Are Laws Regarding Reimbursement of Expenses a Good Idea?

In the past couple of years, the adoption field has become increasingly concerned about reports of birthparents "shopping around" to find the highest bidder to pay for expenses during and after pregnancy. Several convictions of baby-selling and cases of pregnant women collecting money from several potential adoptive couples have gotten the attention of the media and general public. NCFA has long been opposed to classified "advertising" for adoptable infants because it creates a "market-place" putting birthparents and adoptive parents in the position of negotiating a deal. On the other hand, some adoption agencies have argued that since there is so much activity through advertising, it is important for agencies to be involved to provide protection for all the parties.

One non-governmental response to protect prospective adoptive parents from losing their life savings on an adoption which never occurs, has been the development of insurance by several carriers. Although the insurance can be expensive, it also can provide protection against the predictable situation when a birthparent changes her mind. (It should be kept in mind that adoption agencies report that approximately 50% of women who come to an agency planning an adoption will change their mind by the time the baby is born.)

One unintended consequence of the availability of this new insurance has been several reports of unethical individuals who have no intention of placing a child for adoption after receiving financial support from prospective adoptive parents, recommending that the prospective adoptive parents purchase the insurance. NCFA has also heard of adoptive parents taking more risks when a situation does not appear appropriate because they have insurance to fall back on, further allowing abuses.


Just recently, NCFA has heard from legislative staffs in two states looking at ways to stop abuses that appear to be increasing. One state wants to mandate that all money paid to birthparents be reimbursed to prospective adoptive parents if the birthparents do not follow through on the adoption plan. The other state is considering the opposite tack which says that any money provided to birthparents be considered a charitable contribution and would allow no provision for reimbursement.

NCFA is concerned about both provisions for a variety of reasons. NCFA is very much concerned about the lack of protection for adoptive parents in many adoptions currently. The message is that most potential adoptive parents hear is " if you don't meet the demands of the birthparent, you will not be allowed to adopt" and therefore people are putting themselves in very difficult situations. NCFA is troubled that some couples, having spent their life savings paying for the medical expenses of a birthmother who decides to parent, are unable to adopt because of a lack of financial resources. However, NCFA would oppose any legislation which would require reimbursement because it would have the practical effect of committing a birthparent to an adoption at the point that financial assistance is provided by the prospective adoptive parents.

Traditionally and appropriately, the final adoption decision cannot be made by a birthmother until after the birth of her child. Additionally, a consent to adoption must be uncoerced. Most birthparents who accept assistance from adoptive parents do so because of need. It is unlikely that many of them would be able to reimburse payments and would be coerced into adoption because of their lack of resources to repay the prospective adoptive parents.

On the other hand, some birthparents do have the resources and would not only be willing, but desirous of reimbursing prospective adoptive couples for the birth of their child, if they do not go through with the adoption plan. Adopting couples are not charitable institutions and clearly the reason that they paid for the birthmother's expenses was because it was anticipated that the expenses were being incurred for the birth of the child they expected to adopt. Adoptive parents willingly pay for all expenses related to their child and do not expect birthparents to incur costs for the adoptive parents' child. However, understandably many birthparents and adoptive parents are perplexed when prospective adoptive parents are expected to incur the costs of a child born and raised by a birthparent who is a virtual stranger. Legislation which would prohibit birthparents from reimbursement.

Rather than addressing this complex issue with legislation either requiring or prohibiting birthparents reimbursing adoptive couples, it appears that efforts should be made to regulate up-front payments for birthparent expenses. To avoid the temptation of manipulation from both sides, adoptive parents and birthparents should not be allowed to directly negotiate payment. States may want to look at their laws on allowable expenses and make appropriate amendments. States can also add protections by requiring that all payments from adoptive parents to birthparents be preapproved and handled through a licensed agency or certified adoption professional. This would prevent the situation of a birthparent asking prospective adoptive parents for financial or other support and adoptive parents offering financial or other support. The court should then review all payments to ensure that they are appropriate.

This arrangement should also help to prevent fraud, since the agency/professional intermediary should be better able to spot inconsistencies than prospective adoptive parents who are not trained and who are emotionally vulnerable. Further, the agency/ professional intermediary should be providing counseling and therefore be in a position to see if a birthparent has changed her mind about adoption so that the professional can direct the birthparent to the appropriate services for her parenting plan.

Most adoption agencies, as charitable institutions, provide free services and support to pregnant women regardless of their parenting or adoption plan. Adoptive parents pay fees related to the adoption of their child, but are not responsible (unless it is a designated adoption) to pay fort he expenses of a child they do not adopt. Sometimes fees to adoptive parents include additional costs to help the agency pay for the services to women who receive service, but choose to parent. Adoptive parents understand that in order for them to receive services from the agency, they must help to cover some of the other costs the agency incurs to keep its doors open. This practice allows adoption agencies to provide services to birthparents and adoptive parents separately to meet each of their needs without any conflict of interest.

Unfortunately, independent adoption does not generally provide the same protections. The birthparent's process of choosing adoption for her child is entangled with the adoptive parents' process of adopting a child, sometimes leading to conflict as the needs of each compete. In the past several years, one positive move in adoption is that many attorneys and other intermediaries in independent adoption have begun to operate more like agencies by providing some of the protections for both birth and adoptive parents such as counseling for birthparents and home studies for adoptive parents.

The challenge is creating a system in both independent adoption and agency adoption where pregnant women are not dependent on prospective adoptive parents for support and services and adoptive parents are not made to feel responsible to fix all the problems a birthparent may have in order to adopt a child.

Credits: National Council for Adoption