Tuesday, November 3, 2009

Are Laws Tilted Towards Adopting Parents? Well, yes, even in Oregon

Are laws pertaining to surrender titled towards the person surrendering a child or to the receiver of the child? Even in an open-records state such as Oregon?

You guess.

An interview with an adoption attorney, Scott Adams, in the June 2009 Oregon State Bar Bulletin, got blogger Jane wondering about just that question. The piece was written by another attorney and adoptive parent and focused on the joy and happiness generated by adoptions in general, adoption attorney Adams in particular. Jane's ire was up. Noteworthy was that Adams represented the natural mother of the author’s adopted son (throat cleared here) and delivered the baby to the author the day after he was born (eyebrows raised now). Adams, by the way, boasted in the piece that he takes only cases that “help build families” apparently ignoring the destruction of his client’s family. You got it, we were pissed. We say anything about the rights of natural mothers, and we are generally dismissed because we have, you know, a vested, personal--possibly even emotional and irrational--interest in the fate and well-being of birth mothers.

Though the article made a passing reference to the first/birth mother although not a recognition of her grief --“for every adoptive parent who gains a child there is a birth parent who places one”--the remainder of the story was about: happiness. Jane, our blogger who lives in Portland, Oregon, and is an attorney, asked Lorraine, the author of Still Unequal: The Shameful Truth about Women and Justice in America as well as Birthmark, the first memoir to tell a birthmother's story, to collaborate on a response.  Jane researched Oregon law, Lorraine added her two cents, and together we responded to the Bar Bulletin with an analysis of Oregon law regarding adoption.

What did we find? That Oregon law quite conspicuously favors the interests of the adopting parties over those of the individual relinquishing a child. 

The editor of the Bulletin did not accept our piece even though it was "interesting and compellingly written" but "too far afield of the Bulletin's mission and scope." The gist of the rejection was that we needed a wider audience. Well, our piece was about Oregon law, and the Bulletin goes to over 12,000 attorneys in that state--all the members of the Oregon bar. If anyone has a suggestion, please let us know. We then submitted a short letter to the Bulletin to respond to the offensive tone of the pro-adoption interview with Adams, and make a few points regarding the biased laws of Oregon.

As the laws that Jane uncovered are such a good example of how laws can be tilted towards one party to the detriment of the other, we are publishing it here, and will be submitting it to another appropriate place. Stay tuned.

Here is the longer article we wrote:

By Jane Edwards and Lorraine Dusky
Copyright (c) 2009


Birth mothers deserve more attention than the passing reference Melody Finnemore gives to them in her article about adoption attorney Scott Adams (“Family Man,” June 2009): “for every adoptive parent who gains a child there is a birth parent who places one.” This is far too dismissive a reference to the women who actually bear the children.

As mothers who surrendered daughters to adoption, we—one an Oregon State Bar member, the other an award-winning writer--have been active in adoption reform for decades, and as such we are all too aware of widespread insensitivity to the birth mother’s situation. She is often portrayed as a pitiable young woman and called a “birth mother” even before she gives birth, a reference that immediately diminishes her.

While adoption is widely accepted in society today, the unfortunate corollary is that adoption as an institution has morphed from a way to care for children whose families cannot to a business model that provides children to those who cannot, or do not choose to, have a child naturally. The United States has the highest rate of domestic adoption of any western country. Infant adoption is a multi-billion dollar business that is entirely dependent on the vulnerability of pregnant women.


Between World War II and Roe v. Wade in 1973, women who surrendered their children were primarily white and middle class, responding to pressure from well-meaning family members and clergy to hide their shame. The pre-Roe period, sometimes called the Baby Scoop Era, includes retired Washington Supreme Court Justice Faith Ireland, author Paula Fox, singer Joni Mitchell, and actresses Kate Mulgrew, Roseanne Barr, and more recently, Mercedes Ruehl.

The Pain Lingers On

Because women who lost children to adoption in an earlier time were shamed into silence, much of the public has accepted the idea that the experience was a positive solution for their untimely pregnancies. Yet for many, if not most, of these women, the truth is far different. Ann Fessler’s 2006 book, The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe V. Wade, gives an intimate and sadly accurate picture of how they fared. They did not go on and simply “make new lives” and forget their children. One of the mothers profiled, Jeanette Roberts, a nurse who lives in Lake Oswego, surrendered her son in 1952. She suppressed her grief for many years: “When I finally came to the place where I could not ignore my loss, I began to search for him. And although we have had a wonderful reunion, it is bittersweet. Nothing can replace the 43 years that I lost.”

One of us, Lorraine Dusky, described herself in her 1979 memoir, Birthmark, as “a mother without a child. I was a mother who searched for her daughter’s face in those of children at shopping malls, in Central Park, anywhere children her age might be” she wrote. ”This endless silence is the worst of all. Never knowing is the hardest part. You don’t forget, you just stop crying every day.”

Justice Ireland gave up her daughter in 1965 when she was a 22 year old college student. She told David Postman of the Seattle Times in 2000. “I think we made the right decision for the time, but there was always a pretty big hole there.” (“Justice Tells Personal Story” 9/8/00). Ireland calls relinquishing her daughter "one of the worst things that ever happened in my life."

Adoption loss ripples through entire families: parents who cannot forgive themselves for counseling their daughter to give away their grandchild, children who learn they have a half-sibling “out there,” husbands who finally understand why their wives tear up when they see a baby.


Poverty Replaces Shame As the Reason for Adoption

Today 40 percent of babies are born to single women and poverty has replaced shame as the primary reason for surrendering a child to adoption, according to Adam Pertman, author of Adoption Nation: How the Adoption Revolution is Transforming America (2000). Through aggressive advertising in the media, on the internet, on college campuses and anywhere young women are likely to be, the adoption industry recruits them to give up their babies. Physicians, clergy, even family planning clinics, promote adoption.

Bernadette Wright’s experience when she was 19 and pregnant in 1990 is typical: "I lacked money and family support and felt overwhelmed. I contacted an organization that advertised 'counseling' to help expectant mothers consider their options, but then they used pressure, misleading information, and false promises to convince me that I could never make it as a mother. I felt I had no way out but to surrender him to adoption." Afterward, Wright sought treatment for unresolved grief and post-traumatic stress disorder. Today Wright, who lives in suburban Washington, DC, holds a doctorate and works for a consulting firm. She is president of Origins-USA which advocates for the natural right of mothers to nurture their children and for keeping families together.

In theory and in law, Oregon recognizes the sorrow that loss of a child brings. ORS 109.346 requires adoptive parents to pay for three pre-adoption counseling sessions and three post-adoption counseling sessions with therapists “knowledgeable about birth parents, adoption and grief and loss issues.” But that counseling is often done through the agency handling the adoption. A counselor working for an adoption agency (which depends on fees from adoptive parents) cannot give totally unbiased counseling to a poor, often frightened young woman.

Oregon statutes do not require anyone to provide expectant mothers with information on how they might find ways to keep their baby, that is, the availability of Medicaid, welfare, WIC, food stamps and free or low cost baby supplies or how to ask relatives for help. Much like eager soldiers who cannot grasp the horrors of war, expectant mothers cannot grasp the loss they will experience if they surrender their baby. Instead, they are likely to meet new birthmothers at the agency, who are indoctrinated in the pro-adoption language of the agency, and tell them that the sorrow of surrender will be short-lived. Because they have only recently surrendered their own offspring, these young women do not know themselves yet the lasting effects of losing their children to adoption.

We sometimes hear from those in the adoption business that “mothers don’t want their children; they can’t get out of there fast enough.” What appears as uncaring is likely due to acceptance of the inevitable, and the need to grieve in private. Mothers sign surrender papers as stoically as General Robert E. Lee signed the surrender at Appomattox Courthouse even though every fiber in their bodies revolt against what is a violation of the natural order.

Open Adoptions are Hard to Enforce 

In the past 20 years, open adoptions have reduced the negative impact on birthmothers somewhat by allowing them to maintain contact with their children according to a 2006 report by Susan Smith of the Evan B. Donaldson Adoption Institute, (Safeguarding the Rights and Well-Being of the Birthparents in the Adoption Process). Open adoptions also benefit children through allowing them to know their origins and the circumstances of their adoption. However, even in open adoptions, the ability of birth parents to maintain a relationship with their children may be illusionary. While ORS 109.305 provides for court enforceable “continuing contact” agreements, failure of adoptive parents to abide by the agreement does not nullify the adoption. If adoptive parents cut off contact and refuse to participate in mediation, or if mediation is unsuccessful, birth parents must initiate a court action to obtain relief, pitting them against adoptive parents who most likely have greater financial resources. And of course, adoptive parents wishing to close the adoption can simply disappear into another community, another state, another country.

Unfortunately openness in domestic adoptions has resulted in an increase in international adoptions. Often the reason to go overseas is not only the dearth of available babies at home, but to avoid any possible contact with the birthmother. Brooks Hansen speaks for many when he wrote in The Brotherhood of Joseph: “Just because we’d been through the IVF wars and lost, that didn’t mean that Elizabeth should always have to save an extra set at the dance recital.”

As recent reports have shown, many of these indigent mothers in the poorer nations of the world lose their child through fraud or corruption; many of the healthy infants available for adoption by wealthy people are outright kidnapped. Even in China, the supply of adoptable babies is far diminished; recently, an agency was found to have “confiscated” babies and sold them to foreign adoptive parents as orphans for $3,000 apiece. In short, the supply of adoptable babies rises to meet demand and disappears when Western cash is no longer available.


Informed Consent or Unwillingly Duped

The adoption industry describes surrendering a child as “deciding to make an adoption plan.” Although the right of parents to nurture their children is protected by the due process clause of the 14th Amendment, Troxel v. Granville, 530 U.S. 57 (2000), Oregon, like most states, does little to assure that mothers’ decisions to surrender are indeed informed.

Adoption agencies sequester expectant mothers in apartments (which can be modern versions of maternity homes). Women are brought from other states to Oregon where they lack family support and whose laws are more favorable to adoptive parents. Prospective adoptive parents often pay pre-birth expenses such as housing and medical care which may make mothers feel obligated. The women, often indigent, realize they may be asked to re-pay these expenses if they do not go through with the adoption.

Under Oregon law, a mother has less right to nullify an agreement to surrender her newborn child to strangers than consumers have to rescind ordinary business transactions. For example, ORS 83.720 gives a buyer in a home solicitation sale three days to rescind the contract; ORS 694.042 allows the purchaser of a hearing aid to thirty days to back out ; not so if you are a birth mother and feel you made a terrible mistake in the hospital by signing over your baby. Oregon adoption laws are designed for the protection of the adoptive parents, and not the mother.

For instance, Oregon does not require a waiting period before a mother may sign a consent. Prospective adoptive parents are often in the delivery room when the baby is born, even cutting the cord. Immediately after the mother leaves the delivery room, her attorney may ask her to sign the consent form as well as an agreement [ORS 418.270(4); 109.312(2)] giving up her right to rescind her consent within six months absent fraud or duress. Although her attorney or the adoption agency has in all likelihood explained the consent and agreement prior to the birth, no woman can appreciate her loss until she has given birth and has had time to internalize the consequences of surrendering her child. Yet she is presented with papers to sign giving away all her rights while she may be groggy or suffering from post-partum hormones. While Oregon agencies may not initiate adoption proceedings for six months, ORS 418.270(1), supposedly giving her time to reconsider her decision, this becomes a moot point if she has given up her right to do that. And under the current system, most apparently do just that. But how is signing the papers within hours of giving birth not under duress?

While Oregon courts prohibit attorneys from representing both prospective adoptive parents and natural parents how this works in reality is biased against the natural mother. The adoption agency, or the prospective adoptive parents’ attorney, often refers an attorney to the natural parents, and their bill is often paid by the prospective adoptive parents. The mother’s attorney becomes a facilitator to see that the adoption progresses as planned. Rule 5.4 of the Oregon Rules of Professional Conduct dictates that “a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.” The words sound good, but the realities of the situation are likely to be quite different. Any such attorney who counseled against adoption, or gave the natural mother information which discouraged her from proceeding with a surrender, would almost certain lose future referrals.

An independent funding source such as a surcharge on adoption-petition filing fees would assure independence of counsel. These fees could pay Legal Services or similar organization to represent parents considering adoption. This would benefit adoptive parents as well since the better informed a woman is the less likely she is to have poor grief resolution and, most importantly to the adoptive parents and the legal community, to contest the adoption.


Blueprint for the Future

We want a world where all children are cherished. If families cannot with help care for their children, adoption is obviously the better alternative to growing up in an orphanage or in foster care. Adoptive parents we have known are loving people who are committed to the well-being of their children. However, the adoption industry today and the legal system surrounding it fails to protect vulnerable mothers and mothers-to-be, and thrusts too many children into the adoption mill when they need not be. Oregon laws need to be changed to assure unbiased counseling for women considering adoption, truly independent legal counsel, and ample time after birth--free from the influence of the prospective adoptive parents—to appreciate the significance of their decision. Those thinking of adopting should consider some of the many Oregon children languishing in foster care that need permanent families.

Excellent sources for attorneys interested in learning more about the adoption experience and reforming adoption practice are the following not-for-profit organizations: American Adoption Congress, Ethica, the Evan B. Donaldson Adoption Institute, and Parents for Adoption Reform (PEAR).

18 comments :

  1. I think your response to the article was eloquently written, offering a first mother's perspective. As an adoptee I will add something here - I have to wonder why the baby being surrendered does not have any representation in the adoption process (in addition to the appalling reality that most first mothers don't as well). If this is a legal transaction at basic, how is the object of transaction almost nonexistent. If any lawyer, knowledgeable of the affect of adoption has on many adoptees (including the trauma of seperation), I believe that open records would be demanded. How could it not be in an adoptees best interest to know their full and complete identity? And wouldn't there be a clause were open adoptions would be legally enforced? Not only to protect the mother surrendering her child, but the child as well? How can this issue not be seen as so transparent by the public at large? When only one side of the triad (yes, 3 parties here) is represented, of course it will favor adoptive parents.

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  2. Excellent article! I'm a law professor -- may I have permission to use it in my Adoption Law class in January?

    As to possible places to publish -- check to see if the Oregon Bar Association has a Family Law section, and if they have a newsletter. If so, they may be interested in publishing.

    Oregon law is not that different from law in the rest of the States (with the exception that a majority of states require 24 to 48 hours to pass before an expectant mother can sign a relinquishment); broadening the article from just Oregon-focused would increase your publishing opportunities. Some places to look -- Adoption Quarterly, Family Law Bulletin.

    Here are a few more I found, though I don't know much about them:

    Sponsored Links



    Children's Legal Rights Journal — Loyola University, Chicago.
    Hofstra University Family Court Review
    International Journal of Law, Policy, and the Family — Oxford University Press.
    Journal of Juvenile Law and Policy — King Hall. University of California, Davis.
    Journal of Law & Family Studies — University of Utah College of Law.

    Good luck!

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  3. Thanks, Malinda, of course please use the piece in your Adoption Law Class! We'd love to sit in on that class. Where do you teach?

    And we will take you up on your suggestions, because the piece does need to be seen by adoption attorneys and others. Thanks again.

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  4. I'm in Fort Worth, Texas -- don't suppose you'd want to come talk to the class?!

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  5. Malinda,

    Thanks for your suggestions. I am excited that you are interested in using the article for your class. If you would like a copy of the article with footnoted citations which we omitted in the blog, send an email to jane_edwards@comcast.net

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  6. Malinda,

    Fort Worth? Tempting. I've never been there. What time of the year are you thinking of?

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  7. I request permission to use the (yet unpublished) article as a handout when i present to adoption attorneys and law students at the upcoming PLI conference in NYC Dec 18.

    I also have some additional suggestions for venues to publish it:

    MotherJones
    Conducive
    Dissent
    Dissident magazine
    The Nation
    The Progressive
    Common Dreams

    Most accept email submissions. Check guidelines for length (generally 2k words) Some want just a proposal sent first.

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  8. AdoptAuthor,

    Certainly you may use the article in your presentation to lawyers and law students. Let us know the reaction.

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  9. Oregon attorneys respond (from emails sent to Jane):

    "Right on! It would be great to get Willamette Week [a Portland weekly] to do a story on adoptions from the birth mother and birth father point of view. I wonder if the number of adoptions has gone up or down with the open records law?"

    "Thanks for this article which focuses attention on the impact of the happy story of adoption (for the adoptive parents) on the mothers involved. I’m embarrassed to say that I never thought about this much before, but I will from now on."

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  10. Another comment from an attorney.

    "I liked the article – it must have been very hard to write. Please accept my sympathy! Just wanted to tell you that I do know from talking to my own birth mother, how hard it was for her. At least my parents understood that when they adopted me, that for her it would be very hard. She says that me coming to look for her “made a bad thing come untrue.” I feel so lucky that I get to know her, that everyone, me, my family, her other children, all have the chance to know each other. The attorney who brokered the deal actually gets the most demerits – [My birth mother] and I compared notes and discovered that he told a few lies to make the thing happen. Nothing that had a material impact on the overall situation in the end, but despicable nonetheless. I won’t say who it was as he still practices....

    Anyway, as an adoptee, I always considered that giving me up had to have been very difficult for [my birth mother] to do. I thanked her for doing as best she could and for making the sacrifice of her own peace and happiness to ensure that I could be cared for – she could not even afford herself back then. I want to tell you that, at least in my lexicon, the term “birth mother” confers not shame or denigration, but honor and sacrifice. The more I learn about how some babies “become available” for adoption, the more saddened I am, for our society still needs for children to be adopted, it’s just getting shady and losing dignity. I am one of the lucky ones who had all the best facets of adoption. I did decide to have my own baby rather than adopt, and that decision was certainly shaped by my history.

    I did not read the other article. I will try to get to it. Who at the bar should hear from people like me, objecting to the lack of balance?"

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  11. I just read the last attorney's comment that her definition of "birth mother" confers honor and sacrifice rather than shame or denigartion. That revelation is most welcome to me at this very moment, as I had a very disturbing dream about my daughter last night. I suppose my subconscious came bubbling to the surface because I awoke feeling uneasy and discomfited rather than rested and refreshed. A long-planned weekend away to a place I've never visited will provide just the distance I need from this disturbing image of daughter and estranged sister.

    Thank you for the reassurance that some of our relinquished/surrendered/lost children understand and forgive us.

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  12. I and my firm represented a birth mother who, after giving birth prematurely, changed her mind the minute her child was swept from her arms by the eager adopting parents, less than 24 hours after the birth.
    We went to the court of appeals, making many of the arguments in this article, about Oregon laws allowing 3 days to rescind a consumer sales contract, but no time period for a birth mother to change her mind. Physical relinquishment finalizes the adoption. Period. Oregon is the only state in the country not to have a waiting period for finalizing adoption. Many require solemnization in front of a judge and everyone who knows anything about biology knows that the maternal bonding instinct may take 3 days to activate because of hormonal realities.

    Having been told by our court of appeals that it was for the legislature not the courts to decide whether Oregon's adoption laws deny birth mothers their rights(!), I could only tell our client that when her baby grows up and they find one another again, that she will be able to tell her she did everything possible to try and keep her.

    This sad case still haunts me. I am so glad there is at least a forum on this issue, even though the possibility of there ever being a lobbying force on behalf of birth mothers, comparable to the well-funded and powerful adoption agency lobby, seems remote at best.

    thank you for speaking to this issue of gross injustice.

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  13. Adopt Author:
    Yes, just please make sure you give us the byline and copyright notice...

    The more this can be circulated the better.

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  14. I emailed retired Washington Supreme Court Justice and birthmother Faith Ireland whom we quote in the article and asked for her comments. Here is her response:

    "Thanks for the update. I continue to speak, where possible, about my experience as a birthmother and work to overcome the archaic and counterproductive shame which surrounds adoption. The point you make about poverty replacing shame as the primary reason for adoption is an important and often overlooked one.

    It is important that organizations who advertise "counseling" for pregnant women on their choices, provide all alternatives and information about support for single mothers, and do not pressure the mother-to-be for either adoption or abortion."

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  15. Anonymous Oregon attorney,

    What a heart-breaking story. I am eager to work with you on drafting a bill giving Oregon women a reasonable time to change their minds. I am sure I can enlist some dedicated birthmothers to lobby for the bill as well. My phone number is in the bar directory. Please give me a call.

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  16. Kitta here:

    I surrendered my infant son in the 1960s, and have worked with national search/support groups for many years.

    Many of the mothers I have met have similar stories to mine. We surrendered our children because our children's fathers abandoned us and we could not get child support. Our schools expelled us, or we were fired from our jobs.

    I placed my son in temporary cradle care, and then the agency began to threaten me with a court termination of parental rights.

    My family owned a law firm and I knew of mothers whose rights had been terminated this way.

    I did not surrender because I was "ashamed." The shame was more a form of 'pride' that my parents felt....the pride that they were "too good" to have a "bastard" grandchild.

    My family sent me away, even though they had plenty of money to help us.

    My father admitted he was "torn" as to whether to help me raise my son or not. He and my mother did know others in our family who had kept out of wedlock babies.

    He now regrets that he refused to help me. Without any money from family, I was in poverty. The agency told me I could not get welfare.

    I was still under-age and under guardianship with relatives, arranged by my parents for the duration of my pregnancy.

    I had been a full-time college student, but had no "real" work experience and I needed help, which was denied to me.

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  17. I must agree with Kitta. I never felt shame for being pregnant, for giving birth to my son. I felt betrayed and abandoned but never shame. It concerns me to a certain extent that we use some supposed shame that the mothers felt instead of economic reasons, the same as today.

    Our parents were not poor. In fact, most of us were from middle class families. However, we just didn't have money of our own.

    Because of being unmarried and
    pregnant, we were not able to work, or even get hired. We could be fired for morality reasons, and were unable to find housing. If we had independent wealth a very small minority of us would have surrendered our babies. Then as now it boiled down to money.

    It was our parent's pride, as Kitta said, that forced our surrenders, and they tried, largely unsuccessfully, to shame us into acquiesence. My only shame was that my parents didn't love me enough to support me or to allow me to raise my son and that my boyfriend waited until too late to try to save us. I never felt shame for having a child, even out of wedlock.

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  18. Yikes, I'll just say that as a single pregnant woman who lived in another city and state and was able to keep my parents unaware of my pregnancy, I was filled with shame on my own when I became pregnant. I wanted to die. I quit my job as I was starting to show, I hid in my aparment, I ran out of a store when I saw another reporter I knew. The year was 1966 and I was in upstate New York.

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