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Gestational Agreements

Parties can legally enter into agreements that require a surrogate mother to relinquish her parental rights when she gives birth on another couple’s behalf. The use of these agreements protects couples who cannot have children on their own and who want to use a surrogate to carry their child through the use of an assisted reproductive procedure, such as in vitro fertilization.

The agreement prohibits the use of the gestational mother’s eggs in the assisted reproduction procedure. Additionally, the intended parents must be married. The agreement is an enforceable contract.

TIP: Laws authorizing the use of gestational agreements have not been enacted in all states.

What is an open adoption?

An open adoption generally includes on-going communications between the birth mother (and father) and the adoptive parents. Sometimes, the adoptive parents’ duties to the birth mother are set out in a contract. The provisions might include sending a photograph once a year, regular telephone calls and e-mails, saving all letter and cards to the infant from the birth mother, and having the child meet the birth mother at a certain age. Typically, however, the birth parent and adoptive parents have an informal agreement.

What are "baby broker" laws?

Baby broker laws prohibit unlicensed individuals from placing babies for adoption.

The laws require adoptions to go through licensed agencies; unlicensed persons are "baby brokers" and may be prosecuted for criminal offences.

If the adoption is never finalized, is a baby broker law still violated?

Yes. The laws generally prohibit an unauthorized person from having any significant role in the placement activities. The actual finalization of an adoption is not required for the law to be violated.

TIP: "Significant" placement activities include contacting prospective adoptive parents or natural mothers about the possibility of adoption, attempting to change a mother’s mind when she becomes reluctant to allow the adoption, coordinating the actual transfer of the child from the mother to the adoptive parents and receiving more money than the amount of medical and hospital expenses related to the birth of the child.

Can the natural mother find adoptive parents without breaking baby broker laws?

Yes. The natural mother, her parents or guardian, or other close relative may seek out adoptive parents.

Can an adopted child sue the placement agency if she was placed in an unfit home?

Yes. It may be possible to file a lawsuit against an agency for negligent placement, if the agency did not fulfill its responsibilities to investigate the adoptive parents.

SIDEBAR: Once the adoption is finalized, the placement agency has no duty to continue to supervise, investigate or protect the child. Of course, the placement agency (typically the state’s child protective service agency) has a duty to protect the welfare of a child in foster care prior to adoption.

Can an adoption agency charge a fee for placing a baby?

Yes. A private placement agency may charge for its actual fees and expenses, and is allowed to establish a sliding scale based on the adoptive parents’ gross income. For example, the agency may charge 15% of gross income up to $15,000. The formula varies according to state laws.

Laws prohibit charging fees unrelated to the adoption. Adoption-related fees are typically limited to the mother’s medical and legal expenses, plus other expenses incurred as a result of her pregnancy (maternity clothes, for example). An adoption agency can also charge prospective parents for legal fees the agency incurs, an application fee, the cost of required home studies and reports, the cost of parental training, and the cost of counseling to all the parties involved.

SIDEBAR: There are laws that list allowable birth mother expenses. Payment of the following expenses is generally permitted:

  • living expenses such as rent, food, utilities, and clothing (typically there is maximum such as $1,000 per month);
  • medical expenses including prenatal care, delivery, and other pregnancy-related medical expenses (post pregnancy medical care for a number of weeks is usually allowable);
  • transportation to access medical, legal, counseling and adoption services;
  • legal services related to the termination of parental rights and adoption process;
  • counseling to assure that the mother is aware of her rights and is not being coerced; and
  • expenses relating to educational, vocational, recreational, and religious services up to a certain amount.

What does a birth mother have to pay to give a baby up for adoption?

Nothing. A birth mother is never charged a fee. The adopting parents pay for all her expenses.

SIDEBAR: Paying a birth mother’s expenses is not the same as "purchasing" a baby, which is illegal. Paying the mother a lump sum after the child is born equates to buying the baby. Additionally, "cash up front" is typically considered an illegal payment.

My husband wants to adopt a child and I do not. Can he adopt the child on his own?

No. Since you are his wife, you are required to participate in the adoption. When one of the parties is married, the petition to adopt must include both spouses.

Can a gay couple adopt a child?

Yes. Laws in most states do not prohibit same sex couples from adopting a child. However, in some states the couple may not be permitted to jointly petition the court for an adoption.

SIDEBAR: A gay individual can adopt because unmarried persons are permitted to adopt children in all states. Only Florida prohibits gay, lesbian and bisexual individuals from petitioning for an adoption.

TIP: Adoptions by same-sex parents are also called "co-parent" adoptions or "second-parent" adoptions. Second parent adoptions occur when the partner of an adoptive parent wants to adopt the child as well.

Can a child be "unadopted?"

Since adoption is a legal process, and legal processes can be undone, laws may allow adoptive parents to revoke the adoption. For example, California laws allow an adoption to be annulled if the child has a developmental disability or mental deficiency that existed but was unknown at the time of the adoption, and that is of such magnitude that the child is unsuitable for adoption.