have been expected to navigate these labrinthine statutes without independent counsel. Without counsel, birthparents have virtually no way of knowing the long-term effect of their relinquishment and the post-adoption sealing of the court's file, incoluding the child's original birth certificate..." (Mild, William H. "Due process in adoption? Hardly," NJESQ, Vol. 1, #14, May 18, 2009.)
* "Open adoption" agreements are generally *not* legally enforceable by the surrendering parents.
* Unmarried fathers have little rights concerning adoption.
"States have almost complete discretion to determine the rights of unmarried fathers whose legal relationship to a child has not been established for the purposes of termination of parental rights or adoption proceedings. Many states have provisions for a father to voluntarily acknowledge paternity or the possibility of paternity of a child born outside of marriage and record the fact in a putative father registry. ...Approximately 24 states have established registries for this purpose. ...In 21 states and the Northern Mariana Islands, a person may claim paternity to a child by filing an acknowledgment or affidavit of paternity with a court." (CWLA, "The Rights of Unmarried Fathers," Current through June 2010.)
* Most states allow adoption advertising.
"Two States (Alabama and Kentucky) prohibit any use of advertising by any person or entity. Another 11 states prohibit advertising by any person or entity other than the state social services department or a licensed agency." (CWLA, "Use of Advertisers and Facilitators in Adoptive Placements: Summary of State Laws," Current through April 2009.)
* Few states regulate the activities of adoption facilitators.
"Fifteen states and American Samoa regulate the activities of intermediaries by limiting the compensation that they are allowed to receive." Nine States detail in statute the activities they are permitted to perform or the services required to offer. (CWLA, "Use of Advertisers and Facilitators in Adoptive Placements: Summary of State Laws," Current through April 2009.)
"We have no authority and no responsibility over [adoption facilitators] whatsoever."--Michael Weston, of California Department of Social Services, which licenses adoption businesses. Cited in Mirah Riben (2007). The Stork Market, Advocate Publications.
* The payment of expectant mothers' expenses by people who want to adopt is largely unregulated.
"In private placement or independent adoptions, the adoptive parents may pay some of the birth mother's expenses, particularly in the case of a pregnant woman planning to place her infant for adoption.... The actual dollar amount is usually limited to 'reasonable and customary.' ...Approximately seven states explicitly prohibit adoptive parents fro paying certain types of expenses. Costs such as educational expenses, vehicles, vacations, permanent housing, or any other payment for the monetary gain of the birth parent often are excluded. ...To avoid the appearance of 'baby selling,' laws in 31 states, American Samoa, the Northern Mariana Islands, and Puerto Rico disallow any person from offering, or any birth parent from accepting, a payment of money or anything of value in exchange for relinquishing a child for adoption. ...Connecticut, Hawaii, massachusetts, Minnesota, Mississippi, Nebraska, Rhode Island, South Dakota, Texas, Wyoming, and the Virgin Islands do not currently require an accounting of expenses to the court." (U.S. Department of health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families/Children's Bureau, Child Welfare Information Gateway, "Regulation of Private Domestic Adoption Expenses." State Statutes, Current through March 2010.)
"Adoption experts concur that we need to transform….adoption…. into a social service in which payments by adoptive parents play no part." --Elizabeth Samuels (Associate Professor of Law, University of Baltimore). 2005. "Time to Decide? The Laws Governing Mothers’ Consents To The Adoption Of Their Newborn Infants" 72 Tenn. L. Rev. 509
* Since 1999, every state and D.C. has passed laws legalizing infant abandonment at "safe haven" sites.
(Guttmacher Institute, State Policies in Brief, "Infant Abandonment", June 1, 2011). These laws make it legal to abandon a baby at a designated place, usually a hospital, fire or police station. Many organizations including the Guttmacher Institute (C. Dailard, "The Drive to Enact Infant Abandonment Laws: A Rush to Judgment?" 2000) and Evan B. Donaldson Institute ("Unintended Consequences: 'Safe Haven' Laws Are Causing Problems, Not Solving Them," 2003) have criticized these laws, which provide for no counseling or information to parents or children and preclude the possibility of future contact and/or exchange of medical information.
* The U.S. government does not regulate adoptions of children exported from the U.S. for adoption.
Nor does the government track how much of these adoptions occur. (Jill Snolowe, "Babies for Export," Time, Aug. 22, 1994)
* Adoption is a multi-billion dollar a year business.
"Regrettably, in many cases, the emphasis has changed from the desire to provide a needy child with a home, to that of providing a needy parent with a child. As a result, a whole industry has grown, generating millions of dollars of revenues each year . . . " --The Special Rapporteur, United Nations, Commission on Human Rights, 2003.
"[T]he private agency system is structured to maximize profit potential for the agency, while minimizing its legal exposure and responsibilities to those it serves."--Johanna Oreskovic (University at Buffalo Law School, SUNY) and Trish Maskew, (Ethica, Inc). "Red Thread or Slender Reed: Deconstructing Prof. Bartholet's Mythology of International Adoption." Buffalo Human Rights and Law Review, Vol. 14, pgs. 71-128.
"There are a lot of sharks out there, manipulating them in every way they know how, and the laws don't prevent that in most states."--Susan Smith, author of the study, Well-Being of Birthparents in the Adoption Process. Revised with Forward Jan 2007. New York: Evan B. Donaldson Adoption Institute. In interview on cbs5.com.
