State Adoption Laws

The Child Welfare League of America and other child welfare authorities agree that "the birth family constitutes the preferred means of providing family life for children" (CWLA Standards of Excellence for Adoption Services, 2000). Sadly, state legislatures have responded to demands by the adoption industry and those who desire children but cannot or choose not to have them naturally by enacting laws which "appear to value an increase in infant adoptions over the goal of encouraging careful deliberation” according to Prof. Elizabeth Samuels of the University of Baltimore Law School. 

The result is that many children are lost to adoption who would thrive in their birth families. The United States has an adoption rate far higher than the United Kingdom, the Netherlands, Australia, and other western countries which put the interests of children first and do not allow adoption to be run as a business. 

First Mother Forum has ranked state laws from ugly to good based on the whether the laws include safeguards which serve to protect vulnerable mothers from exploitation.

SAFEGUARDS
  •  Counseling to let mothers know they’re important to their children and inform them of resources which would enable them to nurture their children;
  •  Consultation with an attorney to inform mothers of their right to change their minds, time frames for signing and withdrawing consent, enforceability of open adoption agreements, and the obligation, if any, to reimburse prospective adoptive parents for services if mothers decide to keep their babies;
  • Sufficient time after birth before mothers may sign consents;
  • Require all surrender papers be signed before a judge; this assures mothers have left the hospital and are informed of their rights; and
  • A certain and reasonable period of time during which mothers can withdraw consent and have their babies returned.
THE UGLY
These state laws foster a market which serves the best interests of prospective adoptive parents and allows adoption practitioners to make a fistful of dollars at the expense of vulnerable women. Washington has probably the worst law in the country. It allows mothers to sign consents any time before birth and gives mothers 48 hours after birth to inform the agency if they have changed minds. If they so notify the agency, they must send a letter to the agency postmarked within 48 hours revoking their consent. No exceptions for mothers who have Cesarean-sections, postpartum depression, or other disabilities. 

Hawaii allows mothers to sign consents any time after the sixth month of pregnancy. However, they must sign a written affirmation of their desire to relinquish after the birth. 

Alabama allows mothers to sign at any time but gives them five days after birth or five days after they sign, whichever is later, to revoke their consent.

Other left coast states--Oregon and California and deep red South Carolina and Wyoming--require no counseling or legal consultation or waiting period before birth before mothers may sign consents. Mothers may still be suffering the effects of child birth and feel obligated to the prospective adoptive parents who may have attended the birth, even cutting the cord. In Oregon, South Carolina, and Wyoming consents are revocable only upon proof of fraud or duress, nearly impossible to prove. In California, consents are irrevocable.

Colorado requires mothers to receive counseling from a county social services department or an adoption agency. Again, consents are irrevocable only upon proof of fraud or duress.

Kansas gives mothers 12 hours after birth before they may sign an irrevocable consent. Utah is a notch above Kansas, giving mothers 24 hours to think it over.

Delaware allows mothers to sign consents immediately after birth, but gives them 60 days to petition the court to revoke it. Sounds good, but there’s a catch: the judge does not automatically allow mothers to revoke their consent. Rather, the adoption agency, or child welfare agency, gives the judge a report on whether the revocation would be "in the best interests of the child." In effect, the agencies which handled the adoption advise the judge whether the adoption should go forward. Since agency fees depend on adoption, you can see how that stipulation, no matter how practiced, is tilted away from the natural mother.

Indiana and North Dakota allow mothers to sign immediately after delivery, but allow them to revoke consent within 30 days of signing in Indiana, and before the adoption decree is issued in North Dakota, if revoking consent is in the "best interests of the child." Mothers rarely pass the "best interests" test because judges tend to look more favorably on affluent, married, prospective adoptive parents who are "the only parents the child has even known" than on single, often low income, women who were willing at one time to give their child away.

THE BAD
These states give mothers time after birth, usually 48 to 72 hours, before they may consent to adoption. Some of these states allow mothers to revoke consent upon proof of fraud or duress or proof that revoking consent is "in the best interests of the child." Both are likely impossible to prove. These states are: Arizona, Connecticut, Florida, Illinois, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, Ohio, South Dakota, Texas, Virginia, and West Virginia.

Maine allows mothers to sign consents any time after birth, but allow them to revoke their consent within a few days. Idaho allows mothers to sign immediately after birth but allows them to revoke consent and petition for custody. The Idaho statute does not set forth the basis for granting such a petition but does require that mothers revoking consent reimburse prospective adoptive parents for expenses paid.

New York allows mothers to sign immediately after birth. If they sign before a judge, the consent is irrevocable. If they sign before a person other than a judge, they may revoke their consent within 45 if a judge finds it is in the best interests of the child or the consent resulted from fraud, duress, or coercion.

THE BETTER
Rhode Island gives mothers 15 days after birth more before they may sign consents, revocable if they can prove the adoption is not in the best interests of the child.

Alaska, Arkansas, and Georgia give mothers 10 days to revoke consents and have the child returned.

North Carolina allows mothers to sign immediately after birth, but gives them seven days to revoke their consent. It also requires that mothers must be advised that counseling services may be available, and that they have the right to employ legal counsel.

Michigan, New Hampshire, Oklahoma, and Vermont require that a consents be signed before a judge or person appointed by a judge.

Wisconsin requires mothers to petition the court to accept their voluntary termination of their parental rights and allows them 30 days to ask the judge to set aside the termination based on excusable neglect, newly discovered evidence, fraud, misrepresentation, or other misconduct of a party.

THE GOOD
Seven states and the District of Columbia are rated as “good,” because they include several safeguards:

The District of Columbia requires a 72 hour waiting period after birth, gives mothers 10 days to revoke their consent, and requires counseling.

Iowa requires a waiting period of 72 hours before mothers can sign consents, and allows them 96 hours to withdraw consent.

Kentucky requires a 72 hour period before mothers may sign consents and gives them 20 days to withdraw consent.

Louisiana gives mothers five days after birth before they may sign and requires mothers to have participated in a least two counseling sessions and have consulted an attorney other than the attorney for the prospective adoptive parents.

Maryland gives mothers 30 days to withdraw their consent.

Minnesota requires a waiting period of 72 hours after birth and gives mothers 10 days to revoke consent.

Pennsylvania requires a 72 hours waiting period and gives mothers 30 days to revoke consent. 

Tennessee requires mothers sign before a judge no sooner than three days after the birth, and gives them 10 days to withdraw consent.

These "good" states, though, still fall far short of the recommendations of adoptive mother and social worker L. Anne Babb, Ph.D., author of Ethics in American Adoption, and the E. B. Donaldson Adoption Institute: that mothers be fully informed through counseling and legal consultation, have a reasonable amount of time between birth and signing the consent to relinquish, and have a reasonable amount of time to revoke their consent.  In recent years, several states have moved to reduce mothers' time to sign the consent to relinquish their child in order to make adoption "easier,” for adoption practitioners that compete and profit from what author and birth mother Mirah Riben calls The Stork Market.

Adoption today is a largely unregulated multi-billion dollar industry dependent upon vulnerable young women to meet the demand for healthy infants by those who can pay large sums for them. Most adoption agencies, and all adoption attorneys and adoption facilitators, depend on fees from prospective adoptive parents to continue in business. If state legislatures enacted safeguards to allow mothers to make informed decisions, fewer mothers would surrender their children. This race to the bottom can be reversed only if mothers join together and demand reform.

(Data comes from the U. S. Department of Health and Human Services, Child Welfare Information Gateway, “Consent to Adoption” (2010) which has a detailed presentation of each states' consent laws.

Please note: this is a summary and not intended to provide legal advice. If you’re looking for an adoption attorney, the American Bar Association’s online directory has links to free or low cost resources in all the states.)

--Jane