Open Adoption, the Legal and Ethical Issues

01 Jan 2010 7 Comments

by heatherrainbow in fighting adoption systems, fighting false adoption perspectives

According to the Adoption Quarterly (2000), open adoption is a recent development in the adoption world that began in about the 1980′s. It is defined legally, as when a mother who has given birth, and may include the father of said child, voluntarily give up their parental rights, choose adoptive parents, and have the opportunity to receive updates, have phone conversations with the adoptive parents, as well as having visits and a relationship with the child and adoptive parents. Most open adoptions prior to the 1990′s have only allowed natural parents to choose adoptive parents. However, open adoptions with visits and ongoing contact are even more recent, since about 2000. The legal definition of an adoption also states that the signature by the natural parents is obtained without coercion or fraud, and not while in duress. (p. 45-64).

The way that I have come to know so much about adoption and especially open adoption, was through my own experience in April of 1998. I am one of the many women who were coerced and lied to. I was in the hospital room when a lawyer and social worker showed up, the day after my daughter was born. I told them I wasn’t interested in adoption, and they drilled me for hours about how it was the best thing for my child. They introduced open adoption, and while being completely exhausted and not knowing of my rights, they had me sign papers giving up my rights to my child. They promised an open adoption where I should have had contact with my child on an ongoing basis. I had met with the adoptive parents prior to my child leaving the hospital, and they, too, made these same promises that I would always be in my child’s life. After three years, the adoptive parents stopped sending me pictures and updates, and was the beginning of my open adoption being closed. There are few laws that are in place to enforce open adoptions, and the ones in place are not currently being enforced. I had set out to learn all that I could about adoption, for my sake and my child’s.

I have attended international conferences discussing how adoption affects all persons: natural and adoptive families, and the person who was adopted. I’ve attended the American Adoption Congress as well as Shedding Light on Adoption conferences. I have read countless numbers of books, attended meetings, talked on the phone, been involved in support groups as well as search and reunion. I’m also involved with state and national legislation. I’ve also counseled others in the beginning stages of adoption loss in legal issues as well as long term adoption issues.

The benefits of open adoption include that a child will have two families, one that raises them, giving them all the emotional, financial stability to thrive, the other offering still another important relationship, giving them ties to their family of origin and medical information. Due to the fact that most open adoptions have been closed up until about the year 2000, little data exists about how open adoptions actually affect the children. However, there are some preliminary studies. Journal of Adolescent Research (1999) has found that, “When the children were in their elementary school years, it was found that higher degrees of collaboration between the adoptive and the birth families predicted greater socioemotional development”. (p. 231-247).

In an open adoption, the adoptive parents have all the say in terms of how the child is raised, making all the decisions of the childs’ schooling, medical care, home care, social life, and all other major and minor choices, including setting the boundaries for the context of the relationship with the natural family.

The parents of the child are usually termed as birth parents, first parents and natural parents. Many find that the term “birth parents” as negating, implying their only purpose was to give birth to the child, and argue that their relationship extends well past their child’s birth, whether or not there is contact. Therefore, I will use the term natural parent and adoptive parent for clarification in the rest of this paper. For simplicity sake, I will also refer to the natural mother because the natural father is typically not involved, however are sometimes included if they have exercised their desire and rights to do so, and if the laws were honored.

The legal aspects of open adoption is confusing at best, and an absolute quagmire when looking deeper into it. The first reason is that despite more natural parents opting for open adoptions and ending the closed adoption era, there are few laws that actually protect adoptions staying open. According to D. Bruce Orwin, “Open adoptions, in which the adoptive parents actually meet and usually stay in touch with the birth parents, are becoming more common”. Also, he points out that because most states do not have laws addressing open adoptions, ” if birth parents want to enforce their rights under the agreement to visit the child, they may be left with no legal remedy.”

The first part of the process of open adoption is that natural parents, typically mothers, are given profiles of prospective adoptive parents by a licensed adoption agency, and they are given the opportunity to pick one of them.

The first option for the natural mother is to only choose the adoptive parents, and no further contact would be made between the natural mother and the adoptive family. The natural mother picks the family from a list of profiles, signs the papers giving up her legal rights to her child, and the adoption agency would work with the lawyer that represents the adoptive family, a court hearing would occur, and the adoption is then finalized in family court. There would then be no more contact, and the adoption would then be considered closed.

The next option of an open adoption is that the natural mother has the opportunity to meet the adoptive families from the profiles. After meeting each of the adoptive parents, she can then pick one, and request no further contact. The previous option’s process would then take effect.

The next option may include that the natural mother and adoptive parents agree to updates. This typically includes pictures and letters and usually will agree to a certain number of updates per year, but may not. Sometimes this is offered for a certain amount of time, but it can extend until the child reaches the age of majority. The updates may either be directly between the parties, be sent to a more discreet location such as a PO Box, or may go through the agency or lawyer who handled the adoption.

The child up until this point has adoptive parents which may or may not tell them they are adopted. This is the first problem with the legal aspects of open adoption, because it is not enforceable for either natural or adoptive parents. If either party moves or simply stops communicating, the open adoption is then considered closed, even if the other party wants it open. There are no lawyers or laws which can enforce that the other party comply, and is typically left at the discretion of the agency or lawyer to seek out the other party if possible.

The next level of open adoption is having phone conversations or visits. At this point, it would be really difficult to not explain to the child that they are adopted once they get to a certain age that they are comparing their family with other children’s families. The same legal problems can be problematic here, where either party can stop responding to the other, move, change their phone number, and then leave the other as well as the child without having that relationship. It is usually the adoptive parents who are responsible for closing the adoption, however there are rare occasions where the natural family makes this decision.

This leads to the ethical aspects of open adoption. Sometimes the natural mother has met the adoptive parents while pregnant. Adoptions can not be finalized until after the child is born, and therefore the terms “expectant parent” and “prospective adoptive parents are supposed to be used to define the parents. However, if language is used as “birth” or “adoptive” parents, it can add to the pressure of the natural mother. Despite adoption agencies stress that it is the natural mother’s choice, often they use tactics to encourage and coerce natural mothers into choosing adoption.

This can be a confusing and hard time for the natural mother, and if she is focusing on adoption, she may not have the ability to make the choice of keeping her child if she is uncertain. A mother’s body is going through many different hormonal changes. If this is her first time being pregnant, then she’s experiencing a whole line of emotions that are new to her. She is typically in a crises pregnancy, and usually single. If she is not preparing to keep the baby, as the months go on and she gets closer to her due date, she will be left on her own, where she was in the beginning of seeking help, and will feel she has no other option.

If she was meeting with the adoptive parents, they are usually also encouraging her to allow them to adopt her. If they are ethical and know and understand the difficulties the mother has, they will not pressure her, and will only encourage her to do what she feels is right.

In the experience of the adoptive parents with the agency who are wanting an open adoption, they are supposed to be educated on their roles, how to manage a relationship with the mother and child, how to set boundaries, and as with all adoptions, how to raise an adopted child. If they are unaware of how to do this, then it can make the meetings with the natural mothers difficult.

The other experience of the adoptive parent is the ones who don’t necessarily want an open adoption, but agree to it, because it is difficult as less natural mothers opt for adoptions as a whole. This creates a high demand and low “product” as some less ethical lawyers have stated. If they meet with the mother, promise visits and updates and move or end communication, then the natural mother loses the relationship that she had expected, as well as losing her child to people who ultimately betrayed her.

This leads to the intertwining of the ethical and legal issues of open adoption. When both parties are mature and capable of maintaining the relationship, which will have many challenges due to the nature of the situation, all parties will thrive. Or it could be that the contract had been fulfilled, and all parties are content with the outcome.

Many natural mothers choose open adoption, with the assurances that it is legally enforceable. If the adoptive parents close the adoption, then the natural mother has been betrayed by all parties. This leads back to the initial paragraph, where the natural mother in this instance had been coerced into believing that the adoption would be open and that she would receive letters or updates, have phone conversations or visits with her child. Even if a state had laws to enforce the adoption, typically a mother does not have the means to hire a lawyer, and the adoptive parents do have more money and more to spend on protecting their rights. Also, if the adoptive parents leave the state, the state that the adoption was finalized in does not extend to other states. Because the natural parents do not have any parental rights, the courts defer to the adoptive parents, the ones responsible for the child.

The same situation can also apply to the adoptive parents when a natural mother ends the relationship. Especially if the child starts having visits with their natural mother, and then it suddenly stops, the adoptive parents will need to deal with the consequences. This can include the child being depressed, angry, sad, mad, and can lead to a number of different problems. This not only cuts out the relationship of the natural mother, but potentially all other natural relatives. It also restricts any medical information from being given to the adoptive parents when any medical issues of that child may arise. While the adoptive parents do have the right to manage this child’s relationships, if the natural parents do not respond, they are in the same situation as the natural mother who wants that relationship, and that is that it is a rarity that a lawyer or the family court system is going to enforce an open adoption agreement for any party in the adoption.

There are several things that need to happen in order for this situation to be resolved. The first is that every person, the natural family and the adoptive family, need to be fully educated about the issues of adoption. They need to educate the adoptive and natural parents fully, to make sure they are prepared for an open adoption and make sure they are aware that they need to be completely responsible for the agreement that is made. They need to all be aware of the complications that could arise, make informed decisions as to how to remedy them. In addition, the open adoptions need to not be a coercive method to get a mother to place her child for adoption. If she wants to keep her child, she needs to be given the support to do so. If the adoptive parents do not want an open adoption, the agency and lawyers need to assist that adoptive parent with matching with a family that does not want an open adoption. This way, all parties can truly be on the same page. The only problem then, is if either party changes their mind, and would like the adoption to be open in the future. This potential opportunity should be offered as a possibility as long as the decision is permanent, and the child has consistency in the renewed relationship. In addition, because open adoption requires all parties to be responsible for that child, it could be that the natural parties do not lose their parental rights completely, but perhaps have them restricted based on the agreement. This way, because they are to be held responsible, they will have their rights to uphold in court, as well as the responsibility. In this way, if either party breaks the contract, the other can have a legal leg to stand on.

According to the United Nations Convention on the Rights of the Child Article 9 (1990) states:

“1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests. “

Even in cases of abuse and neglect, it is accepted that children need to have the option of having a relationship with their parents, if possible. Voluntary adoption should not be different. As long as the natural parents are interested in being responsible, they should have the opportunity and right to be so. While these responsibilities can be restricted, children do need to have contact with their natural families when and if possible.

All of the current laws need to be enforced. Adoption agreements are contracts, and no parent should be encouraged to sign papers within a certain amount of time, or while in duress. All laws need to be enforced and have consistency based on what works best for all parties involved on a federal level. For example, currently, many states allow a mother to sign away her rights while in a hospital immediately following the birth of her child. These states also tend to have a zero revocation period, meaning a mother can not revoke her consent for adoption. As stated before, many natural mother’s do not have the means to hire a lawyer, and therefore can not protect her rights, even if she was coerced or fraudulently signed papers thinking that open adoption was legally enforceable. Each state is different with how much time a mother can have to revoke her consent. States that are more lax on parents’ rights have advertisements throughout the country offering these open adoptions. If the mother is in another state, she likely does not have all of the information in terms of what her rights are. Because these women are in a crises situation often times, they are being taken advantage of by not telling them what there rights are. State laws for open adoption also vary from state to state. Some of them have open adoption enforcement, others do not. Most, even in the states that have laws to enforce open adoption still don’t actually enforce them.

Money needs to be taken out of the transactions of moving children from one family to another. Adoption is advertised as a charity situation for the benefit of the child, yet they charge tens of thousands dollars for each child that is adopted to the adoptive parents. Prices include both agency and lawyer fees, which the adoptive parent pays for. According to Adoption.com (2010), fees can range between $10,000 – $60,000 for a domestic private adoption. However, there is no cap, and agencies and lawyers can charge even more. These are typical adoptions in which there are no additional situations, such as a severe medical condition of either the natural mother or child or a contested adoption, where either the natural father attempts to enforce his rights, or the natural mother changes her mind. The fees can be limitless to the adoptive families if this happens. It not only is costly to adoptive parents, but it shows that these children have a literal price on their heads, as well as demonstrates that the legal system and agencies are representing the adoptive family and have a financial interest invested into meeting the needs of adoptive parents, not the child who is being adopted, nor the natural family.

According to the law in Virginia (2008),

“Although not required by law, the better practice is to always insist that the birth parents have an attorney separate from the attorney representing the adoptive parents. Ethics rules prevent one attorney from representing both sides in an adoption. To proceed with only one attorney and assert that the attorney only represents the adoptive parents is a dangerous fiction. Someone needs to explain the process to the birth parents and advise them of their rights. If the person giving the advice is the attorney who represents the adoptive parents, a potentially fatal defect has been built into the adoption. Under those circumstances, a birth parent could seek to overturn the adoption long after the placement based upon duress relating to the attorney’s conflict of interest.”

The only problem with this statement, is that at this time, there are no independent lawyers who only represent natural families, thereby creating a conflict of interest. Therefore, there needs to be a team of lawyers who only work for the natural families in situations of coercion or fraud, or revocation of their signature of the adoption for any other reason. Currently, some states allow natural mothers to revoke their consent, however, because lawyers don’t independently represent natural families, this is another law that is not enforced.

In addition to state and federal laws causing difficulties in open adoption, it has extended to international adoption as well. So far, there have been many adoptive parents from the United States who have adopted a child from another country. The natural parents may or may not have agreed to give up their rights, but because it is in another country, it has been difficult at best to know if these adoptions are ethical. Despite this, many adoptive parents have attempted to find their children’s natural parents. The adoptive parents need to contact the agency in their child’s country for the information, however often times the agency either does not have the information, or refuses to give it to them, stating that the natural parent does not want to be contacted. Some adoptive parents have hired private investigators in these countries and have found natural parents who do want pictures and updates, and these are some success stories. However, for many adoptive parents the search for the natural family is a long difficult one, and many never find them.

This all makes open adoption a very convoluted issue. It is hard to ensure natural parents and adoptive parents’ rights when current laws are not enforced and contracts are broken. All parties need to be assured that changes in open adoption are going to happen, and educate and assist the parties, at least until the agreement has been completed, or until the child reaches the age of majority. Also, natural parents need to have independent lawyers available to them, which they currently do not have. Otherwise, if they are being advised and represented by the lawyers who represent adoptive parents, even the adoptive parents of their child, then the lawyers will be biased on behalf of their clients. In terms of international adoption, there needs to be an independent party available to make sure that these adoptions into the United States are ethical, and put pressure on these agencies to document and share the information on the natural families.

References:

Grotevant, H. D. (2000). Openness in adoption: Research with the adoption kinship network. Adoption Quarterly, 4(1), (45-64).

Grotevant, H. D., Ross, N. M., Marchel, M.A., McRoy, R. G. (1999). Adaptive behavior in adopted children: Predictors from early risk, collaboration in relationships with the adoptive kinship network, and openness arrangements. Journal of Adolescent Research, 14, 231-247.

D. Bruce Orwin. Adoption Information Center: Open vs. Closed Adoption. Retrieved from: http://www.orwinlaw.com/prcenter_adoption.shtml?focus=topic&id=2

United Nations Convention on the Rights of the Child. 1990. 1(9). Retrieved from: http://www2.ohchr.org/english/law/crc.htm

Adopting.com. 2010. Adoption Costs. Retrieved from: http://costs.adoption.com/

McDermott, Mark T. 2008. Background of Virginia Adoption Laws: Overview of Virginia Laws (Q&A). Retrieved from: http://www.theadoptionadvisor.com/virginia.html