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.
dusky.jpg)
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).
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.
dusky.jpg)
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).
