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INDEPENDENT ADOPTION

Independent adoption is arranged without an agency. Initial contacts are made directly between the pregnant woman and the adoptive parents or by the pregnant woman and an attorney, depending on State law. Independent adoption is legal in all States except Connecticut, Delaware, Massachusetts, and Minnesota. In these States, however, "parties are able to achieve what is, in spirit, an independent adoption: the adoptive parents and birthparents identify each other without intervention by an agency and then arrange for the parental rights to be relinquished through an agency so that the adoption becomes a 'directed agency adoption'." 2

Locating a Birthmother

To initiate an independent adoption, a prospective adoptive parent must first locate a birthmother interested in relinquishing her child. This can be done in several ways. The thirty-four States that allow adoption advertising are listed in the table on the next page. Ads placed in the classified section of local newspapers have proved to be a successful method for bringing birthparents and adoptive parents together. (Not all States allow advertising for birthparents; in fact, some States have passed laws prohibiting advertising.) An adoption attorney can usually advise you on where and how to advertise, or for a fee, you can use a national or regional adoption advertising consultant.

Another way to locate a birthmother is to contact crisis pregnancy centers, obstetricians, school guidance counselors, and friends and colleagues who could lead you to the right person. Typically, you would send them an introductory letter, a photo, and a resume describing your family life, home, jobs, hobbies, and interests.

Psychological Issues

Two positive aspects of independent adoption include the usually shorter time required to locate a child than in agency adoption and the acceptance criteria being those of the birthparents themselves rather than those of agencies, which can sometimes be arbitrary or rigid. The risks, however, are somewhat greater. One fear is the fear of having a birthparent contest the validity of an adoption and suing to regain custody after the adoption has been finalized (the circumstances in the "Baby Richard" case). This possibility has sent some prospective adoptive parents to other countries for their children. They would rather not take a legal risk on a domestic adoption, preferring instead to adopt foreign children who previously lived in an institution, even if they may have fairly serious health, developmental, or learning problems.

A second fear of potential adoptive parents is the birthparents deciding to parent rather than to place their child, within the timeframe allowed by law. This is different from contesting a finalized adoption. Because adoptive parents may have more interaction with the birth family in an independent adoption than in an agency adoption, they may have made a substantial emotional and financial investment in an adoption that never takes place. Birthparents who considered an agency adoption also may decide to parent their child. Because adoptive parents likely have not had direct contact with the birthparents or the child, their shock may not be as intense. If there has been extensive contact with the birth family and the child, a "fall through," while legal, can be emotionally, not to mention financially, devastating.

STATES PERMITTING ADVERTISING:

Alaska Louisiana New Jersey Tennessee
Arizona Maine New Mexico Texas
Arkansas Maryland New York Utah
Colorado Michigan Oklahoma Vermont
Connecticut Minnesota Oregon Virginia
District of Columbia Mississippi Pennsylvania Washington
Florida Missouri South Carolina West Virginia
Iowa New Hampshire South Dakota Wyoming
Indiana      

STATES THAT DO NOT ALLOW ADVERTISING BY NON-LICENSED PERSONS:

California Illinois Montana North Dakota
Delaware Kansas Nebraska Ohio
Georgia Kentucky Nevada Rhode Island
Hawaii Massachusetts North Carolina Wisconsin
Idaho      

In addition, if it happens after extended treatment for infertility, with its attendant disappointments and expenses, the intensity of a fall through is doubled.

Attorney-led adoptions do not necessarily prepare adoptive parents or birthparents for the feelings that accompany the adoption process or the lifelong issues associated with it. Some States do not require counseling or adoptive home studies before a child is placed through an independent adoption. Adoptive parents may consider this a positive aspect of the process because they would save on the cost of the home study or the birthparents' counseling. But it can become a negative aspect if they receive conflicting advice from friends or relatives on different questions that come up rather than solid advice from an experienced professional counselor. An adoption attorney knows the legal issues but not necessarily the psychological ones.

Financial Considerations

The costs for an independent adoption can be unpredictable and depend on what the law allows in your State or the State from which you will be adopting. In some States, adoptive parents are allowed to pay for a birthmother's reasonable living, medical, and legal expenses. All of these together could run into thousands of dollars, particularly if the birthmother does not have health insurance or is not covered by Medicaid and has complications with the pregnancy, labor, or delivery.

One way to minimize the financial risks in an independent adoption is to decide ahead of time how much you think you can afford to spend on an adoption. Consider purchasing adoption insurance. Perhaps you will decide only to work with a birthmother who has health insurance or is covered by Medicaid, or to adopt in a State in which adoptive parents are not allowed to pay living expenses.

Legal Issues in Independent Adoptions

How do you handle legal questions that come up in the course of an independent adoption? You need an experienced adoption attorney to answer your questions and address other concerns. You should get recommendations of attorneys from friends, relatives, and adoptive parent support groups and also see if the local Bar Association or the Better Business Bureau has ever received complaints about a specific attorney. The following questions should be asked at your first meeting with the attorney.

  • How many adoptions have you been involved in?
     
  • How long have you been working in the adoption field?
     
  • With which types of adoptions do you have experience
     
  • What are your fees?
     
  • Do you have references from former clients whom I can talk to?
     
  • Do you work with an experienced adoption counselor, or can you recommend one to guide us and the birthparents through the psychological aspects of this process?

You also might want to discuss some of the following concerns with the attorney.

Preplacement Counseling

Does the attorney think that birthparents should have counseling before the birth and placement of the child, and that it is okay for adoptive parents to cover this expense? Even if counseling for birthparents is not required in your State, we recommend that you suggest it and offer to pay for it. In most of the contested controversial cases, preplacement counseling did not occur.

Future Contact

This is an important issue. The discussion should include the frequency of contact, the kind of contact (for example, face-to-face, correspondence, or telephone), limits surrounding that contact, and access to medical information that may only become known in the future.

Separate Legal Representation for the Birthparents

Even if it is not required in your State, we recommend that separate legal representation be provided to the birthparents, not representation by your attorney. If the birthmother and birthfather are no longer together as a couple, they can each have an attorney to represent their best interests. Although this may cost more, it is the ethical thing to do and may prevent much heartache farther along in the adoption process. If an attorney recommends otherwise, you may want to reconsider using that attorney.

Benefits of a Putative Father Registry

You may decide to adopt only in a State that has a putative father registry. (You can check State statutes regarding the rights of putative fathers in various States online at http://www.calib.com/naic/pubs/l_putat.cfm .) Otherwise, if the birthfather is not actively participating in the adoption plan, is unidentified, and is not willing to take a paternity test or if the birthmother is not able or willing to name a birthfather, you and your attorney will have to evaluate such circumstances very carefully. These are the kinds of situations that involve the most risk.

Overall, fewer than 1 percent of adoptions are contested. Thousands of adoptions are completed successfully every year. Headlines notwithstanding, with good adoption practice you can minimize the risks of a contested independent adoption.
resource: National Adoption Information Clearinghouse

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