April 30, 2004 -- Open adoptions, as opposed to traditional adoptions, allow birth parents to stay involved in their children's lives even after the adoption has been finalized.
Twenty years ago, 1 percent of domestic adoptions were open. Now, 60 percent to 70 percent of domestic adoptions are open, which is why many agencies, whether advocates or opponents of the trend, offer open adoptions as an option.
Map: Laws on Open Adoption Agreements State by State
Although many still consider open adoptions controversial, those who have researched the practice say that some of the fears are unwarranted. Harold Grotevant, whose Minnesota/Texas Adoption Research Project has followed 720 active adoption participants for more than 15 years, says, "For people who want to do an open adoption, we have found no evidence that it is harmful." Grotevent does add a caveat: "It makes your family more complicated. It is not necessarily the best route for everyone."
A Shift in Power
"Birthmothers have a lot more control than they used to," says Marianne Berry, one of the leading open adoption experts in the country. "They get to decide who gets their babies."
It wasn't always this way. As recent as the 1970s some birthmothers never saw their children after delivery. Some women were tied down and blindfolded in the delivery room to avoid the possibility of eye contact — and the possibility of further bonding — with their babies. For those who had the opportunity to see and hold their babies, the relationship was often short-lived; case workers, whose job it was to ensure secrecy and silence, would quickly surrender the babies to waiting adoptive parents with whom the birthmother had never had, and would never have, contact.
The past quarter century brought about great change in domestic adoption. As the stigma of unwed motherhood waned, more women found the freedom to choose parenting over placing their babies for adoption.
A general decline in the number of unplanned births — and, consequently, babies available for adoption — can be directly linked to three major cultural developments: the 1973 Supreme Court decision to legalize abortions, a rise in infertility rates, and a growing use and acceptance of contraceptive methods.
In the few open adoption studies that have been conducted, the findings reflect the impact of these developments. One study estimates that 30 years ago there were 89,000 domestic adoptions. Only five years later that number had dropped to 48,000. Today, only about 20,000 to 25,000 infants are placed for adoption in this country. Meanwhile, according to an estimate by America's Pregnancy Hotline, well over 200,000 families try to adopt each year.
Many would-be parents, faced with these realities, have gone overseas to adopt. As a result, international adoptions tripled in the time period between 1992 and 2001, growing from 6,472 to 19,237.
For those seeking to adopt a domestic white infant, the challenge today is often not so much in finding the right baby but in winning the heart of a birthmother, the only person with the sole discretion to determine who will adopt, and then go on to raise, her baby.
According to rough estimates, as many as one third of birthmothers withdraw from the adoption process, even after selecting adoptive parents. It is perfectly legal to do so; until they've signed final relinquishment papers, birthmothers are allowed to change their minds without consequence.
For the would-be parents, the process can be excruciating. Many couples are convinced the adoption will go through (and are allowed to be present during delivery or even to hold the baby), only to later learn the birthmother has backed out of the agreement and has no intention of handing over her baby.
Once a birthparent has signed away his or her parental rights, however, the adoptive parents assume all legal rights to the child. The birthparent has no recourse and cannot undo the adoption.
But the law is no pacifier for the fear many adoptive parents have: what if a birthmother shows up unannounced after the adoption has gone through and wants to reclaim her baby? "This is unfounded," claims Rueben Panner, whose work in the field of adoption goes back to 1953. "I have never seen this happen. A good agency will take the steps to ensure this doesn't happen, through proper counseling."
In fact, there are instances where birthparents have gone to court in the hopes of invalidating the adoption. In many of these cases, the claim is made that the adoptive parents reneged on their promise to allow for contact or visits between the birthparent and the child. Each state has responded in its own way such disagreements, and the laws continue to evolve as more cases are brought before the courts.
Twenty states do have laws that allow enforcement of open adoption agreements, but that enforcement is most often mandated only if the court sees openness as best for the child. Nine states won't enforce these agreements, which means that birthparents in those states have no legal recourse once the adoption has been finalized. In the remaining 21 states, the statutes are vague or don't address the issue of open adoption, and the decision of whether to enforce is left to the discretion of the courts. As more cases come before the courts, the laws continue to change.
Click here for U.S. map showing laws on open adoption agreements state by state.