Adoptions Prior to Legal Statutes
Adoption is the process whereby a child is removed from his/her biological parents and placed with non-biological parent(s). Adoption was practiced by the ancient Romans, Greeks, Egyptians, Babylonians, and is referred to in the Bible and other religious texts.
Adoption Records In The United States
The first adoption statutues went into effect in the 1850's. Prior to that time, children were transfered to substitute parents without legal recognition of the adoption.
From the beginning of American colonization, formal procedures existed for recording births or name changes. This opened the door for informal adoptions. Often these informal placements were economically motivated. Child labor was in great demand, especially for farm owners and adoption provided an alternative to hiring expensive workers.
Industrialization in the United States resulted in massive immigration to major cites where families often were unable to support or care for their children. Informal transfers of these children to other families, by either the indigent parents or the charitable institutions where parents sometimes left their children, promoted these types of placements. This situation provided the impetus for the orphan trains between 1854 and 1929.
At the same time the concept of indentured servants also existed, but this differed from the informal adoptive placement. There was some hope or expectation that children placed in informal adoptive settings would receive care, support, and perhaps education from their new home. Only if a formal will was executed, however, would the informally adopted child be permitted to share in the estate of the new parents. Indentured servitude, on the other hand, was premised solely on the concept of the child providing labor for support until he or she became an adult. Children were often treaded as chattel with adoption being little more than a transfer of title.
Indenture was abolished by the 13th Amendment in 1865 and by the Industrial Revolution which moved crafts out of the home and into factories.
As the number of informal adoptions rose, the need became greater to have a formal process for adoptions. In 1851 Massachusetts enacted the first adoption statute. Adoption pursuant to the Massachusetts statute required judicial approval, consent of the child's parent or guardian, and a finding that the prospective adoptive family was of sufficient ability to raise the child.
In reality, the concepts discussed in the Massachusetts statute, and the later laws adopted in other states, were not implemented in the manner seen today. Between 1850 and 1930, statutes may have referred to consent, but rarely set parameters regarding when or how consents were taken. Virtually no safeguards existed for ensuring that a consent was informed and voluntary. By 1917 Minnesota required the agency or state welfare department to investigate and make recommendations to the court. While early adoption statutes required a finding of suitability on the part of the prospective adoption home, this requirement was more form than substance. Finally, while early adoption statutes created a defined relationship between the adoptive parents and the adopted child, the impact on the ties to the biological parents was unclear. For instance, under some statutes adopted children retained the right to inherit from their biological parents.
The treatment of adoption records was similarly confusing. Early adoption statutes made no provision for confidentiality or the maintenance of records. Original birth certificates were not altered or secreted in court files to prevent their distribution. As a result, adoptive families and biological parents had no legal protection with respect to intrusions upon each other's lives following an adoption.
In the early twentieth century statutes began to address the confidentiality of adoption information as to the public at large, but not between the parties to an adoption. It was not until the 1930's that statutes evolved which were designed to preserve the exclusivity of the adoptive home.
Record Closure
During the 1930's. 40's, and 50's, social workers began sealing birth and adoption records. The rationale for the change in practice was guided by the attitudes, mores, and myths of the time. Secrecy surrounding adoptions was believed to protect the triad members.
The birth parents were protected from the stigma of pregnancy without the benefit of marriage.
The adoptee was protected from the stigma of illegitimacy and the concerns of "bad blood" which was loosely connected to what we know about genetics today, but carried with it overtones of the "sins of the father." Secrecy would also prevent the confusion of having two different sets of parents and the conflict that might arise should contact occur.
The adoptive parents, often an infertile couple, were protected from the stigma of raising an "illegitimate" child. They were protected from dealing with their infertility and from facing the differences between being a parent through adoption vs. being a parent by birth. Closed records also precluded the possibility of birth relatives seeking out the child, an event associated with potential kidnapping.
Healthy Anglo babies were plentiful in a time when an unmarried woman had little or no choice whether to place her baby for adoption. This readily available supply of babies had ramifications on adoption practices.
Social workers had complete control over adoptive placement decisions. Services were geared toward providing the most perfect baby for adoptive applicants.
Both sets of parents were explicitly or implicitly promised anonymity. Little, if any, information was shared between them, and any "facts" supplied may well ell have been fictitious.
The parties involved were encouraged to "get on with their lives" and "put this event behind them." Adoption was viewed as the placement and legal process, not as a permanent state. They were given no preparation to deal with future issues which were bound to arise. The very existence of these issues was denied.
Adoptees who held questions of identity, ancestry, and genetics had nowhere to turn for answers.
Adoptive parents had been assured that if they were good parents, no curiosity would exist. Therefore, when faced with questions, they often felt insecure and inadequate. If their child had questions, they had somehow failed. A Public Affairs pamphlet from 1969, "You and Your Adopted Child", states, "Instances of extreme curiosity and concern almost never happen... However, should a youngster ever raise the question, it is important, of course, to make it very clear that a search is unrealistic and can lead to unhappiness and disillusionment."
With the sealing of records there was also little or no legal recourse for the adoptee to access information.
Other reasons given for the closure of records, past and present, include:
The Impact of the 1960's and 1970's Revolutions
Legal Issues
Home Studies
In 1891 Michigan enacted the first statute requiring judicial investigation into a prospective adoptive home prior to the final approval of an adoption. by the 1930's most statutes and courts required investigation of the adoptive home. These investigations had varying degrees of complexity. Today, virtually every state requires some form of investigation into the suitability or fitness of the individuals seeking to adopt. The investigation usually involves a report referred to as a home study.
Generally, home studies are conducted prior to the placement of the child with a family. Sometimes it is following the placement of a child with a family but prior to the finalization of the adoption.
Voluntary Termination of Parental Rights
"Parental" consent to an adoption is almost a uniform requirement of all adoption statutes. Consent is the most common method to achieve a voluntary termination of parental rights. Who is defined as a "parent," however, varies from state to state.
Biological but unwed fathers had no recognized rule until the 1970's. In many states, biological unwed fathers still do not have a presumptive right to consent or veto an adoption, but merely a constitutional right to notice and an opportunity to be heard. In some cases, the unwed biological father may have a constitutional right to consent or veto where the birth father has "earned" that right by establishing paternity following the child's birth, or depending upon the law of the state where the adoptive placement occurred, the role of the biological father in the adoptive process may vary dramatically.
Involuntary Termination of Parental Rights
Statutes detailing the ground upon which parental rights may be involuntarily terminated commenced in the 1970's. In Santoski v. Kramer, 455 U.S. 745 (1982), the United States Supreme Court held that parents have a fundamental interest in the care, custody and control of their children, but not an absolute right. The due process clause of the United States Constitution requires that severance of a parent's rights be supported by clear and convincing evidence.
Generally, state statutes view involuntary termination of parental rights as an action of last resort. Statutes normally require that efforts be made to preserve the family relationship. What efforts must be taken and to what length those efforts must go prior to termination varies from state to state. Normally, efforts must be reasonable and diligent but not futile.
Public Agency Adoptions
The Department of Economic Security (D.E.S.) handles most of the adoptions for children who come under their care due to abuse, neglect, or abandonment. Some districts will also directly handle the voluntary placements of newborns and young children when a family requests such services. In general, children adopted through D.E.S. have been in the foster care system for months or even years. Many are identified as having special needs. Typically, the child has not had contact with the parents for some time, and there is no plan for continuing or future contact.
Private or Attorney Adoptions
The distinctions between private (attorney facilitated) adoptions and agency adoptions have lessened in recent years. Until recently, agencies often had specific requirements for prospective adoptive parents including age, number of other children, length of marriage, etc. In particular, agencies often required that one parent commit to remain at home following an adoptive placement. Private adoption was an alternative to those who did not fall within all of these criteria, or who wanted to take a more aggressive role in locating a prospective birth parent who might wish to place a child with them. From a birth parent's perspective, private adoption was sometimes viewed as a viable alternative because they wanted to feel more in control of obtaining knowledge regarding the adoptive home and the selection process.
Attorneys working in private practice provide access to most of the same services as adoption agencies. While attorneys cannot provide counseling, most attorneys skilled in the area work closely with social workers, and sometimes adoption agencies, in providing counseling support for birth parents and adoptive parents.
Perhaps the biggest distinction between private and agency adoptions in the 1990's is cost. Agencies generally amortize their costs and have a flat fee arrangement with their clients, although non-profit agencies generally utilize some form of sliding scale approach, depending upon income levels. Thus, if a birth mother places a child post-birth with an adoption agency, the agency is able to charge its normal fee for the placement of that child without having incurred any significant expense in the process. On the other hand, the adoptive home incurs no liability in the case where the placement of a child may have generated debt to the agency that far exceeds the amount of the fee.
In the private sector, the cost of the adoption depends entirely upon the circumstances of the particular adoptive placement. Thus, if a birth mother has her own insurance or has no medical needs, the adoptive couple will not have that expense. Where a birth mother has no insurance, the adoptive couple may need to entirely assume the risk for medical expenses, with no guarantee that the birth mother will ultimately place her child post-birth. Thus, while it is possible for a private adoption to be economically far less expensive than an agency placement, the reverse may also be true.
Today, private adoption generally has a larger degree of flexibility than many agency adoptions in terms of permitting the birth parents and the adoptive home to design a plan as to how an adoption will proceed. Agencies and attorneys often act in concert.
Amended from original texts authored by:
Rita Meiser, Esq. and Marcie Velen
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