Why the Federal Government Must Regulate Adoption

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For years, the argument against greater regulation of adoption by the federal government has been rooted in the notion that adoption is a state law issue. The public thought adoption was a benevolent, philanthropic exercise practiced by charitable organizations donating their services to ensure better lives for orphans. In truth, adoption is big business and inherently interstate in nature. The federal government already tightly controls adoption from foster care. The truth is a powerful argument for immediate federal intervention in fee-charging adoption. By leaving regulation to the states, consumers of adoption services have been left almost entirely vulnerable to unscrupulous providers effectively shielded by distant geography from accountability. Adoption has become a multi-billion-dollar industry with some providers realizing revenues of $15 million annually. With the demand for healthy infants far in excess of the supply, American children are literally being sold to the highest bidders, often to foreign nationals living in other countries. Unfortunately, while unscrupulous facilitators trade in human beings for money, adoption effectively remains the only unregulated business in the United States.

As early as 1955, the U.S. Senate investigated abusive adoption practices. Senator Estes Kefauver of Tennessee held a series of oversight hearings in the Senate Judiciary Committee. In those hearings, Sen. Kefauver took testimony from birthparents, adoptive parents and adoptees. These witnesses detailed hundreds, if not thousands, of chilling stories which outlined a trail of unethical and deceptive business practices, including kidnaping, by adoption agencies coast to coast. The charges included the theft and sale of babies from birthparents who desperately wanted to keep them. Infants with life threatening health problems were placed with unsuspecting adoptive families oblivious to the desperate need their children had for urgent medical treatment. One agency in Tennessee was responsible for the illicit placement of more than 10,000 children in more than forty states in one ten-year period.

Since Sen. Kefauver's hearings more than forty years ago some agencies he targeted are still in business and the practices he exposed have continued. The number of wrongful adoption lawsuits against agencies engaged in careless practices and deliberate fraud are skyrocketing. Unfortunately, efforts to protect the consumers of adoption services have been consistently thwarted by a multi-million-dollar lobbying effort by fee charging adoption agencies and their trade association, the National Council for Adoption (NCFA). It should come as no surprise that some NCFA members were among those targeted by Sen. Kefauver.

For years, the big business interests of adoption have attempted to persuade Congress and the public that their interest in limiting openness in adoption is about privacy for birthmothers. The reality, however, may have more to do with promoting secrecy, limiting liability and preserving profits.

In 1992, NCFA charter member, the Smithlawn Maternity Center in Lubbock, Texas, was the first adoption agency in the United States to be successfully sued under federal racketeering statutes. The suit was filed by adoptive parents of two "healthy" infants. The parents alleged that agency employees concealed serious medical conditions of both children, who had different birthmothers. It was later learned from agency records that one child's mother had taken drugs before and during her pregnancy, while the other child had experienced significant trauma during delivery. The adoptive family also sued attorney George Thompson maintaining that he had a conflict of interest while representing them. While representing the family he also served on Smithlawn's board of directors. Under a subsequent settlement with the adoptive parents, Thompson, three Smithlawn officials and the agency itself were ordered to pay a settlement in excess of $1 million. (Dallas Morning News, 2/13/93)

Another NCFA member, LDS Social Services in Utah (whose affiliates represent over half of NCFA's membership) was sued in 1993 by a birthmother. She had been on Thorazine (a sedative) when the agency obtained her signature on the surrender, two days after the birth in 1967. When she was discharged from the hospital, she did not remember signing the surrender or being drugged. In the next few months she contacted the agency about thirty more times, expressing confusion and remorse over the loss of her son. The agency did not tell her about the drug or about her condition when she signed the surrender, and she did not ask; the agency simply said it could do nothing. In 1990 she and her son were reunited. Shortly thereafter, the agency, through a clerical mistake, gave her a copy of her medical records. After two years of further correspondence with the agency and with officials of the Mormon Church, she brought suit. The Utah courts dismissed the suit on the ground that it was started too late. (Salt Lake Tribune, 5/9/96) (Safsten v. LDS Social Services, Inc., 942 P.2d 949; Utah 1997)

Several stories in the July/August 1998 issue of Adoptive Families Magazine raise concerns about other questionable practices. Consider the following scenarios:
n An adoption agency separated newborn identical twin boys and placed them in two separate adoptive homes 3,000 miles apart despite insistence by their birthmother that they be placed for adoption together. Four years later, their adoptive parents were horrified to learn that the adoption agency could charge each couple the full adoption fee for one healthy infant's adoption-doubling the fee they could collect if the twins had been placed together.
n A college freshman planned adoption for her unborn child and contacted a large Texas agency. When she later changed her mind, the agency told her that she would have to repay thousands of dollars in medical and living expenses and would be prosecuted for fraud for failing to give up her child. Several years later she learned that authorities cannot force mothers in her circumstance to give up their babies.
n An independent facilitator in Massachusetts used a South American attorney to locate and place that country's children. Eventually it was discovered that the children had been kidnapped by the attorney's employee. Though the facilitator was forced out of business, the attorney still practices adoption in his country. The parents of the kidnapped children have no idea where their babies are today.

Stories like the last one illustrate the fact that American adoption consumers are not the only ones who have reason to question some American adoption providers. Around the same time Sen. Kefauver was conducting his landmark hearings, birthmothers in Ireland and Irish officials were making a series of alarming discoveries. They learned that thousands of Irish children who had been placed for adoption in the United States, on the condition that they be placed with Catholic families, were actually auctioned off to the highest bidders by American adoption providers. In some instances, children were placed in homes that had not even been homestudied. The Irish government was sufficiently concerned about these and other unscrupulous practices that, in 1959, they banned all adoptions of Irish children outside Ireland-a prohibition that continues to this day. (Banished Babies by Mike Milotte)

But Ireland is not the only country that has expressed concerns about the ethics of American adoption providers. In the February 7, 1999, issue of the New York Times Magazine, reporter Tina Rosenberg's story "Salvador's Disappeared Children" detailed the work in El Salvador of a search and reunion organization, Pro-Busqueda. Since 1994, Pro-Busqueda has reunited children abducted and sold by Central American military juntas, in some cases to families who were aware at the time of the sale that the children were kidnapped. While Pro-Busqueda has reunited 98 disappeared children with their biological families, they have a list of 434 other families searching for children and children searching for biological families. Fourteen of the abducted children reunited with birth families had been placed for adoption in the United States.

Like Salvadoran birthmothers, poor women in Guatemala also have reason to worry about American business practices in adoption. In 1998, Public Eye, a now-canceled TV news magazine featuring Bryant Gumbal, detailed problems of NCFA member agency, Adoption Associates in Jennison, Michigan. The agency contracted with a Guatemalan attorney who they knew had been accused of stealing children from unsuspecting birthmothers. The birthmothers had been told their children were stillborn. Adoption Associates continued to accept money from American families and accept children from the attorney although the Guatemalan government was investigating him in connection with more than a dozen children and the U.S. Embassy did not recommend that Americans use him.

While human rights activists all over the world applaud the efforts of Pro-Busqueda and decry the abduction of Guatemalan children from their mothers, the silent conspiracy of American officials, desperate infertile couples, naive child welfare advocates and big business interests have combined to stall protections for children and their families. As the market for children grows, agencies short on highly marketable healthy infants have hidden medical and/or emotional problems. The children are sold to unsuspecting families ill-equipped to deal with the children's special needs. Sometimes the failure to disclose can have disastrous results for the adoptive families.

Consider the case of the Thornes of Phoenix, Arizona. You may recall that the Thornes were arrested for child abuse after a tumultuous flight from Russia during which they engaged in a physical struggle with two 4-year-old girls adopted from a Russian orphanage through a Mesa, Arizona agency. Though the agency involved knew that at least one of the children involved suffered from severe emotional problems, both children were held out to the couple as "normal." After the Thornes' arrest, the children were placed in foster care ten thousand miles from their home country. The Thornes, who paid high fees to adopt, now have criminal records and thousands of dollars in legal fees. The agency involved continues to do business with little or no liability for its failure to protect the Thornes or their daughters adequately. (New York Times, 11/2/97)

The Thornes' story also highlights a growing, but little known, side-effect of careless placements by unscrupulous providers. While the number of international adoptions in the United States has doubled in the past ten years, disruptions of those adoptions are increasing at a much faster rate. Previously institutionalized children with severe attachment disorder, fetal alcohol syndrome and other serious problems are entering the already-overburdened U.S. foster care system. The disrupted adoptive families are liable for the cost of foster care. When the adoptive parents cannot pay, the American taxpayers foot the bill. The agencies responsible for placing these children collect hefty fees and have no statutory liability.

Fortunately, this year Congress will take up several vehicles that will contain provisions that could provide meaningful protections for birth and adoptive families. Efforts to ratify the Hague Convention on Intercountry Adoption (the enabling legislation that will be required), a tax credit bill and other legislation all provide opportunities for Congress to hold hearings into abuses and to put safeguards in place. If adoptive parents, birthparents and adoptees band together, the first steps to greater consumer protection in adoption can be completed. In the meantime, organizations responsible for exploiting the consumers of adoption services will continue to spend millions of dollars to keep birthparents and the children they gave up for adoption from comparing notes and healing their lives.

Written by: Maureen Flatley

For more information on the history of adoption practices, please read*:

Wake Up Little Suzy by Rickie Solinger
Hearings on Interstate Adoption Practices, Senate Judiciary Committee, Subcommittee to Investigate Juvenile Delinquency, Eighty-fourth Congress, First Session, 1955-1956.
Banished Babies by Mike Milotte
Babies for Sale: The Tennessee Children's Home Adoption Scandal by L. T. Austin
Wrongful Adoption; Law, Policy and Practice by Madelyn Freundlich and Lisa Peterson
Adoption in America: Coming of Age by Hal Aigner
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