Proposal to create enforceable open adoption agreements stirs legislative debate

Published: Tuesday, Feb. 5 2013 8:10 p.m. MST

Mike Millgate plays with his son, Mason, as he and his wife, Shelly, spend some time with their three boys, Ian, Mason and Logan in Herriman on Tuesday, Feb. 5, 2013.

Scott G Winterton, Deseret News

HERRIMAN — Shelly Millgate wants her infant son, Logan, to know he has many people in his life who love him.

That's one reason she and her husband, Mike, agreed to an open adoption with the 13-month-old's birth mother, Krishna. She selected the Millgates to adopt the baby through a private adoption.

Krishna has regular contact with the Millgates. She even attended the court hearing to finalize the adoption of his older brother, Mason.

"She is a part of our family, and it doesn't feel weird at all," Millgate said. "She comes to our family events because she's a part of it now."

The goal is for Logan to know his personal history to the point he's not overwhelmed with questions later in life, she said. 

While every adoption is different, Millgate said if birth parents can help foster healthy relationships with the children they place for adoption, it can be positive for all involved.

"Birth mothers love their babies and want to do what's best for them. In our experience, it's more helpful to have the contact," she said.

Increasingly, adoptive parents are agreeing to open adoptions. While some adoptive parents and birth parents come to an understanding about their expectations, the agreements are not legally enforceable, said Sen. Lyle Hillyard, R-Logan.

Hillyard, who handles adoptions as part of his law practice, is sponsoring SB155 to change that. He said his interest in the issue stems from handling the case of a birth mother facing a state petition to terminate her parental rights.

"It became very clear working through the case that we probably could have consented to the termination, and her parents, who had basically raised the children during all the trauma the mom and dad had been through, could have continued to have contact with the children. But it was explained to me under Utah law, you cannot enforce any such agreement," Hillyard said.

SB155 was heard by the Senate Judiciary, Law Enforcement and Criminal Justice Committee on Tuesday, though Hillyard said the legislation is not in its final form and he would bring a substitute bill to committee later in the legislative session.

Hillyard said he intends to limit the open adoption legislation, initially, to adoptions of children in the state foster care system.

While members of the public could not comment on the bill in its final form, people who testified before the Senate committee were divided on the concept of enforceable open adoption agreements.

Larry Jenkins, a Utah adoption attorney, said much depends upon individuals involved. In the case of his nephew, who was adopted, visits from his birth mother were a negative experience. 

"Every time there's been contact with the mother, it's created more problems than not," Jenkins said. "He's literally turned into a mess every time there's been contact."

David Hardy, a past president of the Utah Adoption Council, said there is no consensus on the issue among adoptive parents.

"There's certainly concern we're cheapening the parental relationship if you have an enforceable agreement," Hardy said.

Stan Swim, of Pleasant Grove, who has served six years on the National Council for Adoption and is an adoptive father, said the council opposes enforceable agreements that can have the unintended consequence of rendering a child "a bargaining chip."

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