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Independent Adoption on the Increase

By Mark T. McDermott, J.D.
Published in Resolve for the journey and beyond, Fall 2009

Interest in domestic adoption has increased recently due to a number of factors. Inter-country adoption has become more difficult since countries that have traditionally placed large numbers of children with United States citizens have either ceased out-of-country adoptions (e.g., Guatemala) or imposed restrictions that have deceased the number of placements (e.g., China). The Hague Adoption Convention went into effect for the United States on April 1, 2008. Although that treaty provides important protections, its implementation has caused a general slow down in adoptions from other countries. Information from the U.S. Department of State indicates that the number of inter-country adoptions fell from 19,613 in 2007 to 17,438 in 2008, which was the lowest level since 1999. The downturn in the economy has also caused a focus on domestic adoption since it is less expensive than inter-country adoption. (See International Adoption article by Richard Gibson)

The increase in domestic adoptions over the past year has been documented in the media. The 2009 Adoption Guide (www.theadoptionguide.com) published by Adoptive Families magazine cites not only a recent USA Today survey but also the magazine’s own survey identifying the increase in domestic adoptions. The magazine’s own study also showed that the majority of respondents were matched with a birth mother in less than 12 months and that domestic adoption fees are less than international adoption fees. The Adoption Guide documents the fact that more than 20,000 newborn babies are adopted in the U.S. every year with only less than 1% being legally contested after the relinquishment of parental rights.

The majority of newborns placed for adoption in this country are placed through the independent (non-agency)adoption process. As recently as 2006, the Virginia Department of Social Services reported that 70% of the newborns placed for adoption in Virginia are placed through the non-agency adoption process. The difference between the two types of adoption is simple from a legal point of view. In an agency adoption, the parental rights of the birth parents pass to an adoptive parent in a two-step process. The birthparents’ rights are first relinquished to an agency. The second step involves the agency giving consent to adoption by the adoptive parent. In an independent adoption, the parental rights of the birth parents pass directly to the adoptive parent in a one-step process (i.e. the birth parents give consent directly to the adoptive parent selected by the birth parents).

Adoption is almost exclusively controlled by state law. Whenever more than one state is involved, it is critical to determine which state laws apply. Independent adoptions are usually finalized in the courts of the state in which the adoptive parent resides, and the laws of that state control. In some states,a non-resident adoptive parent has the option of finalizing the adoption in the courts of the birth mother’s state. If that option is selected, the laws of the birth mother’s state will be the applicable laws.

Since the laws from state to state vary so dramatically, it is imperative to work with an experienced adoption attorney. As a resource, check for members of the American Academy of Adoption Attorneys by visiting www.adoptionattorneys.org.

The District of Columbia, Maryland and Virginia local jurisdictions, as well as the majority of other states, require that an adoptive parent identify the birth parent without a paid intermediary making the connection. One example of a paid intermediary would be the attorney who represents either the adoptive parent or the birth parent. The connections are usually made through word of mouth or advertising. A prospective adoptive parent should meet with an adoption attorney licensed in the adoptive parent’s state and have that attorney explain the local law and recommend search techniques.

Those who have experienced infertility know the feeling of loss of control that occurs during medical treatment, and especially when the infertility doctor states with finality: “There is nothing more that we can do for you.” As an adoptive parent who experienced both infertility treatments and the independent adoption process, I felt a sense of empowerment during my daughter’s adoption that I never felt during all the years of our medical treatments. Through the education that organizations like RESOLVE and Families for Private Adoption (www.ffpa.org) provide, an adoptive parent can become informed and feel empowered during the adoption process.

Mark T. McDermott, J.D., a Washington, DC, attorney, is licensed in the District of Columbia, Maryland, and Virginia. He is past president of both the American Academy of Adoption Attorneys and RESOLVE of the Washington, D.C., Metro Area. He is also an adoptive parent.