Adoption Agencies Sue State Over Out-of-State Mothers' Rights

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(The Salt Lake Tribune)

Each year, more than 100 expectant mothers from other states travel to Utah to deliver their babies and surrender them to adoption agencies.

Their reasons for coming vary -- from the desire to distance themselves from an adoptive family to preferring parents who belong to the LDS Church. Critics suggest other motives in a small number of cases: attempts to avoid birth fathers or stricter laws requiring the fathers' consent in the home states.

Utah adoptions require confirmation by a state judge. But whether the mothers' home state should be told -- and even required to approve -- of a pregnant woman's decision to deliver and place her child across state lines is the thorny subject of a lawsuit filed in 3rd District Court.

The suit stands to decide the level of state scrutiny over such expectant mothers. The surrounding debate wades into the most controversial of subjects: a mother's right to choose what to do with her child.

The lawsuit stems from a warning the Utah Department of Human Services sent to Utah adoption agencies in late 2001, saying it would crack down on those who begin adoption arrangements for out-of-state women without notice to Utah or their home state.

Three agencies sued, contending Utah is incorrectly using the Interstate Compact on the Placement of Children (ICPC), a law drafted in the 1960s and later adopted by all 50 states to protect children taken across state lines for adoptions. Applying the ICPC to unborn children effectively makes fetuses residents of the mothers' home states, and unfairly limits a woman's right to travel, they claim.

"These girls . . . wouldn't come here if staying home was a good option for them," said Salt Lake City attorney Larry Jenkins, who represents Act of Love, Adoption Center of Choice Inc. and ATLC Adoption in the lawsuit. "This potentially eliminates an option for them."

The state says otherwise, contending it has a duty to make sure adoption agencies and expectant mothers are making placements in the best interests of children.

"Any mother who wants to come to Utah for the purpose of giving birth is welcome to do that," said Adam Trupt, policy and planning administrator for the state Division of Child and Family Services (DCFS), "but when there is an agreement with an agency for her to come do that, that's when the compact is activated."

Utah's state court judges review more than 1,500 adoption requests each year, while the state handles about 2,500 ICPC requests -- for children both leaving and entering the state -- each year. Most of the ICPC requests are for children coming into Utah.

Third District Judge Stephen L. Henriod must now decide the issue by interpreting the ICPC, which is applied differently from state to state. A Utah federal judge ruled he did not have jurisdiction over the dispute earlier this month, and it was re-filed in state court.

Utah officials base their position on a 1986 opinion issued by a national association of ICPC administrators. The opinion says expectant mothers crossing state lines as part of a "placement plan" should be subject to the ICPC, lest they be allowed to manipulate the delivery location to escape oversight.

Provo adoption attorney Phillip Lowry commended the state's efforts to enforce the compact. Lowry is representing a North Carolina man who is trying to stop the adoption of his son, who was born and placed for adoption in Utah without the father's knowledge.

"There is unilateral transportation of children going on, and some [mothers] come to Utah to place the children because Utah has a very strict adoption code," Lowry said. "They avoid the ICPC because that presents the chance that the natural father will find out. And if the natural father finds out, he can enjoin the mother from going out of state."

Under Utah law, fathers who want to pursue their rights to a child born outside of marriage must register with the Department of Health before the infant is relinquished to an adoption agency.

A Utah judge found that Lowry's client waived any claim to his son because he had not registered. Lowry argues the father should not have to establish paternity in Utah because he, his son and the child's mother all are residents of North Carolina.

Lowry said notification to home states could prevent similar cases, by allowing fathers to more easily find out where the mothers of their children go to have their children.

The three adoption agencies suing in state court argue that applying the ICPC to unborn children is easier said than done -- and while states wrangle, adoptive families and babies often are left in limbo.

Some states will not process the paperwork needed for ICPC approval before the child is born, said Act of Love founder Kathleen Kunkel and Megan Hardy, who has supervised the ICPC process at Act of Love for five years.

Trupt of the DCFS said inconsistency is not the state's problem. "The fact is, if other states don't apply it the same way, it may be frustrating for the agency . . . that doesn't mean that our interpretation is wrong," Trupt said.

The three adoption agencies contend the state has another interest in overseeing birth mothers who come to Utah: money. Since many of the women they serve are poor and cannot afford proper prenatal care, the state winds up paying for their care when they give birth in Utah.

"The reality is," Hardy said, Utah officials "are trying to stop these birth mothers from choosing where to get their services."
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