The
issue of Open Records deals with regulations which may or may
not permit an adoptee to automatically, at some age, obtain identifying
information relating to the birth parent. The laws on Open Records
do vary from state to state and may include the right of an adoptee
to obtain a copy of his or her original birth certificate, with
or without the consent of the birth parent.
Open Adoption on the other hand deals with the relationship of
the adoptive parents and the birth parent(s) in arranging the
placement of the child for adoption. This article deals with Open
Adoption.
Save for the fact that Open Adoption deals with openness among
the adoption triad, there is no precise definition of Open Adoption.
Its meaning will depend upon the degree of openness and, accordingly,
it is a relative term.
Initially, let us understand that the act of adopting another
human being comes about through a legal proceeding, where one
other than the birth parent takes on the obligations and responsibilities
of a parent, and the birth parent, except in a step-parent adoption,
surrenders the rights and obligations of parenting the child.
Under the laws of adoption, the adopting parent(s) become “the
parents” of the child for all intents and purposes. There
are no enforceable rights reserved or chipped away by the birth
parents.
Recognizing that time changes many things, the fact is that a
quarter of a century or more ago, most adoption placements took
place in sort of a vacuum. Agency adoptions were more prevalent
many years past because it was a means of keeping an out of wedlock
pregnancy secret. It was a time in our society and culture when
out of wedlock pregnancy was deemed more of a stigma and a condition
to be frowned upon.
Accordingly, when a woman did become pregnant out of wedlock,
to hide the event she did normally place the child with a public
or private agency who took legal custody. By operation of law,
the agency became the custodian of the child and as such took
on the authority to place the child with individuals as they saw
fit. The birth was kept reasonably secret in that the birth mother
was immediately removed from the picture.
As time progressed, out of wedlock pregnancy has become less of
a stigma to society and the need for secrecy has waned. As this
openness progressed, literally one couple in the State of Florida
came up with the ingenuity of placing a classified ad in a local
newspaper indicating their desire to adopt, and seeking a birth
mother who would be interested in placing a child with them. The
ad succeeded in the couple’s achieving their desire to adopt
a child. The results of today speaks volumes, in that approximately
80% of adoptions come about through the placement of ads in public
periodicals. Although anonimity has and is still maintained, in
most cases, as a matter of course, birth parents do now converse
with the proposed adopting parents by telephone and, accordingly,
they now make the decision as to with whom they place the child.
This direct placement has erased the element of secrecy and from
the beginning of such course of placing ads the first degree of
open adoption took place.
As time went on the degrees of open adoption did widen and so
today one may possibly find the following as additional forms
of openness:
1. Openness, where in addition to just talking by telephone, the
parties may choose to meet personally at some point prior to actual
relinquishment and placement of the child. Such meeting may be
at the hospital, post birth, and generally is a one time meeting
on a first name basis,thus maintaining anonymity.
2. A further degree of openness may occur, when the parties never
meet in person, but do mutually agree that the adopting parents
will send photos of the child to the birth parent(s) for a designated
period of time post placement. The adoption parents may also provide
an update on how the child is “doing”. Such arrangement,
if at all, may go on for a few months or longer and the attorneys
for the respective parties generally serve as the intermediaries
in passing on the mailings. In New York and in most states such
agreements do not have binding legal effect, but I do advise my
clients that it does create a moral obligation and one should
not make a promise they do not intend to fulfill. Although well
intentioned, birth mothers have no need to feel guilt in making
an adoption placement, I have found that when birth mothers request
photos and periodic updates, it is a manner of disguising their
feelings of guilt. As I say there should be no feeling of guilt
harbored by a birth parent since one making an adoption plan,
for purely the child’s best interests, is performing one
very brave act.
Any of the above situations may be designated as a form of Open
Adoption.
A final form of placement, which some classify as Open Adoption
but which in fact is better described as Cooperative Adoption,
is when the parties to the adoption mutually agree to some form
and degree of personal contact with the child and the adoptive
family on a relatively continuous basis post placement and post
finalization of adoption. In some situations of this nature, the
child may be told that the birth mother is the person within whose
body the child developed and in other cases the birth mother is
introduced as an aunt of the child or some other degree of relationship.
I myself question the viability and potential for complications
of such an arrangement in any form. That is especially so when
the birth parent is introduced into the family as an aunt or the
like. Such an approach seeks to cover the potential complication
with a total fabrication of the facts.
Cooperative adoption and the other forms of Open Adoption are
not the norms in domestic private adoption. If and when they do
occur, it is an exception to the general rule. Without judging
the nuances of open adoption, I recommend that the parties be
totally analytical and comfortable with the potential and should
not act out of desperation.
One final word of advice. Although adoption creates a new family
body, being open and honest with the child is an important obligation
of those who do adopt. Do not live a lie. I believe that a child
should be made aware of adoption at the earliest possible age
and before they even understand the concept of adoption. They
should be informed of their biological heritage and their questions
should be answered with honesty and clarity, age appropriate.
It is my belief that if adopting parents are truly comfortable
with the concept of adoption, the child will, in most cases, grow
up comfortable with adoption. “Children learn what they
live.” And for sure adoption is not the second best way
of having a family, it is an alternate way of having a family.
