As this year's legislative session nears conclusion, a variety of bills touching adoption are on the table. Because law develops incrementally, sometimes it helps to step back and consider the basic premises that should guide adoption policy and how changes measure against those guides.
Every adoption begins in imperfection. The legal process that follows attempts to reconcile a mixture of desires, interests and claims that cannot all be perfectly satisfied. Confidentiality and birth-fathering rights are today's most active questions, addressed this year by HB256, SB229 and SB246. How should our law treat these situations, and whose claim is most important?
Consider three basic premises as guides:
The right of first instance and importance is the children's right to life, a right they have no later than birth, and which they cannot initially assert themselves. They and we logically look to the mother and father whose procreative act gave them life. We say they have claim on parental support until the children reach adulthood. While their parents fulfill this basic duty, our law recognizes a right for parents to execute that duty however they believe best serves their child.
Erik Erikson, noted scholar on human development, says it this way: "Defenseless as babies are, they have mothers at their command, families to protect the mothers, societies to support the structure of families, and traditions to give a cultural continuity to systems of tending and training." Erikson's word choice signals the primacy of the child's claim on her parents.
The first premise then is this: Parents' rights at law exist to encourage fulfilling duties owed to the child. The law owes childless people nothing — there is no right to a child. By contrast, the law owes parentless children its best effort — the child has a right to a mother and father.
Ever more experience shows that unwed fathers and unwed mothers respond differently to parental duties. Most often the men walk away from their part, leaving the women to continue the work that began with pregnancy. When men stay but don't marry, federal data indicates their households are at least 10 times more likely to experience significant physical, emotional and sexual abuse. Here begins the legal inequality that birth fathers often experience in adoptions. We assume birth mothers are more likely to nurture and stay with the child — because that's what we see with millions of unmarried households, not just with birth mothers — so we give birth mothers greater deference.
The second premise emerges: Parental rights follow acceptance of parental duties. The state should recognize unwed fathers who fully engage, but it is prudent and reasonable to follow experience and favor the mother's judgment until the man steps up to join her.
Compared to closed adoptions typical of past decades, today's adoptions have high levels of openness between birth parents and adoptive parents. An essential enabler of openness is, ironically, the legal presumption of confidentiality. Beginning on that basis, parties to the adoption work out a balance that fits their personalities, needs and situations. Each step toward openness is a gift of trust between the parties, giving the adoption emotional stability that benefits the child. What if the law instead presumes openness? Each step away from openness would signal discomfort or distrust between the parties, destabilizing the adoptive relationship to the detriment of the child.
For parties to closed adoptions who desire openness, Utah and other states operate mutual consent registries. These offer parties the means to reconnect if both desire to do so.
The final premise: We are learning that open adoptions can bless the lives of all parties, and there is reason to believe that future adoptions will be largely open. But the best way for the law to encourage healthy openness is to presume confidentiality and allow the parties to adapt as they choose.
SB229 and SB246 seek to prevent abuses of notice and residence requirements for birth mothers, but both miss the mark. Any response to these rare but well-publicized claims should preserve the basic pattern of adoption and acknowledge the real vulnerabilities uniquely confronting birth mothers. Appropriate responses include sanctioning services that clearly misuse legal requirements. Regulators sanctioned one such agency only days ago using existing laws.
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HB256 unwisely reverses the confidentiality presumption for adoptions on or after Jan. 1, 2015. My experience adopting three children, understanding of national trends and conversations with birth mothers and adoptees across the country suggest this change will poorly serve children who need families.
Remember that adoptions begin with imperfection. Law should serve the vulnerable child first. Utah takes children and family seriously and should enact or adjust laws consistent with that seriousness.
Stanford Swim is a former chairman of the National Council for Adoption. He and his wife have adopted three children.