Adoption

There are several types of adoption placement procedures. Foreign adoptions are affected by the policies and procedures of the adoptees' countries. Agency placement and independent placement are governed by statute, as is adoption by contract or by deed. Some people adopt through illegal purchase of a child or arrange to have a child by a surrogate mother.

Foreign Adoption Because of the scarcity of healthy babies for adoption in the United States, many U.S. citizens are pursuing adoption of orphaned and abandoned babies from foreign countries.

Many U.S. families pursue the adoption of children from foreign countries. Byron and Cathy Nehls of Wisconsin are pictured with their adopted children, Carissa, from India; Marco Tulio, from Guatemala; Hannah, from South Korea; and Lucas, from Brazil.
AP/WIDE WORLD PHOTOS

Most U.S. parents with children in foster care do not relinquish their parental rights. Foster children in the U.S. may also be difficult to place because many are older and carry the emotional scars of physical or SEXUAL ABUSE.

Since the 1950s, U.S. couples have adopted thousands of Korean children. The number of Korean adoptions is declining, however, reportedly because the Korean government is uncomfortable with its reputation as a baby exporter. On the other hand, children from South America are being adopted in greater numbers by U.S. citizens, as are children from China, Romania, and Russia. In these countries, poverty, natural disasters, abandonment, war, and collapsed governments have resulted in an increased population of needy children.

Each country has different adoption policies regarding the age, income level, and marital status of prospective parents. Often, foreign adoptions are handled privately. Countries may allow children to be escorted to the United States or may require adoptive parents to come and stay for days or even months to complete the adoption paperwork. The costs of adoption also vary from nation to nation.

Agency Placement In agency placement of a child, the arrangements are made by a licensed public or private agency. Such agencies exist solely for the placement of children, and part of their responsibility involves a thorough investigation of the suitability of the potential adoptive parents. Such an investigation is ordinarily quite detailed and takes into consideration the background of both child and prospective parents.

Statutes generally provide for agencies that are operated or licensed by the government to act in an intermediary role between natural and adoptive parents. The method by which a child is transferred to an adoption or placement agency is by the execution of a formal surrender agreement that the natural parents sign. By surrendering a child to an agency, the parent relinquishes all rights to the child. The agency is then given complete authority to arrange for adoption. In arranging for an adoption, agencies must take into consideration such issues as whether a particular child is a proper subject for adoption, whether the proposed home is a suitable one, and whether the adoption is in the child's best interests.

Agency placement has three basic advantages: (1) It minimizes such risks as the adoption of nonhealthy children, the discovery of the adoptive parents' identity by the natural mother, and the natural mother's changing her mind about the adoption. (2) The suitability of adoptive parents is determined by a stringent investigation, which minimizes the risk that a child will be adopted by unfit parents. (3) Adoption through an agency minimizes fees incidental to the adoption.

One essential disadvantage of agency placement is that it involves a long, detailed process. The adoptive parents might be forced to wait for many months while they are being investigated as to their suitability. A second disadvantage of agency placement is that only a limited number of children are available for adoption through agencies.

Independent Placement In independent placement, or private adoption, a child is directly transferred from the natural mother, or her representative, to the parents seeking to adopt. This type of placement is ordinarily arranged by the natural mother's family or doctor. Generally, neither the natural nor the adoptive parents are thoroughly investigated. The adoptive parents often arrange to pay all medical bills incidental to the pregnancy and birth, in addition to legal expenses. Private adoptions are lawful in most states.

Like agency placement, independent placement has both advantages and disadvantages. Private placement facilitates the adoption of a child by parents who might otherwise be forced to endure an extended waiting period or who might be unable to find a child through agency channels because of stringent requirements or mere nonavailability of adoptable children. As with all adoptions, there is an inherent risk that the natural mother might change her mind and never complete the adoption procedure. With some private adoptions, the natural mother remains anonymous. With others, her identity is known to the adoptive parents at the outset.

Independent placement aids mothers who do not have financial resources, by arranging for the payment of medical expenses by the adoptive parents. Such a procedure can, however, lead to a black market if not carefully monitored.

Other disadvantages of private placements are the risks of adoption of an unhealthy child or of nonsuitability of the adoptive parents.

Some states prohibit lawyers from obtaining babies for adoption by clients under any circumstances. Attorneys, however, are ordinarily permitted to accept fees for handling the legal aspects of adoption.

Surrogate Motherhood During the 1980s, many infertile couples turned to SURROGATE MOTHERHOOD as an alternative to traditional adoption. A surrogate mother was paid a fee to bear a child conceived through ARTIFICIAL INSEMINATION. Once the child was born, the surrogate mother agreed to terminate her parental rights in favor of the sperm donor, typically the husband of the woman unable to have children. For public policy reasons, paid surrogate motherhood has been denounced as an unacceptable means of buying and selling babies.

The wrenching "Baby M" case proved to be the ultimate downfall of surrogate motherhood contracts. In IN RE BABY M, 109 N.J. 396, 537A.2d 1227 (1988), Mary Beth Whitehead entered a written agreement to bear the child of William Stern, whose wife, Elizabeth Stern, was unable to have children. Whitehead was to be paid $10,000 for her services. When the baby girl was born in 1985, Whitehead refused to give her up and fled with the infant to Florida. Four months later, she was apprehended by authorities, who gave the baby over to the Sterns.

Despite Whitehead's efforts to regain the child, the New Jersey Superior Court stripped her of parental and VISITATION RIGHTS and allowed the Sterns to adopt the baby, whom they had named Melissa. The decision had little to do with adoption policy but centered primarily on contract enforcement. The court ruled that Whitehead was obligated to honor her contract with the Sterns.

The New Jersey Supreme Court reversed the lower-court decision, declaring that surrogate motherhood contracts are unenforceable because they violate public policy. The Sterns were allowed to maintain custody of Baby M, although the adoption was voided and some of Whitehead's parental and visitation rights were restored. After the decision, most states passed legislation to prohibit surrogate motherhood contracts altogether.

Adoption by Contract or Agreement Generally, an adoptive relationship cannot be formed by private contract, either express or implied. Although adoption contracts are not usually considered to be injurious to public welfare, they are discouraged on the basis of the principle that a parent should not be permitted to trade away his or her child.

A court may, however, choose to treat a contract of adoption as an agreement to be enforced, with the outcome being equivalent to a formal adoption. The courts have upheld contracts between parents and institutions. In addition, in a number of states, an adoption contract between a natural parent and an institution that provides that the parent is not to be informed of the child's location is enforceable.

Since courts are not eager to deprive natural parents of the right to care for a child, adoption contracts are not enforced when they are in conflict with the welfare of the child. Some states provide that a contract made by one parent alone, absent a showing of clear consent by the other, is not valid. The procedure for adoption by a written declaration or deed is permitted in some states. Ordinarily, it must be properly recorded before the adoption will be valid.

Revocation A court will allow an agreement for the adoption of a child to be broken by a natural parent if the circumstances warrant it, such as when a parent was forced into an adoption agreement.

The court has discretion over whether to permit revocation of an adoption agreement. In such cases, the court will scrutinize the circumstances under which the parent gave consent as well as the parent's reasons for revoking the contract.