By David Hardy // Attorney
Why does it cost so much?
That question, in various forms, is regularly asked of adoption professionals. Usually it comes from parents hoping to adopt, but others ask it as well, including judges.
Several years ago, an adoption agency retained me to represent it after a judge, during an adoption finalization hearing, demanded that the agency appear separately and justify its fees. It was a concerning demand, as the agency feared that a judge’s whim would prevent it from charging its usual fees. That, in its view, would prevent it from operating. In response to the judicial demand, we broke down the fees and expenses before the judge, pointing out the various elements in the cost of an adoption, including medical expenses, legal fees and agency overhead. After what seemed like several hours of mind-numbing detail, the judge concluded that the fees and costs were, in fact, reasonable.
Agencies make similar presentations for prospective adoptive parents on a daily basis.
One significant element in the cost of adoption is the payment of birth parent expenses.
These can be difficult to predict, as the circumstances and needs of birth parents differ. They also present some tricky legal and ethical questions as agencies and adoptive parents seek to meet a birth parent’s needs while avoiding the illegal and morally depraved practice of buying and selling children.
Some years ago, I attended a conference in which a presenter argued against payment of birth parent expenses. She had observed that any such payment, whether made before or promised after a child’s birth, had an impact on a birth parent’s decision to place for adoption. Thus, a mother who had received several thousand dollars for rent and living expenses believed it unfair for her to withhold her consent to adoption, even though she felt a desire to parent following the child’s birth. Similarly, mothers who were promised payment of expenses following consent to adoption had a financial incentive to place. In each of these situations, the presenter believed the payment of expenses to be improperly coercive, undermining the supposed free and voluntary consent to adoption.
Although I believe the presenter made some valuable points, I was unsatisfied with the notion that the law might forbid prospective adoptive parents from providing financial assistance. To me, it seemed to me exploitative that a birth parent suffer financial stress, medical need, and emotional upheaval in connection with a pregnancy and adoptive placement, only to be told by adoptive parents or an agency that the law prevented them from providing relief and assistance.
I’ve had ample opportunity to consider these issues. I regularly recall with discomfort a judicial relinquishment hearing in which I first met with the birth parents about fifteen minutes before we were to appear before a judge. As I started to explain what to expect, I was interrupted by the birth father, who bluntly expressed his unwillingness to prepare for the hearing unless I first showed him the check they had been promised to cover expenses. I did so, but then I felt a need to spend extra time in preparation (and perhaps annoying the judge), ensuring that their desires were based on the child’s best interests and not on their desire for a down payment on a new truck.
I’ve come to the conclusion that the proper approach for birth parent expenses is one of balance. The payment of expenses is appropriate, but it should be viewed primarily as a means of ensuring maternal and fetal health and not as a way to pamper or enrich birth parents. I’ve identified a few guidelines to assist in paying those expenses:
- Know the applicable law and follow it. In some states, the payment of expenses is limited by amount or type of expense. In others, payment needs to be approved. Deviating from established legal standards is unwise.
- Bear in mind that the payment of expenses is an act of charity. Seeking or anticipating a refund is inappropriate.
- Make a budget. Without established limits, expenses can spiral out of control, as birth parents identify needs that they do not realize they had. A budget can allow both birth parents and adoptive parents to have an expectation of what is available.
- Wherever possible, pay merchants, landlords and medical providers directly. The appearance of cash payments directly to birth parents is negative and should be avoided whenever possible.
- Make sure expenses are related to the pregnancy and adoption. While the payment of college tuition may benefit a birth parent, the appearance is of exchanging money for a child. The same may be said of non-maternity clothing, vehicles, or furniture that are designed for use long after the adoptive placement.
By respecting these guidelines, agencies and prospective adoptive parents can find appropriate balance between the unlawful sale of children and unjust exploitation of birth parents.