Overview of Independent or Private Adoption

INTRODUCTION

From a legal point of view, the only two types of adoption are agency adoption and independent (non-agency) adoption. The main difference between the two types of adoption is the method by which the consent to adoption is given. In an agency adoption, the birth parents relinquish their parental rights to an agency, and the agency, in turn, consents to an adoption by specific adoptive parents. In an independent adoption, the birth parents give their consent directly to the adoptive parents.

For the most part, adoption is controlled by state law. Independent adoption is specifically authorized by law in all of the states except four. Those four states, which require the use of an agency, are Colorado, Connecticut, Delaware, and Massachusetts. The right of birth parents to select the adoptive parents is a concept that is firmly embedded in the legislative social philosophy of our country. As a matter of fact, independent adoption is a phenomenon which predates the 1930s, when agency adoption first became widely accepted.

In this country, more newborns are placed each year through independent adoption than through private agency adoption. The reason is that more birth parents choose to pursue independent adoption rather than to work with agencies. While it is difficult to determine why so many birth parents now choose independent adoption, they do report some reasons consistently. These reasons include (1) a perception by birth parents that agencies are profit-oriented and bureaucratic in their treatment of birth parents, (2) a desire by birth parents to play an active role in the selection of the adoptive parents, and (3) a desire on the part of birth parents for the child to go directly into the physical custody of the adoptive parents rather than into temporary foster care.

From the adoptive parents' perspective, the advantages of independent adoption extend beyond the ability to play an active role in the selection of specific birth parents. Other benefits include the possibility of avoiding the long waiting periods that are typical with agency adoptions and the ability to adopt even though the adoptive parents may not meet the standards which may be imposed by agencies. While some of the agency standards relate to concerns about the ability of the prospective adoptive parents to be adequate parents, other agency concerns have no demonstrable relationship to such ability.

The "openness" which is characteristic of independent adoption is considered by many to offer psychological benefits to the birth parents, the adoptive parents, and the adopted children. In most of the states that permit independent adoption, adoptive parents must have one or more face-to-face meetings. It has been found that in independent adoptions the birth parents are better able to cope with feelings of loss. By meeting the adoptive parents, the birth parents are reassured about the safe and loving environment in which their child will live. The adoptive parents, by knowing the birth parents, can diminish their fears and fantasies about losing the child and can provide the child with answers to the inevitable questions about origins.
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APPLICABLE LAW  

Because independent adoption is controlled by state law and because many independent adoptions involve more than one state, it is necessary to determine which state's laws will apply. The applicable law on most points will be the law of the state in which the adoptive parents reside. When the birth parents reside in another state or give birth in another state, it is possible that some aspects of the law of that other state will also apply.

Parties to an adoption must comply with the Interstate Compact on the Placement of Children (ICPC) whenever a child is brought from one state (the sending state) to another state (the receiving state) for purposes of adoption. The ICPC requires an application for approval before a child can be transferred into the receiving state. The process requires submission of various documents, including a preplacement assessment of the fitness of the prospective adoptive parents. The ICPC official in the sending state may require that the parties comply with some aspect of the law of the sending state before the official will approve the transfer of the child.
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INTERMEDIARIES AND INDEPENDENT ADOPTION

The laws of some states allow attorneys and other individuals who are not licensed as child-placing agencies to match adoptive parents with birth parents. In most states, however, the adoptive and birth parents must make initial contact with one another without the intervention of an individual, such as an attorney, who is receiving professional fees for rendering services in connection with the adoption proceeding. In these states, the adoptive and birth parents must make initial contact with one another by such means as word of mouth and newspaper advertising. In those states that prohibit paid intermediaries such as attorneys, it is still legal for attorneys to receive payment for advising prospective adoptive parents on advertising techniques and other methods by which adoptive parents can make their own initial direct contact with birth parents.
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RISKS OF INDEPENDENT ADOPTIONS

There are certain emotional and financial risks associated with independent adoption. When birth parents initially agree to place a child for adoption but later change their minds, the adoptive parents undoubtedly suffer emotionally. Even if the child is not yet born when the birth parents change their minds, the adoptive parents have formed emotional ties with the birth mother and the expected child. If the child has already come into the physical custody of the adoptive parents, the emotional trauma will be even greater.

In addition, the adoptive parents may have already paid attorney fees and medical expenses when the birth parents change their minds. In this event, the adoptive parents will most likely not be reimbursed by the birth parents.
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RISKS OF PRIVATE ADOPTION

A small number of states (for example, California and Virginia) require that the parties to an independent adoption exchange identifying information. In most states, however, the decision about whether or not to exchange identifying information is left to the discretion of the parties. The same is true with respect to continuing contact between the parties after the placement of the child. These matters are considered appropriate for discussion between the birth parents and the adoptive parents so that the parties can agree to a plan.
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SEPARATE LEGAL COUNSEL

The attorney for the adoptive parents is ethically prohibited from simultaneously representing the birth parents. Because of this prohibition, there are some situations in which the parties will assert that, if only one attorney is involved, he or she is representing only the adoptive parents and that the birth parents simply have no legal representation. This approach is ill-advised because it presents dangers to all of the parties. It is a far better practice to insist that the birth parents retain separate counsel to represent their interests.
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AVAILABLE SERVICES

All of the services that are traditionally provided to the parties in an agency adoption can also be provided in an independent adoption. For example, medical and social histories are obtained not only by the adoptive parents themselves but also by the attorney representing the birth parents. The histories are then preserved by the adoptive parents and their attorney. Psychological counseling is also available to the birth and adoptive parents and is generally recommended by the attorneys handling independent adoptions. The parties can be referred to qualified counselors experienced in adoption issues.

In independent adoptions, it is common for the adoptive parents to be present at the hospital and even in the birthing room at the time of birth. In addition, the adoptive parents typically can have access to the child between the time of birth and hospital discharge so that the adoptive parents can begin the process of bonding. It is also common for the child to be discharged from the hospital directly into the physical care of the adopting parents.
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CONSENT

It is rare for the laws of a state to allow a birth parent to give a binding consent to an adoption before the birth of the child. In addition, states mandate various minimum waiting periods after the birth before a consent can be signed. Some states require waiting periods that range from 48 hours to 10 days. States also have varying laws governing whether or not birth parents are permitted to change their minds for a period of time after giving consent. Some states make the consents immediately irrevocable upon signing; others allow birth parents to revoke consents for short periods such as 15 to 30 days from the date of signing. A few states allow revocation all the way up to the time of finalization of the adoption by the court, which could take 6 months or more.
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HOME STUDY

Following the consent to adoption by the birth parents, the adoptive parents are required to follow court procedures which will lead to a final decree of adoption. Whether accomplished before or after the placement, the courts will require that the adoptive parents undergo a home study. State law dictates whether an individual social worker, a private licensed child-placing agency, or a public social services agency may perform the home study. The process is designed to evaluate the adoptive parents to assure that there is nothing in their homes or backgrounds which would be contrary to the best interests of the child.
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CONCLUSION

It is indeed fortunate that there is more than one legal and ethical way in which to accomplish an adoption. Both systems - the independent adoption system and the agency adoption system - serve legitimate purposes. Neither system is the right answer for every adoptive parent and every birth parent. The diversity of options promotes the welfare of society as a whole and of all the individual parties involved in an adoption.
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IS DIRECTED AGENCY PLACEMENT THE RIGHT CHOICE?

 Most of the newborn infant adoptions in the United States are done through the independent (non-agency) process. By some estimates, the percentage of adoptions done that way may be as high as 80%. This is true because birth parents in increasing numbers are choosing not to work with agencies. There are obviously many reasons why a birth parent might make such a choice but there are two frequently offered rationales (1) that the birth parents like to play a greater role in the selection of the adoptive parents and (2) that birth parents are fearful of foster care which is a component of traditional agency adoption.

Some agencies are attempting to combat the above situation by recommending a process which is sometimes known as directed agency placement. The concept involves adoptive parents themselves identifying birth parents but then turning what started out as an independent adoption into an agency adoption. This is accomplished by having the birth parents relinquish their legal rights to the agency and then having the agency consent to the adoption by the specific adoptive parents who have already been selected by the birth parents. Such an arrangement would seem to be questionable under the licensing regulations which restrict an agency from relinquishing its placement discretion. At the same time, this impediment has not stopped the growth of the use of this procedure.

The agencies which are selling this new concept contend that it is advantageous because the birth parents will be counseled by staff social workers and because the legal proceeding will be handled by the agency's attorney. These contentions are misleading and have caused much confusion. There is no reason why adoptive parents must choose an agency adoption in order for the birth parents to be counseled. There are many qualified adoption counselors in the local community whose services can be retained on an hourly basis so that the total expense to the adopting parents is much lower than the fee paid to the agency. With respect to the agency attorney, that attorney is ethically prohibited (and prohibited by statute in Maryland) from providing any legal advice to either the birth parents or the adopting parents. That attorney represents the agency's interests which are different than and potentially in conflict with the interests of the birth parents and the adoptive parents.

Aside from the above, there are other down-sides to the directed agency placement. In most cases, it will make the total adoption expenses higher since in addition to the other normal expenses, the adoptive parents will be required to pay a placement fee to the agency.  Another down-side is obvious from the above discussion. If a birth parent has made a conscious decision to pursue independent adoption and not agency adoption, that birth parent may be upset if the adoptive parents attempt to compel that birth parent to work with an agency. Related to this is the fact that birth parents working with agencies are more likely to change their mind about placing with the adoptive parents. This may be due to the fact that the birth parents have less direct contact with the adoptive parents when an agency is involved.

Directed agency placement is an option which should be considered by adoptive parents only after receiving independent legal advice concerning its feasibility. There are some situations in which directed agency placement makes sense and in which it may be recommended by legal counsel. For example, there are six states which do not permit independent adoption. If the adoptive parents reside in one of those states or if they are working with birth parents who reside in one of those states, it may be necessary to do a directed agency placement in order to satisfy local law.

Mark T. McDermott

Law Office of Mark T. McDermott
Suite 800
910-17th St., NW
Washington, DC 20006
202-331-1440
202-331-1442 (FAX)

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