' [Birth Mother] First Mother Forum: Here's how to write good adoption law

Monday, February 13, 2017

Here's how to write good adoption law




We offer these elements as a starting point for those committed to adoption reform. Our goal is to avoid the unnecessary separation of families; however, if adoption is necessary, to protect the finality of placements while assuring the best possible situation for the child and the adoptive and natural families. Note: When we use mothers, fathers, or parents here, we mean natural parents and include mothers, fathers, and parents to be.

Pre-consent Information/disclosure
Jane Edwards
Parents must have information that enables them to make an informed decision about the future of their child. While ideally, the information should be provided by a person who has no connection to the potential adoptive parents or the adoption agency, it is not practical to require this. Mothers may trust their agency counselor and refuse to go to an "outsider." (It would be kind of like requiring couples to go to counseling before being married or requiring a second opinion before surgery.) The counseling would have to paid by the state and it seems unlikely cash-strapped legislators would appropriate money for this purpose. Of course, mothers can seek outside advice if they wish. Adoption reformers need to circulate information about adoption as widely as they can. However, the government cannot force someone to go to counseling who does not want to go.

The law can, however, require that parents be given specific information. Because circumstances change over time, it is best that a state child welfare agency establish by rule the information which must be provided to a mother, and a father, if he is involved before they may consent to adoption. Rule-making is an open process so advocates have the opportunity to weigh-in on the content of the rule. At a minimum a rule must include:
  • Information on support and resources needed to parent a child, availability of or referral to appropriate support services; 
  • Possibility of continuing contact with the child and the variables and options for such contact, the desire of the child for contact, and the availability of remedies to resolve issues involving contact; 
  • Importance of identifying the child’s father and the consequences of knowingly failing to provide information about the father; 
  • Grief and loss inherent in adoption; 
  • Right to counseling by a professional counselor not affiliated with the agency or, in the case of an independent adoption, the attorney arranging the adoption; 
  • Right to consultation with an attorney selected by the mother and paid by the agency or prospective adoptive parents; 
  • Time frames for when the consent becomes effective and when it can be withdrawn; 
  • Potential disclosure of the identify of birth parents to the child when he/she turns 18; and 
  • Voluntary adoption registry. 
Pre-birth contact with potential adoptive parents
Some contend that the law should prohibit contact between parents and potential adoptive parents (PAPS) before the birth of the child because knowing the PAPS will influence parents to give up their child so as not to disappoint the PAPS. In many cases it is not possible to keep the PAPS apart before birth because the parents and PAPS find each other on their own through family relationships, churches, employment, and so on.

It is also not wise. If the parents do not start interviewing and assessing PAPS until after the birth, the baby will be placed in foster care until the PAPS are selected which can take several months. Alternatively, parents may feel pressured to select the first PAPS so that their baby has a home. When parents start the selection process before birth and are not under a time pressure, they may discover they don't much like any of the PAPS and decide not to go through with an adoption.

Consent: Contents, When signed, When effective, Withdrawal, Revocation

A consent must include an acknowledgment that the parent has been advised of the information and disclosures set forth above.
  • A consent may be signed any time after the birth but is not effective for 72 hours after birth. 
  • Once signed, the child may be placed with the agency or prospective adoptive parents. 
  • The petition for adoption and related documents may not be filed in court until after the 72-hour period. 
  • A consent may be withdrawn before the petition is filled, or within 10 days, after the 72-hour period. 
  • If the consent is withdrawn, the child must be returned to the parent who withdraws the consent. 
  • After the 10-day period, the consent may be revoked only if it did not comply with the above provisions or for fraud or duress.
Thus, a mother has at least 13 days before her decision becomes irrevocable. This is a minimum. A mother can delay signing or refuse to sign altogether if she wishes.

It's not desirable to require a longer time before a mother may sign. Unless the mother is prepared to take the baby home, the baby must go to foster care. Some mothers disappear upon leaving the hospital. If she has not consented to adoption, the baby must stay in foster care until the mother can be located and her rights terminated.

Some mothers want to sign immediately after birth. These mothers assert that they are proud of their adoption decision and want to memorialize it as soon as possible. They don't want the government to tell them what to do. When I wrote a bill introduced into the Oregon legislature a few years ago, these mother (perhaps organized by an adoption proponent) wrote letters to their representatives outraged that anyone would try to interfere with their decision.

Notice of adoption; Action to set aside an adoption
Consenting parents must be notified in what court the adoption petition was filed and the date the judgment of adoption was signed by the judge. An action to set aside an adoption must be brought within one year after the judgment of adoption is signed.

After they consent to adoption, natural parents are out of the picture legally. Some adoptions don't take place at all, usually because the child has disabilities. In one Oregon case the state agency misplaced the file and the child remained in foster care until he was 18. If the adoption has not occurred, the parents need to have the opportunity to withdraw their consent and take custody of the child. Parents also need to know where the adoption took place in case they want to contest it or obtain court records when the child turns 18.

  • A father married to the mother has the same rights as the mother.
  • An unmarried father must receive notice of the pending adoption and be given the ample opportunity to participate in or contest the adoption and have custody of the child if:
    • He has provided or offered to provide any assistance to the mother during the pregnancy or the child after birth; 
    • Lived with the mother or child; or 
    • Registered with the putative fathers’ registry to be established and maintained by the State Child Welfare Department. 
These provisions protect fathers who may have an interest in their child. At the same time they allow an adoption to proceed if the father is not be known, cannot be located, or has made clear he wants nothing to do with the child. Fathers who are notified about the pregnancy can protect themselves by registering with the putative father's registry although we recognize that this is not practical since few know about the registry.

In some cases mothers seek to cut fathers out by going to a state that does not protect fathers' rights. This can be prevented by enacting similar laws in every state.

Open adoption
  • An open adoption agreement may be signed before or after birth. It must be filed with the petition for adoption and becomes a part of the judgment of adoption
  • The agreement may not contain provisions allowing the adoptive parents to nullify the agreement if a natural parent contests the adoption.
  • If a party fails to abide by the agreement, the parties must try to resolve their differences through mediation if available. 
  • If mediation is not available or is unsuccessful, a party may file a court action to enforce the agreement. If the natural parent prevails, the parent shall be awarded attorney fees to be paid by the adoptive parents.
Post Placement Support
Parents are entitled to at least three counseling sessions with a licensed counselor of their choosing at the adoptive parents’ expense within a year of consenting to an adoption.

Birth Certificates and Court Records
Original birth certificates and court records must be available to adult adoptees without a court order. Court records must be available to natural parents who consented to the adoption without a court order.--Jane Edwards, J.D.

*Safeguarding the Rights and Well-Being of Birth Parents, Donaldson Adoption Institute (2007) p 9

**Standards of Excellence for Adoption Services, Child Welfare League of America (2000) p. 6

***Elizabeth Samuels, "Time to Decide? The Laws Governing Mothers' Consents to the Adoption of Their Newborn Infants," 72 Tennessee Law Review 509 (2005) p. 72

A shortened version of this article first appeared in The Beacon, a publication of the American Adoption Congress, February, 2017.

Edited by Susan Wadia-Ellis
5.0 out of 5 starsEye-opening views of adoption
By Courtney L. Lewis on February 7, 2001
Format: Paperback
This compilation of essays - beginning with birth mothers, then adoptive mothers, and finally the adopted daughters - goes above and beyond the usual "magazine style" articles on the quirks or perils of the adoption process. I was incredibly pleased and impressed by the diversity of Wadia-Ells' collection. Lesbian women, multi-racial families, and a variety of socio-economic backgrounds all lend to this book a wealth of perspectives. The contributors are thoughtful, often in emotional pain, honest about their experiences, and each one is a talented writer.

The one thing that did emerge most clearly from this work was the overall tone that adoption was an incredibly painful thing for all parties involved. The more positive essays were from the adoptive moms --birth moms and adopted daughters were obviously struggling to make sense out of their experiences. I do not regret for a moment reading this wonderful collection, but at the same time I seriously wonder whether adoption is something I'm able to emotionally tackle after experiencing Wadia-Ells' book.

The Family of Adoption: Completely Revised and Updated
By Joyce Maguire Pavao
5.0 out of 5 stars a powerful little book for EVERYONE concerned with adoption
By A. Schauer on February 4, 2001
Format: Hardcover Verified Purchase
This extraordinary little book, with its carefully chosen anecdotes and clear, direct message, is the best book available about adoption and being adopted. It changed the structure of life in my family, and I give it to family members, teachers of my adopted children, and anyone else who is looking for clarity in the complex world of adoption. When you finish reading you will understand loss in adoption, you will understand what Dr. Pavao means by the "Family of Adoption", you will know how to listen better to your adopted children so that you can really hear what they are telling you, and you will be a better parent, teacher, grandparent, or friend. Buy this book and treasure it! I have read almost all adoption books published in the last ten years in the USA, and this is without question a beautiful, powerful and poignant work, and one of the best.

David Copperfield (Penguin Classics)
By Charles Dickens
5.0 out of 5 stars19th-century binge-watching
By Jason A. Miller on February 19, 2015
Format: Kindle Edition Verified Purchase
Why Not? David Copperfield is the ultimate orphan.
"David Copperfield" is a richly rewarding experience to read; while there are lots of soap-opera twists, alternating with moments of high comedy and profound tragedy, the writing style is also very compelling, with Dickens being a master of comical or cynical observations; it's laugh-out-loud funny in many places. Dickens was also interested in the law, which is how I make my living; his sardonic observations on the state of 19th century British jurisprudence are accurate and funny; the profession really hasn't changed all that much in the past 150-plus years, has it?


  1. I think much of these requirements are reasonable to aim for. I do think the only way birth parents and adoptees will be protected is by writing it into the law. I also think some of the financial benefit to the adoption agencies has to be removed in order to discourage exploitation of all the parties involved. These are excellent suggestions.
    PS (Please don't include this comment when posting it) - but some of the printing on this article is messed up. Sections of the post are printed over other parts so that it is difficult to read.

    1. Barbara and everyone: We can not edit comments. It is either post as is, or not, and yes we soon say how messed up the type was--it was unreadable! It looked fine in the beta..anyway, it's fixed now. Thanks for letting us know.

  2. I think 13 day sis not a long enough legal period until permanent termination of parental rights. I think that 30 days would be more reasonable. That would allow time for reflection, counseling and the settling down of hormones. And the mother deserves some sort of support during that period if she is financial or otherwise vulnerable.
    Some sort of agreement of objectives to pursue federal legislation would be ideal. How is it possible that we live in a world where there is so little regulation with regard to the handing over of a human being! But then, I don't even recal signing anything in 1973, let alone receiving any advice, or counsel or even a kind word to encourage me.

    1. Pamela, a mother can have 30 days if she wishes. The 13 days in only a minimum.

      I agree, It is shocking that a human life can be dramatically altered with little regulation.

      Federal legislation would be difficult. Adoption like most areas of the law is a state matter. Congress is limited by Article I of the US Constitution over the subjects it can regulate. That's why it is important that reform advocates develop a model law which can be sold to state legislators. This can happen only if natural parents, adoptees, adoptive parents, and the industry work together.

  3. I would still like to see more information made available to the general public concerning the trauma of separating mother and child at birth and the stress caused to the mother and child to even have to be considering a possible separation at birth. Recently the NY Times has published articles about "attachment parenting." Unfortunately these articles are geared toward early childhood and rarely describe the intricate physiological intricacies of the latter stages of pregnancy. It still seems we have a societal context where mothers are offered "adoption" as if it were an option worthy of considering along with raising one's own child. I have found myself not looking at some "birthmother" websites because the comments of recently relinquishing mothers seem so ill-informed, frustrating and heart-rending all at once. Natural connections are better than altered connections. Period.

    1. D--I have been trying to get an article published on exactly what you say--the trauma of separating mother and child at birth and the stress following. I am still trying, not giving up. But somehow we are a subject that editors do not find of general interest--after all, I am sure that attitude is--why didn't you use birth control, why didn't you have an abortion? what did you expect? But I feel as if I have written a tract about abolition and am trying to get it published in a slave state before the Civil War.

    2. Lorraine - I think that is an apt metaphor (abolish & slave state before Civil War). Even amongst many of my most ardent feminist associates, the issue is overlooked as a non issue. Though not all - I have one feminist activist friend (who is even non heterosexual) who gets the politics of the issue immediately and even went so far as to criticize women who are obsessed with the acquisition of having a child when they are unable, for whatever reason, to conceive. She is such a political and social justice creature that she is unburdened by the subjective 'necessity' of adoption. A rare person, however.

    3. You'd think that feminists could figure out that taking a baby from a single mother and giving it to a married couple or a more affluent person was playing right into male supremacy. But no, their desire for someone else's baby blinds them to what is really going on.

  4. What do you think of the proposed repeal of a Tennessee law dealing with custody of children conceived by artificial insemination? The law currently gives equal parental rights to both members of a married couple when a child is conceived by artificial insemination and one parent isn't the biological parent. Repeal of the law is being viewed as an attack against same-sex couples, though it would affect heterosexuals as well. If the law is repealed, the spouse that is not a biological parent would not appear on the child's birth certificate. If the couple divorces the biological parent would have more rights than the non-biological parent.

    This forum has argued that when a lesbian couple splits up, custody ought to be awarded to the biological mother.


    1. I got ensconced with a forum of LGBTQ folks who were livid that a law in some state was removing LGBTQ people from being listing on the OBC as both being the parents. When I raised the specter of the rights of the child and that it is wrong to do that even in cases of heterosexual adoption, people screamed discrimination. I assured them that I am all for equal rights for LGBTQ and that they should not strive to be as ignorant as heterosexuals who pull this shit. In other words - two wrongs don't make a right. But all they could see was discrimination against LGBTQ. Interestingly, one individual pursued the conversation with me. I spoke of the OBC movement and the fact that the birth certificate's purpose is to record the events of the birth, not to please the people who wish to parent. I was surprised when some in the forum said there should be a different document for that. WHAT?!! I mean, doesn't the title of the document say it all - BIRTH certificate. Anyway, that one person followed my logic through and genuinely moved to reflect on the whole affair.

    2. I would not write of the non-bio parent entirely in a custody dispute. I think that the status of a parent as a bio-parent should carry some weight in the judge's decision.

    3. These people think a birth certificate is a certificate of title.

    4. I take no issue with parenting rights. It's the enTITLEment rights that are so egregious. Of course, people get incensed through other filters and can't see the forest for the trees. I get that. Which is all the more reason why more education is need, and not less.

  5. This would be an improvement, even in states not starting with U? I'm shocked...

  6. I completely disagree with you about pre-birth matching. It is coercion, plain and simple. It needs to be abolished.

  7. Any update to adoption law needs to include a provision that the adoptee, upon attaining age of majority, has the right to ANNUL his/her adoption.

    We are the "commodity," ownership of which is transferred during the adoption, yet we have no say in the transaction. At present, the only way to get out of the adoption contract is to be re-adopted by another adult. (This is like saying you can only get divorced through the act of marrying someone else. Does that sound at all fair?)

    Not all adoptees end up in good, loving homes -- far too many of us are victims of abuse by the people who were entrusted to care for us -- and it's an additional slap in the face to know that we have to be legally tied to these people for the rest of our lives.

    We had no control over the events that shaped our beginnings, we MUST be allowed to have control over our futures.

    1. That would be fine with me. The adoption proponent community might oppose it. Children raised by their natural parents don't have the right to annul the relationship even though they did not choose their bio parents.

      On the other hand, perhaps there wouldn't be opposition. There's really no benefit for adoptive parents to maintain the legal relationship with their adopted children. Some adoptive parents might be happy to shed their adopted child.

    2. Apples and oranges. Children raised by their birth parents aren't taken from their families and given to other people, requiring a piece of paper to legitimize the relationship. And non-adoptees CAN annul the parent-child relationship if they want to. All they have to do is what I've been told by numerous attorneys -- just find an adult to adopt them.

      I have no doubt that the pro-adoption folks would have a major hissy fit about this. Because the party line is adoption creates "forever families", and it's always wonderful. (Though the reality is, of course, far different.)

      The obvious difficulty is exactly what to do post-annulment. What if the birth parents don't want to be parents again? What if the adoptee just wants to be UN-adopted, not legally reunited? It might require some kind of legal "limbo" where a person is no longer adopted, but also not part of his/her original family.

      I don't know. I don't have a good answer. I just know that it's an option that needs to be available.

    3. Look, if any adoption is revoked/annuled/declared invalid, the adopted person usually regains the legal status they had before the adoption, be that the child of dead parents, the child of unknown parents, or the relinquished child of one or two known parents...
      In case of known living biologicals, who do not want to be your family, so what? They forced family you do not want anymore on you too, so it is a fitting punishment, but they are free to make a will to disinherit you, they are free to keep your existence a secret from your (half)siblings, so you can live happily ever after with a normal, but estranged, family of which the surviving members may never have heard of you... The restoring of legal recognition of family ties is NOT the same as reunion, but again becoming who you have been before you were adopted.

    4. Parental rights and responsibilities end with adulthood, so I cannot see why there should be a fuss over annulment of adoption.
      Bio-families estrange themselves, usually quietly, and without legal annulment. They write wills expressing what they want done with their assets. they arrange their lives accordingly and relatives soon learn that the person does not want contact.
      Word gets out to the family that "relative xxx" has left the family.
      I have a cousin who has not spoken to the family in decades. It started with a feud between him and his sister(over 50 years ago) and grew from there.
      He does not attend any family functions. I think he even missed his parents' funerals.

  8. I was rereading this post and had some thoughts I wanted to say. I'm not sure they are appropriate for this post, but they are about law, so maybe I'll express my opinion here. Some time ago I asked Jane about the property my adopted sister owns. What was really on my mind was not the property especially, but what I was really searching for was justice for adopted people. A person who adopts "as if the child were their own" in every legal sense shouldn't be able to make decisions about the adopted child just because he or she is not their own. I wished I could help others through my situation, which I probably can't without undue expense.

    Anyway, I feel that many of the problems with adoption need a legal remedy. It is valuable to make people aware, but until some things are challenged in court and made the law, injustices and unnecessary adoptions will continue.

    Yesterday another issue came to my attention. This one doesn't involve me. I am taking a tax accounting class right now. There was a case (Perez v. Commissioner, Tax Court 2015) pertaining to someone donating eggs. A donor went through all the painful things to donate eggs and wanted to claim a personal injury exclusion from tax for the payment instead of paying tax on the $20,000 she got. The whole class discussion revolved around whether the $20,000 was personal injury or payment for services rendered. I thought the case should be judged based on the substance-over-form doctrine which states that the taxabality of a transaction is determined by the reality of the transaction, not some perhaps contrived appearance. Nobody agreed, including the professor who is a JD CPA. In my opinion, she shouldn't be allowed to take $20,000 for in effect selling her children. What do you think? Am I right? I find it very upsetting that people do this and it is so easily accepted and there is no law preventing something which will later harm both the donor and the child.

    1. Barbara, I'm not sure what you mean by this sentence. "A person who adopts 'as if the child were their own' in every legal sense shouldn't be able to make decisions about the adopted child just because he or she is not their own." What change in the law are you suggesting?

      The tax issue is interesting. I don't know much about tax law except enough to do my own simple return, but I agree with you. The egg donor should not be able to take a "personal injury" deduction and her $20,000 should be treated as taxable income. We can't stop the egg donation industry but surely tax paying citizens should not have to subsidize it.

    2. How cow--a woman sells her eggs for $20,000 then claims it's tax deductible? First of all, selling the ova of future children should be illegal. Personal injury ought not to be something you decide to do yourself--for cash. I want to throw up.

  9. Maybe I wasn't too clear on that. My adoptive parents gave everything to their natural child because she was theirs and I inherited nothing basically because I wasn't theirs. I'm really not hurting at all though, not now. I've made my way, I bought my house myself and I have a good life. But it bothers me that an adoptive parent who is supposed to treat the adopted person equally can get away with shafting the adoptee. That's the deal when they adopt isn't it? The adoptive parent gets all the tax breaks of a natural parent plus some, and the child is supposed to be treated "as if" the child is their own. But they don't, rather often. In my case this was a slap in the face when they died. Other adoptive parents don't wait that long. If they find the adopted child bothersome they sometimes "rehome" the child and many do other things they won't do to their own child. I just think if an adopted parent knew when they adopted that they can't get away with disinheriting an adopted child, they might take their commitment a little more seriously. At one point I entertained the idea of challenging this in court to set a precedent to help others, but I think it would be too expensive and I would lose. I don't know if I've expressed my opinion in a way that makes sense, it's pretty hard to do in writing. I'm not looking for pity about this.

    As for egg donations, or sperm donations for that matter, yes, it is an industry and you and I can't stop it, but I think it should be stopped. I have been researching my family history and just today in fact came across a relative who was a sperm donor child. In fact, I talked to him this evening. He found out that his sperm donor father had fathered around 500 children! All for the money to get himself through medical school. In my opinion this should be stopped. You can't stop someone from donating sperm or eggs, but IF they become human beings, I think it should be viewed as selling a child and I think that should be not just taxed but prohibited just as paying huge sums to adopt should be stopped. Why this society is so callous about this I don't understand. All of society suffers if some of the people suffer. I as an individual can't do anything about it, but when you see all the harm this does I don't know why people tolerate it.

    1. Barbara,
      I have heard many stories like yours--sometimes it is the family jewelry or other property that has been "in the [blood line] family" that is the source of argument after the adoptive parents died. That is what happened to Florence Fisher, who really jump started the adoption reform movement in the Seventies. She heard her adoptive relatives talking about how they should get the jewelry because, you know, Florence was adopted. Your case is outright cruelty by your adoptive parents.

      On the other issue, the number of sperm donations went practically down to zero in England after it became illegal to sell your sperm. It had to be a true donation without cash payment. So there it exists in very small numbers, but nothing like the booming industry it is in this country. The whole industry makes me ill, and on ethical, moral grounds it ought to be outlawed. It really is a form of child selling.

      Thank you for commenting.

    2. Barbara, it's so hard to imagine adoptive parents being so cruel.

      Regarding sperm donors, I understand ethical agencies limit the number of times a man can donate. Of course nothing keeps him from going another agency. I have to think what little regard these guys who donate multiple times have for themselves. Selling their DNA for a few dollars. And how insensitive they are to the needs of those they help create.

  10. Thanks Jane and Lorraine for your supportive comments.

    I especially agree with Jane's comment on how "what little regard these guys who donate multiple times have for themselves." This brings to mind something that happened to my son, Matty, who was living in Germany a year ago. He found a woman on the internet he was chatting with who lived in Norway, who wanted him to come to England to meet her, paid for by her. We later figured out what she wanted (and she finally admitted it). She was married and wanted a little fling, reason being her husband couldn't get her pregnant. We found out that in the Scandanavian countries it is very hard to get a sperm donor, and the child has the right to know who the donor is. So she and her husband figured she would just have a quick fling and they could get a child and a foreigner would have no standing in Norway, where she lived. She sent him packages of stuff nearly every week, love letters, even after he moved back here. He has a beautiful Nordic hand knitted sweater with a knitted snake on it. We had to block her phone calls. It was almost funny except I was horrified at the idea and afraid my son was going to succumb to this. He told me he didn't fall off a turnip truck. It still worries me because she occasionally gets through.
    I don't know how that 500+ guy could do such a thing or if his mother knew. The agency that did the sperm collections was the University of Kansas. So much for ethics. I would be interested in knowing more about how England outlawed sperm donations for money.

    1. Barbara,
      What a story about your son and the woman after his sperm! It may be true all over Europe that it is hard/illegal to sell sperm as this country does willy-nilly.

      As for the horrifying numbers of children fathered by one man, there is a website devoted to connecting siblings, and many have connected who have the same father--like over a hundred that I remember hearing last time.

    2. In PBS special about gay parents I saw over 10 years ago, one woman said she dispensed with a sperm bank and just picked up a man she thought would have good genes and spent the night with him. A baby nine months later.

      And remember the film "The Big Chill" where the characters get together for a college reunion. One woman is there to find a man to sleep with so she can get pregnant. She does get his wife's permission.

      I've never heard of a woman going to the lengths the woman did with Barbara's son, but I suspect that similar things are not all that rare.

  11. One other comment I'd like to make about your comments is yes, it was very cruel and made me angry for a long time. However, in the end I was the lucky one. My adoptive sister is still living in the house she inherited, living with somebody she won't marry for fear he might get some of what she inherited, and has no children either. I, on the other hand, learned to make my own way, learned the hard way the importance of forgiveness and I have four beautiful children and four grandchildren and a house as nice as the one I didn't get. I'm much happier and live a larger life than she does. So who won on that one? It was me for sure. But I wish I could save others from the grief I went through and the need to forgive if I could.

    Thank you Jane & Lorraine for your supportiveness and for your support of all the people on this site!




