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Adoption

Adoptions are proceedings that vest parental rights in a person who is not the child's legal parent. Adoption involves the termination of the legal parent's parental rights and the determination that the potential adoptive parents are fit. All conflicting parental rights must be terminated before an adoption is final. If a parent marries a person who is not the child's legal parent, this stepparent cannot exercise full parental rights unless he or she formally adopts the child. Such an adoption will require the rights of the previous parent, if known and still living, to be terminated. If a married couple, neither of them parents of the child, or a single adult seeks to adopt a child, the rights of both of the child's existing parents must be terminated. Parents may voluntarily relinquish their parental rights in an adoption proceeding, but most states protect the parent (usually the mother) from precipitous decisions concerning termination of parental rights. These protections may include a ban on agreements signed before the baby is born and a waiting period after birth during which the parent may revoke the decision to give up parental rights.

In most states it is illegal to pay parents to induce them to terminate their parental rights. It would be legal to give the mother almost anything as long as she did not give up her baby. It is only when she gives up the baby that coercion becomes an issue. It is acceptable to pay for the mother's medical expenses and support during the pregnancy, but this cannot be conditioned on a waiver of parental rights. Although the courts realize that this payment is an incentive, they treat it as a gift. Payments made after the birth of the baby are suspect because they have no relationship to providing for the mother's and baby's welfare during the pregnancy. Payments to husbands are impossible to characterize as anything other than bribes to terminate their parental relationship. While it is acceptable for physicians to receive their routine fees from an agency or prospective parent, any payment in excess of the fees charged in other situations could subject the physician to prosecution for receiving money in connection with an adoption.

In addition to bans on paying parents, the courts are sensitive to efforts to coerce parents into relinquishing their parental rights. This concern with coercion, combined with the fiduciary nature of the physician-patient relationship, makes it improper for physicians to participate in obtaining a waiver of parental rights from their patients. The physician's legal and ethical duty is to protect the patient's best interests, consistent with public health and safety. If the physician has doubts about the mother's fitness to care for the baby, they should be reported to the child welfare department. Such beliefs are not an excuse for helping the patient by participating in obtaining her waiver of parental rights so the baby can find a good home. Improper participation by physicians is grounds for setting aside the termination of parental rights. This imperils whatever good a physician seeks to do by expediting the child's placement in an adoptive home.


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