Last week, I wrote about birthmother expenses, and how the allowed expenses vary from state to state. Meanwhile, on one of my online adoption support lists, we’ve been discussing the ICPC. That’s the Interstate Compact for the Placement of Children. Because the United States does not have one set of laws governing adoption, each state has its own laws. The laws of the baby’s state and the laws of the adoptive parents’ state must be honored. So, the ICPC exists to make sure that, say Michigan tells California that the adoption is happening, and California tells Michigan “OK”.
The ICPC process means that the adoptive parents live in another state with the baby for anywhere from a few days to two months. It also translates into more money being spent, not just on the travel and lodging, but on the lawyers and others who work to make this process happen.
I believe there ought to be a law – or a set of laws – governing all private adoptions in the US. (I also believe there ought to be one set of laws governing adopting from foster care, but that’s another post.)
In some states, adoptive parents can use facilitators to help find an expectant mother. In some states, facilitators are banned entirely.
In some states, adoptive parents can advertise in publications, such as “College educated couple seeks healthy newborn of any race…”, etc., while other states don’t allow this. This is legal in Minnesota (where the movie Juno takes place), but not in Massachusetts.
Relinquishment periods vary vastly from state to state. In Alabama, birth parents can sign the relinquishment at any time before or after the birth. In California, a birth parent can sign after the birthmother is discharged from the hospital. (Wonder what happens in home births?) Many states simply declare “any time after birth” but what happens in practice varies based on the courts.
Once that relinquishment is signed, how long the birth parents have to change their minds varies drastically. In Missouri, relinquishment is irrevocable as soon as it’s accepted by the court, which must happen within three days. In South Carolina, relinquishment is immediately irrevocable. In California, the time period depends on the type of adoption. In New Hampshire, relinquishment isn’t irrevocable until after the final hearing. In Pennsylvania, birth parents have 30 days after signing to reverse their decisions. In Rhode Island, that time period is 180 days. Some states and agencies mandate “cradle care”. Newborns in these states go to families who care for them during the relinquishment period. The idea is to save the adoptive parents the difficulty of losing a child they’ve cared for, but who isn’t actually theirs. On the other hand, this deprives the baby and parents of crucial bonding time.
Then, there’s the matter of finalization. Sometimes, adoptive parents can finalize adoptions in their own states. Sometimes, they have to go back to the state in which the baby was born. More travel, more money, more time in the courts and other agencies. The process is terribly inefficient.
In Washington, DC, there is a cap on the amount that adoptive parents can pay in agency fees. Although this may have been passed with the idea of helping adoptive parent, in practice, agencies simply don’t work with couples who live in DC.
I’ve only been talking about states here. Within some states, different counties and judges may be able to impose their own laws. For example, our son’s birthmother initially lived in a county in which the judge simply did not allow out-of-state parents to adopt. The baby had to be in-state for 6 months without finding a family before he would allow the baby to leave the state. This was a very big problem for us. Fortunately, S’s other parent lived in a more adoption-friendly county. So, she moved.
S also considered having the baby in Kansas, because the consent can be signed 12 hours after the birth of the baby, and the relinquishment is irrevocable upon signing. (Yes, she wanted that, not us.) Ultimately, she decided going over state lines would be too stressful. It turns out, that’s not particularly legal in Missouri anyway. Because S was a resident of the state of Missouri, Missouri laws would apply.
Speaking of birth parents, only some states enforce legal open adoption agreements. Some states allow open adoption agreements, but they’re not legally binding. Sometimes these agreements are only binding in older-child adoptions, or in kinship adoptions.
Confused yet? I know I am, and I’ve been reading about this for almost 6 years.
A set of federal laws governing adoptions would have many benefits:
- Adoptive parents would be able to adopt from anywhere in the US, without worrying about inadvertently breaking laws.
- Birth parents wouldn’t be goaded, coerced, or forced to leave their own states to live in a more adoption-friendly state.
- Each party would only need one attorney.
- State agencies wouldn’t be bogged down in ICPC paperwork.
- Juvenile and family courts might be freer, depending on the specific laws.
- Adoptive parents might be able go home, instead of to a hotel, with their babies.
- Open adoption agreements might be enforceable nationwide.
- Agencies could work with parents from all states.
- Home studies wouldn’t be state- or agency-specific.
- Without the added layer of confusion, more people may be encouraged to adopt domestically.
- Greater standardization would increase confidence in the adoption system.
- Adoptive parents wouldn’t have to pick and choose the states in which they could adopt. For example, many adoptive parents don’t want to adopt from Pennsylvania, due to the long revocation period. If the period is the same in all states, that concern is invalid.
- Actual statistics about domestic adoptions could be gathered. Currently, there aren’t any official statistics about the number of domestic adoptions that take place. We don’t know, for example, how many adoptive parents and expectant parents are “matched” only to have the adoption fail.
I’m sure there are more benefits. I’m not sure that one set of adoption laws will ever come to fruition, however. Adoption really doesn’t get a lot of time on the national stage. President Obama is a supporter of adoption in general, but that doesn’t mean that adoption will be scrutinized as much as AIG.
First and foremost, Alabama is ridiculous for allowing pre-birth signing of the TPR. That, in itself, ought to be outlawed.
Secondly, the 30 day time period in Pennsylvania is somewhat misleading as it must be based on duress or fraud. (Or, in the case of a father who has not been properly informed.) So, as long as the adoptive parents, agencies, attorneys and others involved in the process have acted ethically, there is nothing to fear once the TPR has been signed in PA. I’m touchy when people bring up Pennsylvania as something “bad” when it comes to revocation timeline. In fact, it is one state that actually gives fathers who have been left out of the process just a small length of time. Just clarifying some things there that were left out and that people seem to misunderstand about PA.
But everything you have mentioned here is why so many fight for adoption reform. The complete lack of compatibility of those laws from state to state only creates confusion. That confusion only creates problem after problem. Something needs to change. That’s for sure.
This seems a good idea on the surface, but the ramifications are huge. Once you start federalizing state family law, there will be a huge backlash. For instance, I think that Utah only allows married heterosexual couples to adopt; Massachusetts allows gays to marry and singles to adopt. Which states’ laws are going to go into effect? Lawmakers would be nervous about the very real argument that if you’re going to make adoption equal across all fifty states; you’ll need to make marriage laws equal nationwide. We are already seeing the political upheaval that some states have created by allowing homosexual couples to marry.
This will be a political hot potato and states with more progressive adoption laws would probably end up restricting rights that birth families, adoptive families and adoptees have come to expect with their adoptions because of compromises in making a federal private adoption policy.
If this were to happen, it would be great to see all states providing original birth certificates to adoptees. I think that equalizing adoptions through US. states and territories would save American families thousands of dollars in legal fees. It may even be able to make open adoption agreements more enforceable. It would be nice to see things move in a progressive direction.
This would be a huge states’ rights issue, though, and may end up having to go clear through to the Supreme Court to pass….
Jenna: I agree that the Alabama law is insane. I didn’t know those specifics about Pennsylvania, so thank you for mentioning them. I also didn’t touch on birth fathers at all, and I should have.
colgoo: Yes, I left out the entire marriage equality issue, as it’s incredibly complex. The fact that agencies, counties, and states can discriminate is another huge issue. For example, many agencies discriminate on the basis of religion. My husband and I aren’t churchgoers, so that bars us from using certain agencies. Some entities discriminate on the basis of age, length of marriage, marital status, etc. Again, a huge issue.
[...] written about this topic before. I believe that the United States needs one set of adoption laws for private domestic adoption, one [...]