ADOPTION LAW SUMMARY
Forms of adoption
Contemporary adoption practices can be open or closed.
- Open adoption allows identifying information to be communicated between adoptive and biological parents and, perhaps, interaction between kin and the adopted person.Rarely, it is the outgrowth of laws that maintain an adoptee's right to unaltered birth certificates and/or adoption records, but such access is not universal (it is possible in a few jurisdictions—including the UK and six states in the United States). Open adoption can be an informal arrangement subject to termination by adoptive parents who have sole authority over the child. In some jurisdictions, the biological and adoptive parents may enter into a legally enforceable and binding agreement concerning visitation, exchange of information, or other interaction regarding the child. As of February 2009, 24 U.S. states allowed legally enforceable open adoption contract agreements to be included in the adoption finalization.
- The practice of closed adoption (aka confidential or secret adoption), which has not been the norm for most of modern history, seals all identifying information, maintaining it as secret and preventing disclosure of the adoptive parents', biological kins', and adoptees' identities. Nevertheless, closed adoption may allow the transmittal of non-identifying information such as medical history and religious and ethnic background. Today, as a result of safe haven laws passed by some U.S. states, secret adoption is seeing renewed influence. In so-called "safe-haven" states, infants can be left, anonymously, at hospitals, fire departments, or police stations within a few days of birth, a practice criticized by some adoption advocacy organizations as being retrograde and dangerous. Closed adoption, lack of medical history and the broken thread of family continuity can have a detrimental impact on an adoptee's psychological and physical health. The lack of openness, honesty and family connections in adoption can be detrimental to the psychological well being of adoptees and of their descendants.
How adoptions originate
Adoptions can occur either between related family members, or unrelated individuals. Historically, most adoptions occurred within a family. The most recent data from the U.S. indicates about half of adoptions are currently between related individuals. A common example of this is a "stepparent adoption", where the new partner of a parent may legally adopt a child from the parent's previous relationship. Intra-family adoption can also occur through surrender, as a result of parental death, or when the child cannot otherwise be cared for and a family member agrees to take over.
Infertility is the main reason parents seek to adopt children they are not related to. One study shows this accounted for 80% of unrelated infant adoptions and half of adoptions through foster care. Estimates suggest that 11–24% of Americans who cannot conceive or carry to term attempt to build a family through adoption, and that the overall rate of ever-married American women who adopt is about 1.4%. Other reasons people adopt are numerous although not well documented. These may include wanting to cement a new family following divorce or death of one parent, compassion motivated by religious or philosophical conviction, to avoid contributing tooverpopulation out of the belief that it is more responsible to care for otherwise parent-less children than to reproduce, to ensure that inheritable diseases (e.g., Tay-Sachs disease) are not passed on, and health concerns relating to pregnancy and childbirth. Although there are a range of possible reasons, the most recent study of experiences of women who adopt suggests they are most likely to be 40–44 years of age, currently married, have impaired fertility, and childless.
Unrelated adoptions may occur through the following mechanisms:
- Private domestic adoptions: under this arrangement, charities and for-profit organizations act as intermediaries, bringing together prospective adoptive parents and families who want to place a child, all parties being residents of the same country. Alternatively, prospective adoptive parents sometimes avoid intermediaries and connect with women directly, often with a written contract; this is not permitted in some jurisdictions. Private domestic adoption accounts for a significant portion of all adoptions; in the United States, for example, nearly 45% of adoptions are estimated to have been arranged privately.
- Foster care adoption: this is a type of domestic adoption where a child is initially placed in public care. Its importance as an avenue for adoption varies by country. Of the 127,500 adoptions in the U.S. in 2000 about 51,000 or 40% were through the foster care system. The main online agency used by the Children's Bureau to offer kids available for adoption in the foster care is AdoptUSKids.org.
- International adoption: involves the placing of a child for adoption outside that child's country of birth. This can occur through both public and private agencies. In some countries, such as Sweden, these adoptions account for the majority of cases (see above Table). The U.S. example, however, indicates there is wide variation by country since adoptions from abroad account for less than 15% of its cases. More than 60,000 Russian children have been adopted in the United States since 1992, and a similar number of Chinese children were adopted from 1995 to 2005. The laws of different countries vary in their willingness to allow international adoptions. Recognizing the difficulties and challenges associated with international adoption, and in an effort to protect those involved from the corruption and exploitation which sometimes accompanies it, the Hague Conference on Private International Law developed the Hague Adoption Convention, which came into force on 1 May 1995 and has been ratified by 85 countries as of November 2011.
- Embryo adoption: based on the donation of embryos remaining after one couple's in vitro fertilization treatments have been completed; embryos are given to another individual or couple, followed by the placement of those embryos into the recipient woman's uterus, to facilitate pregnancy and childbirth. In the United States, embryo adoption is governed by property law rather than by the court systems, in contrast to traditional adoption.
- Common law adoption: this is an adoption which has not been recognized beforehand by the courts, but where a parent, without resorting to any formal legal process, leaves his or her children with a friend or relative for an extended period of time. At the end of a designated term of (voluntary) co-habitation, as witnessed by the public, the adoption is then considered binding, in some courts of law, even though not initially sanctioned by the court. The particular terms of a common-law adoption are defined by each legal jurisdiction. For example, the US state of California recognizes common law relationships after co-habitation of 2 years. The practice is called "private fostering" in Britain.
How adoptions can disrupt
Disruption refers to the termination of an adoption. This includes adoptions that end prior to legal finalization and those that end after that point (in U.S. law, the latter cases are referred to as having been dissolved). The Disruption process is usually initiated by adoptive parents via a court petition and is analogous to divorce proceedings. It is a legal avenue unique to adoptive parents as disruption/dissolution does not apply to biological kin.
Ad hoc studies, performed in the U.S., however, suggest that between 10 and 25 percent of adoptions disrupt before they are legally finalized and from 1 to 10 percent are dissolved after legal finalization. The wide range of values reflects the paucity of information on the subject and demographic factors such as age; it is known that older children are more prone to having their adoptions disrupted.
Adoption by same-sex couples in the U.S.
As of May 2012, adoption by same-sex couples was legal in at least some jurisdictions of about twenty states in the US.