Open Adoptions & Legal Issues
Open adoptions have become much more common in the last 30 years. In the past, having a child outside of marriage was seen as being shameful, so part of the purpose of adoption was to keep it a secret. Now that it is much more socially acceptable, many families have found that some degree of openness in the adoption is preferable for the adoptive and birth families as well as the child.
What Makes an Adoption Open?
With “closed” adoptions, state laws vary regarding how much access an adoptee receives to information about their birth parent(s). Some states do not allow any kind of access. Others allow adoptees to access some limited information once they turn 18 or if they show “good cause.” Still other states have registries to which birth parents and adoptees can provide their information, and if there is a match, only then can information be accessed. The laws of the 50 states vary widely in the degree that they protect the identity of birth parents versus the right of adoptees to access information about their biological relatives.
How "Open" Is an Open Adoption?
Open adoptions vary widely in their degrees of openness. Sometimes an “open” adoption is one in which the adoptive family has information about the birth parent(s). In other open adoptions, there is an ongoing relationship between the birth parent(s) and the child and adoptive family. This may include visits or phone calls. Between the two extremes are open adoptions in which adoptive parents agree to send periodic updates and pictures to the biological parent(s).
Procedures for Open Adoptions
Open adoptions can be agency adoptions, independent adoptions, facilitated adoptions, or almost any other kind of adoption. The defining feature of an open adoption is that the biological and adoptive parents come to an agreement about what their obligations to each other will be after the adoption is finalized. The vast majority of adoption agencies allow open adoptions, and some will only do open adoptions.
Enforceability of Post-Adoption Agreements
One of the big issues with open adoptions is how enforceable the post-adoption agreement will be. Once again, the specific laws vary among the states. Generally, states will allow adoptive parents to override post-adoption agreements if they find that it is in the best interests of the child. Some states refuse to enforce post-adoption agreements at all because they believe that this infringes on the rights of the adoptive parents. Other states specifically allow enforcement of post-adoption agreements.
In other scenarios, there may be court-ordered openness. This will generally occur when the child is adopted from foster care and already has a relationship with their biological parent(s), but they are not able to parent full-time. In all open adoptions, adoptive parents need to accept to the provisions of the agreement for the adoption to go through.
Risks and Benefits of Open Adoptions
While an open adoption may not appeal to some people at first, child welfare professionals are increasingly finding that open adoptions result in better outcomes for the child. However, especially in states that are still hostile to open adoptions, there is sometimes a risk that either prospective adoptive parents or birth parents may agree to an open adoption but fail to follow through.
One of the biggest benefits of an open adoption is that the child has a connection to their biological and cultural history. This can be especially important in transracial adoptions. It also can help maintain the bonds between the child and their extended biological family. Knowing who and where they came from can help adoptees to better understand the circumstances of their adoption. This may be especially important for older adoptees who already have a relationship with their biological parent(s). Finally, it saves adoptees from needing to engage in difficult and sometimes fruitless searches for their birth parent(s).
