Should Biological Parents Have More Rights in Adoption? A Hypothetical Conversation

By SHERRY F. COLB
Wednesday, Dec. 13, 2006

Last month, the Evan B. Donaldson Adoption Institute issued a report ("the report") recommending that the law provide greater protection for birth mothers and biological fathers in the adoption process. The report describes birth mothers as "the least understood and most stigmatized participants" in the world of adoption. The report proposes, among other things, that birth mothers receive better counseling, more time to change their minds, and legally enforceable post-adoption contact agreements (providing for visitation).

Paying homage to my profession, the report's author said that part of why birth mothers suffer as much as they do is that attorneys handle many adoptions: "[t]here are a lot of sharks out there, manipulating [birth mothers] in every way they know how, and the laws don't prevent that in most states."

Current and Former Law on Birth Mothers' Rights

In about half of the states, women can give irrevocable consent for adoption within four days of birth, though the report's recommendation is that they should have at least a few weeks in which to make this momentous decision. Driving the point home, the report asserts that "[i]n many states, you can change your mind about buying a vacuum cleaner or taking out a mortgage within a prescribed time period, but most states do not have a revocation period during which a mother can change her mind about relinquishing her child." The report suggests that biological fathers should have greater protection as well, including the right to be notified of pending adoptions.

As compared to a half-century ago, it is worth noting that birth mothers have come a long way. The report acknowledges that many U.S. adoptions are now "open," with communication and regular contact between birth mothers and adopted children. Such arrangements, and any protection they might receive under the law, are in the best interests of birth mothers.

Birth Mothers' Experiences, in the Pre-Roe v. Wade Decades and Now

As Ann Fessler eloquently documents in her book, The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe v. Wade, the decades prior to Roe v. Wade witnessed a very large number of pregnancies hidden in maternity homes and ending in young women being pressured to surrender babies that they truly wanted to keep. Parents, social workers, and others participated in essentially coercing young girls to sign away their infants to "better" families - a euphemism for married couples. The book tells the poignant stories of these girls many years later as they struggled as women to cope with the grief and loss that virtually no one would even acknowledge and that continue to plague many of them to this day.

Women "in trouble" in the United States have more options today, at least for the moment. With the greater availability of contraception and safe and legal abortion came the ability to avoid having a fully-formed child wrenched away only days after labor and delivery. Moreover, with the explosion in single-parent (usually single-mother) households, women who want to keep their babies no longer inevitably face the threat of being ostracized and outcast by family and the surrounding community for raising a child without a man.

Still, economic realities continue to exert their own pressure, and it remains true that abortion is no substitute for accommodating the young mothers who quite reasonably want to keep their children while also pursuing an education and a career.

What makes this issue a difficult one, in a variety of respects, is that there are several different parties involved - children, birth mothers, biological fathers, and adoptive parents - and each party has its own somewhat distinct interests. Rather than argue for a particular position in this column, I will try to capture the perspective of each involved party by assuming the personas, in turn, of a hypothetical adopted child, birth mother, biological father, and adoptive parent. I do not pretend to speak for the entire universe of involved parties, but I hope here to bring to light why the controversy is unlikely to resolve itself any time soon.

The Child's Perspective

I was adopted as a baby and will now reflect on what the law should say about the rights of birth mothers and biological fathers. I grew up at a time when adopted kids were not always told that they were adopted. There was a stigma attached to the status. From a very early age, though, I knew of my origins, and my parents tried to make me feel special for it.

I was very happy with my adoptive mom and dad, and I think of them as my "real" parents. Nonetheless, when I was young, I was always curious about the lady who had held me in her tummy and who could not keep me. I wondered whether she looked like me, whether she liked the same jokes or the same kinds of food as I did. When I was angry with my parents, I daydreamed about whether I might have been happier with those other people.

I have to say, though, that part of my biological parents' charm was their unreality. I am not sure whether I would have wanted actual contact with them. Once I became old enough, I looked into the possibility of meeting my biological mother and father, although I didn't search much before giving up. Maybe I'll try again some day.

If they were nice people, then it might have been fun to have more relatives who loved me, but it also might have been strange. I don't know how it would have affected my parents or whether they would have felt safe enough to adopt me if they'd been legally required to continue sharing me with my birth parents. Also, if they'd had to wait for the birth mother (or biological father) to change her mind, then they might have gone to some other state or country to adopt a child whom they could have had all to themselves from the moment of adoption. If so, then I'm glad the law was as it was.

I know it must have been hard for my mom to give me up, but once that happened, my interests properly came first. I was the one person without any choice in the matter. And my interests say that my adoptive parents should get to decide whom I see - just as "regular" parents are able to make such decisions. Otherwise, it's more like foster-parenthood, which has not worked out that well for people in the United States. If the best model for adoptive parenthood is biological parenthood, then maybe adoptive parents should have all of the same rights and authority as biological parents have. I guess I am not thinking that much about my birth mother, but I believe the child should come first.

One last thing - it says in this report about adoption that people get to change their minds about their vacuum cleaner or their house, but not about a baby. If that is another way of saying that owners have more rights than biological parents, then I cannot say I have a problem with that. If people decide not to buy your house because they don't want to risk falling in love with it and then having to give it back, then you're the only one who suffers. A house doesn't have feelings or needs, so it isn't surprising that second thoughts are better tolerated when property, rather than a baby, is involved.

The Birth Mother's Perspective

I disagree. An important bond develops between a woman and the developing child inside her during pregnancy. A baby recognizes her mother's voice and her mother's scent. Breastfeeding is the healthiest approach to nourishing the child, both physically and emotionally. If I had been allowed to stay in my baby's life, I would have given him so much love. I would have nursed him and held him and told him how special he was to me. I also could have educated his adoptive parents about things that came up as he got older, because so much of our personalities is genetically programmed.

I cannot help but think that a child who grows up with adoptive parents will wonder, "Why did my mom give me up?" and if I had had the right to visit with my child regularly, I could have reassured him that it had nothing to do with him and everything to do with poverty and need. In a sense, giving children up for adoption is the tragic result of our society's failure to support - truly support - mothers who want to keep their babies. It is not a decision that people make under tolerable circumstances. If my son had seen me, he would have known viscerally just how attached to him I remained.

Suppose I had been able to keep my son. Even though his biological father wanted to have nothing to do with me, as the father, he would still have been able to visit with his child. Why can't I - the person who gave birth to my son - have that same right to visitation? Adoptive parents should realize that birth mothers remain a part of a baby's life, whether or not the baby gets to see them. Isn't it therefore better for babies to have the opportunity to spend time with their birth moms rather than experience an enormous loss that they cannot even name?

In addition to the child's interests, of course, birth mothers have interests too, and they ought to count for something. If a woman keeps her baby, no one questions her right and need to be near that baby. It seems cruel to me to say that if she cannot keep the child - and the decision to surrender a baby is possibly the most painful one that a parent can make - then she must move on with her life as though the whole relationship had never happened. After I gave birth, my whole body knew that my son should be there, and my heart was broken to have to say goodbye forever.

Maybe adoptive parents want to pretend that they are the biological parents, and I understand their wanting to do that. But they are not, and there is a real flesh-and-blood person who is left behind and who - much of the time - would have done anything to see that baby again. Society needs to take the interests of birth mothers into account and give us the right to think long and hard about the adoption decision. We also need the right, even after surrendering our precious children, to spend time with people who remain ours in a fundamental sense.

I do not think most people understand the desolate feeling of having a child taken away from you forever. There's an assumption that severing all ties between the baby and the birth mother is what everyone wants and needs, but the assumption rests on the view that we birth mothers are something less than we are, and that we have less to offer our children - even through visitation - than we really do.

The Biological Father's Perspective

I feel a bit out of my element here, because both the biological mother and the adopted child seem unaware of my role in all of this. I realize that I was never pregnant, but becoming a father is life-altering, and I should have rights as well. After all, if my girlfriend had decided to keep our baby, then I would have been responsible for supporting the child, regardless of whether I wanted to become a father. Isn't that the law's way of saying that once you sleep with a woman, the baby she has is yours? Well, if that's true, then I should get to decide whether I want to relinquish the baby and - if I do - how much of my relationship with the baby I am willing to give up.

When I signed papers saying that I waived my rights and responsibilities as a father, it was because my ex-girlfriend at the time could not take care of a baby, and neither could I. But if I had known that I could have insisted on spending a day with the kid every week, I would have preferred that. It didn't even occur to me to ask, though, because no one was thinking about me as more than an inconvenient obstacle to overcome. How can people expect men to become more nurturing and involved with their children when their paternity is treated with so little respect?

I think a lot about the little girl who might have been mine, and I wonder whether she's happy and what she's doing with her life now that she's grown. It seems to me that fathers are treated alternately as money bags and sperm donors, depending on the needs of the child, the interests of the biological mother, and the desires of adoptive parents. We biological fathers fall through the cracks.

The Adoptive Parent's Perspective

As an adoptive parent, it is difficult for me to read what others have said. Most people who adopt do so for the same reasons that motivate people who decide to have a family the conventional way: They want a child with whom to share their lives. Some people treat us like saints, and others treat us like baby thieves. We are neither. Most of us are just like everyone else, though we may lack the ability or opportunity to have biological offspring. It is not right to expect us to share our children when no other parent is asked to do that.

If I knew who my son's biological parents were, I would want to initiate contact with them and then judge for myself whether it would be better for him to have them in his life, in the same way that I and other parents who have custody of our children make such decisions for our kids every day, whether the issue is contact with grandparents, aunts, uncles, or other loving people who might want and feel entitled to contact.

There is no reason for the law or the biological parents to doubt that I have my child's best interests at heart. Even though my spouse and I did not give birth to him, we were carefully screened in a way that biological parents are not. Anyone who has the physiological capacity to reproduce on her own (or who can afford to pay doctors and donors to assist her in reproducing) can do so without undergoing any scrutiny at all and then claim a right to the resulting child that is virtually absolute.

Those of us, however, who are not fertile or who cannot - for financial, religious, or medical reasons - undergo in vitro fertilization, must prove to social workers and the government that we are fit parents and that we will raise our children lovingly and responsibly. As the only people who must satisfy such a licensing standard for parenting, it would appear that we are the best equipped to judge whether and when it is in our children's interest to spend time with biological parents. Allowing birth mothers to extract concessions from us because we are so desperate to become parents can hardly be described as in the best interests of the baby.

It is unfortunate that many people do not have the means or the emotional ability to take care of a child who was born to them. Perhaps the birth mother is correct that a better society would fund destitute parents, although the U.S. is moving in the opposite direction. But adoptive parents did not create the reality in which birth mothers and biological fathers find themselves, and we should therefore not be forced to "sponsor" biological parents by taking on the responsibilities of parenthood without acquiring the right to act on our children's behalf, a right that a biological parent has as a matter of course.

It is indeed tragic that many biological mothers have felt that they had no options other than to surrender their children completely, and I feel, as do most adoptive parents, a debt of gratitude to my son's biological mother for going through with her pregnancy and creating the beautiful child who so enriches my life. Is that exploitative? Perhaps, but would it be any less exploitative to allow the biological parents to set the terms of adoption, simply because they happen to have been blessed with the capacity to reproduce?


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book When Sex Counts: Making Babies and Making Law, will be published by Rowman & Littlefield in early 2007.