Fairness in Adoption?

Wisconsin adoptive parents and lawmakers are seeking to make Wisconsin more "friendly" toward adopters by increasing pressure for parents considering placing their children for adoption.

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The Wisconsin Adoption Fairness Act seeks "to bring Wisconsin in line with other states, many of whom don't require court hearings and allow mothers the option to relinquish rights after 72 hours."

"Allow[s]" or pressures mothers to do so within a narrow timeframe and without a judge's oversight?

Unbeknownst to mothers considering adoption, these "deadlines" are minimums. A mother can take her baby home and place it for adoption months or even years down the road. But she is told of the time limit as if it were a mandate, often being given papers to sign while still in the hospital.

Wisconsin currently allows a mother 30 days to relinquish her rights before a judge. Some states, such as Utah, require only 24 hours before a consent-to-adopt can be signed and two states allow for pre-birth consents. State laws regarding consent times are available on the Child Welfare Information Gateway.

"It really is something that's meant to make Wisconsin a more adoption-friendly state," says WI Rep. Andre Jacque. The proposed legislation would make adoption more "friendly" and "fair" to those adopting but not so the mothers and fathers trying to make an informed decision after the birth of their child.

Physical and Emotional Factors

Some women, even experienced mothers, are unaware they are pregnant because they continue to menstruate for several months into the pregnancy. Other expectant moms are in such states of confusion, shock, fear and anxiety at the thought of being pregnant that they enter into a state of total denial. Some remain unaware until they go into labor. Thus many mothers considering adoption have far less than nine months to think about their options and the lifelong effects of each choice for themselves, their child, siblings, grandparents, etc.

At three days after birth - the time proposed by Wisconsin lawmakers - mothers who had a surgical birth are still recovering from the anesthesia and have barely gotten an opportunity to see or hold the child about whom they are being asked to make a lifetime decision.

Another factor is postpartum depression (PPD), a physiological event due to the swiftly changing hormone levels after childbirth experienced by approximately 11 to 20% of birthing women each year in America, according to the CDC.

Any mother faced with the devastating possibility of losing her child is under tremendous additional stress, grief and anxiety. Many mothers are pressured by family and boyfriends, even husbands, to abort the pregnancy. Young expectant mothers often fear telling their parents out of embarrassment, others receive no assistance, and some are faced with the possibility of homelessness if they bring a child home. The father of the child may or may not be in the picture. This adds another level of stress, anxiety and depression.

There are precious few unbiased counseling options available to women in this crisis to tell them that relinquishing parental rights is a permanent solution for what is often a temporary problem and that adoption holds no guarantee of a "better" life, just a different one.

Instead, once a mother-to-be contacts an adoption agency, they are often "counseled" by employees or consultants of such businesses whose job it is to obtain the mother's signature before she has time to re-think or get support from family members who may be in the dark about the possibility of adoption. Many mothers report being fed only positive messages about adoption and are given no help or guidance in maintaining custody of their child.

Adoption attorneys and agencies often relocate expectant mothers out of state, isolating them from family, or simply place her in a state with laws more favorable to the agency's desired outcome. Some agencies encourage mothers to list the father as "unknown" and thus exclude him from all decision-making.

Whose Child? Whose Rights?

The most important thing to consider is that the baby a mother has carried, labored and birthed is her baby. She is the child's mother and has all legal rights until they are revoked or she voluntarily relinquishes them; the key word being "voluntary."

These are not mothers accused of negligence or abuse. They have done nothing wrong and their babies are in no possible danger. Why set any time limit at all?

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The decision to voluntarily relinquish one's rights to their child - without which no adoption can proceed - is catastrophic. It is a decision many mothers regret for life. Others say it changed every relationship and nuance of their life forever after. For the baby, her decision is life-altering with immeasurable consequences, positive and negative.

Why should such a monumental decision affecting many lives for generations to come be rushed? What is the urgency? Why should time supersede being assured that the best choice is being made for mother and child? It is, after all, voluntary and should be an informed choice.

The justification for rushing a mother to sign over her parental rights is based on inaccurate theories, beliefs and fears about bonding. Children who live in orphanages or experience multiple foster placements can suffer from lack of one-on-one care that can be detrimental to their emotional well-being. Truth is, however, that all adoption is a trauma for children of any age, even newborn infants. Fetuses become accustomed to the sounds, smells and rhythms they experience in the womb and any separation from that is traumatic.

Consistency of caretakers is optimal, but there is no need to force a mother into deciding within hours or days of birthing. Her bond with her baby will serve it well, and not cause undo harm. She may choose to breastfeed, which is beneficial for the child.

Truth is, the rush is to prevent a change of mind. The shorter the time period for a mother to sign over her rights, the less possibility of an impending transaction falling apart and the facilitators losing payment of their fee. Lawmakers are persuaded by industry lobbyists that it is in the child's best interest to be placed as quickly as possible and state by state shorter time limits are enacted. In Wisconsin, they are not pretending it is for the children's sake, but for the adopters.

Pre-Birth Matching

The pressure on a mother to sign over her child is aided and abetted by the ill-conceived and coercive practice of matching of expectant mothers with prospective adoptive parents (PAPS). This devious and predatory practice - crafted by the industry profiting from adoption - has crept into normative adoption practice since the nineties.

Presented to expectant moms as giving them more "control" by choosing who adopts their child, pre-birth matching instead can destroy a mother's confidence and self-determination. The insidious and invasive practice includes adopters attending OBGYN visits and being in the delivery room, creating an "unhealthy, unequal relationship" analogous to "funeral directors and cemetery salesmen being allowed to approach families of terminally ill patients" - an unheard of immoral and unethical practice. Yet we allow adoptive prospective parents to prey on vulnerable women.

I wrote of the dangers of pre-birth matching in American domestic adoptions in my 2008 book, The Stork Market and again in 2013:

On the one hand are people of means with legal representation, and on the other side is a distraught and hormonal mother or couple in crisis, lacking financial wherewithal and legal counsel, who potentially have something the other wants desperately and is willing and able to pay for...A potential powder-keg.

The opportunities for exploitation are enormous. Promises, hopes and expectations are created and built upon as time goes on.

These totally imbalanced yet enmeshed relationships hold possible harm for all of the parties. Both prospective adoptive parents (PAPS) and mothers have reported feeling manipulated by the experience.
PAPS develop strong feelings of entitlement by investing emotionally and financially in the baby-to-be. Paying "living expenses" for the mother - another common practice - increases the expectations of the PAPS who feel they are paying for results - a baby.

The mothers describe feelings of obligation and indebtedness. Some feel coerced or brainwashed as they are exposed to the strong desires of the PAPS who often share with the mothers their long and difficult journey with infertility. The new mom is aware how devastated the PAPS would be if she does not fulfill their dreams by handing over her child to them. PAPS begin to think of the unborn child as already theirs and some expectant moms are told to think of the child they are carrying as "theirs" not "mine" as if they were paid surrogates.

The industry cleverly orchestrated this scenario making it almost impossible for a mother to decide to parent her own child and disappoint those who have been so caring to her. All of this violates the intent of the laws against pre-birth contracts that exist in all states but two in order to prevent coercion and baby selling and in recognition of the fact that no one can make a decision about an entity that does not yet exist.

Adoption Policy Makers

The fact is that adoption practice is not set by experts in child welfare or social work. The adoption industry is totally self-regulated with some restrictions on international adoption but no national government oversight for domestic adoptions, even those that are interstate. Adoption agencies - even those which are not-for-profit - are businesses with overhead and salaries to pay.

The guidelines are set by these entrepreneurs whose livelihood is dependent upon the number of placements they arrange. Adoption attorneys and practitioners, who have a vested financial interest in completed outcomes - not necessarily the best interest of the child - suggest the policies, and propose and lobby for or against legislation within their respective states. Experts and activists may raise objections, but have little power to affect policy.

Time to Decide

A mother needs to become a mother first. She needs to meet the baby and fully accept it as a reality. She needs to see him, hold her, caress him and count her toes like any new mom. And she needs to so this alone, without the presence of PAPS, counselors or agency workers.

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Elizabeth J. Samuels, Professor of Law at the University of Baltimore with expertise in Child and Family Law and Adoption authored the seminal academic paper on the topic of the time frame needed to make an informed decision to relinquish parental rights after the birth of a child. "Time to Decide? U.S. laws governing mothers' consents to the adoption of their newborn infants " concludes that: "Prohibiting hasty consents create incentives for service providers to follow best practices in adoption."

Samuels points out that in addition to being unfair to the mother, rushing a mother to sign too soon after delivery can put all parties at risk. A claim of pressure or coercion can result in the adoption being contested, a very costly litigation that take years with multiple appeals.

Samuels responded to the current proposed law via email saying:

"The proposed law treats newborn babies like chess pieces to be swooped up and set down in new families with no time for informed and deliberate decision making by their parents and prospective adoptive parents. Unlike the current law, the proposed law does not promote humane and ethical adoption practices. Ethical adoption practices prevent the unnecessary separation of families as well as insuring the finality of adoption decisions. The proposed law would allow the adoption business to disregard those practices in order to increase the numbers of adoptions."

Fairness in adoption is ensuring that the placement is the unwavering, unpressured choice of the child's parents.