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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

November 11th, 2011 by Robert Franklin, Esq.
The seamy underside of adoption is the buying and selling of children to be adopted.  That’s what the Oklahoma case In Re Baby A is all about.  Here’s an article about it (NewsOK, 5/23/10).  And here’s the case itself (FindLaw, 5/4/0).

I’ve written a lot about adoption, particularly referring to the ease with which adoption laws cut fathers out of the lives of their children.  Utah is particularly bad about doing that, but 29 states have some form of putative father registry that are specifically designed to avoid notifying fathers when their children are being placed for adoption.

Putative father registries are the short way to keep a father from asserting his parental rights to his child.  They take the fact that adult men know that sex can produce babies and pretend that it always does.  That way the laws creating putative father registries can require every unmarried man who has sex with a woman to file a form with the appropriate state department claiming paternity of the child, whether there is one or not.  Failure to do so means he won’t be allowed to contest his child’s adoption, if the mother wishes that to happen.

Absurd as that may be, it gets worse.  Most states do little or nothing to publicize the fact of the registries, the effect of failing to file, how to file, etc.  The unsurprising result is that few men know about the registries or what their purpose is, so few men file the requisite forms.  So when their child comes up for adoption, the court looks at the records of the putative father registry for the state and, finding no filing, green-lights the termination of the father’s rights without notice to him.  Simple as that.

States with out PFRs have some form of requirement that the father have “abandoned” the child, and so it is in Oklahoma.  In those states, the father of the child is required to do certain things to prove that he hasn’t abandoned the child.  Those things include paying the mother’s medical expenses during pregnancy, providing money, food, clothing, housing, etc. to her.  Going to the hospital when she gives birth is good too.

The things a father must do to avoid termination of his rights should the mother decide to place his child for adoption are nowhere published and it’s entirely up to the discretion of a judge to decide whether the dad met his obligations or not.

So it should be clear that, whether a man lives in a PFR state or not, his ability to prevent the adoption of his child is not up to him, but to the mother.  In PFR states, the chances that he knows about the registry are slim and none, but even if he does know and files the correct forms, Mom can just take herself and her child to another state to do the adoption.  That state’s judge will dutifully check that state’s registry, if it has one, and, finding no dad for the child, will complete the adoption.  That’s exactly what the mom did in the Kevin O’Dey case about which I’ve written a couple of pieces.

In a non-PFR state, all she has to do is conceal her pregnancy from the father.  That’s usually easiest done by breaking off relations with him.  If he persists, she can call the cops and complain of harassment, stalking, or the like.  A simple lie to the court that she doesn’t know who the father is will be sufficient to deprive him of notice, and even if he learns somehow of the adoption, he’ll be deemed to have “abandoned” his child, so his consent to the adoption won’t be necessary.

But the even uglier part of adoption law is the buying and selling of children.  That of course is supposed to be illegal, but it happens anyway.  Here’s how:  every adoption case costs money.  There are fees for the lawyers, of course and court fees.  There’s always an investigation into the prospective adoptive parents to see if they’re likely to give the child a good home.  That’s all to be expected.  But there’s also a category of expenses that is wide open to the charge of buying and selling children – living expenses for the mother.

Mothers often decide to place their children for adoption long before they’re born.  So, during pregnancy, she can have her living expenses, medical expenses, travel expenses, etc. paid.  That money comes from the adoptive parents, who want the child and want the mother to be as happy and comfortable as possible.

Now, all of that might be hunky-dory if anyone paid attention to how much was being paid and for what.  Supposedly trial judges do that, but In Re Baby A strongly suggests that they don’t.

In Re Baby A is really about excessive attorneys fees, private investigator fees, etc.  The nut of the matter was that the lawyers in the case found an adoptive couple who were apparently pretty well-to-do, and, as happens so often with well-heeled litigants, the fees went up accordingly.  It cost the adoptive couple almost $150,000 to adopt the child.

And in all of that, only about $12,000 went to the mother for her living expenses.  That was for about 10 months prior to the birth, so, as the Oklahoma Supreme Court said, that doesn’t look to be excessive.

But, as the song says, “it ain’t necessarily so.”  That’s because, as in the Baby A case, the judge didn’t pay much attention to how much the fees were or what they were for, even to the extent of allowing fees prohibited by statute.

Worse, attorneys have been known to pay mothers under the table and charge it as something else.  Face it, a lot of these mothers are strapped for money and facing the costs of a pregnancy.  The line between paying her legitimate living expenses and paying her for her child is not a bright one and is easily crossed.

At one point, the practice got so bad in Oklahoma a grand jury was convened to look into the baby market called adoption.

Adoption costs have been a sticky issue in Oklahoma County for years.
Oklahoma County became known across the country as a place where birth mothers wouldn’t back out because they were taken care of, [public defender Bob] Ravitz’s assistants contended. The reputation allowed local attorneys to artificially increase rates to take advantage of well-heeled out-of-state couples.

In 2006, a state grand jury reported adoption judges were so indifferent or grossly incompetent in overseeing expenses that birth mothers basically were allowed to sell children for cars, televisions and vacations.

The grand jury found attorneys mislabeled improper expenses, often calling them toiletries. The hidden expenses included car parts, traffic tickets, criminal case fees, driver’s license fees and utility bills.

It’s what Oklahoma Supreme Court Justice Steven Taylor called “the subtle as well as the apparent buying and selling of children.”

In short, particularly where the adoptive couple is wealthy, there’s a pot of money there for the taking, and everyone in on the deal wants some.  Mothers know that placing a child for adoption is a sure way to get a larger piece of the pie than many have ever seen.  Attorneys and adoption agencies are happy to facilitate the “transaction,” and adoptive parents have no reason to do anything but turn a blind eye.

It’s the buying and selling of children, particularly newborns, and it happens often in this country.

Needless to say, a father who wants to care for his child just gums up the works.  After all, if the adoption doesn’t get finalized, a lot of people don’t get paid, and if they do, not nearly as much as if it did.  So it’s in everyone’s interest, as they see it, to keep Dad out of the picture altogether.  To that end, putative father registry laws get passed and fathers’ rights to their children get placed in mothers’ hands.

Adoption is mostly a good thing; it can give loving parents to children who would otherwise have none.  You can’t argue with that.  But adoption laws should make sure that every child who’s adopted needs to be adopted.  To force adoption on children with fit fathers who want to care for them deprives other children who desperately need them of loving adoptive parents.  That’s just plain wrong.

Adoption law as it stands in this country opts for the financial transaction over the rights of fathers.  Adoptive parents want a child and are willing to pay to get one.  Everyone else wants to get paid, and neither they nor the law will allow a father to stand in the way.  If fit fathers lose their children and children lose their fathers, well, as Madelyn Albright said in another context, “we think the cost is worth it.”

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