In most states, the adoption laws provide that potential adoptive parents must be screened to determine if they will be fit parents. Unlike parental rights, which arise in the common law’s overriding concern with the preservation of families, adoption has no common law heritage to give rise to special protections for the rights of potential adoptive parents. The states are free to establish strict criteria for evaluating prospective parents. Whereas these criteria must not violate constitutional protections or federal law, persons may be denied the right to adopt for reasons that would not support terminating their parental rights were they already legal parents. This process has been criticized for giving babies to the highest income couple whose religion and politics agree with those of the baby’s case worker.
As the physician in the Sarosi case discovered, physicians should not second- guess this procedure by trying to set up matches between prospective parents and pregnant women. Physicians have neither the resources nor the authority to investigate prospective parents properly. No physician wants to face the nightmare of finding that the couple he or she recommended became child killers. It is to be expected, however, that some couples will seek private placement because they would be found unsuitable in a parental fitness evaluation. As with the physician’s participation in obtaining a patient’s waiver of parental rights, such matchmaking raises ethical questions about the coercion implicit in the physician–patient relationship. A patient may feel coerced into complying with the physician’s recommendation on placement. As in the Sarosi case, this matchmaking can violate state adoption laws.
Physicians should be cautious about participating in adoptions that are arranged outside the state welfare system or recognized nonprofit agencies. Termination of parental rights and adoption are also implicated in fertility procedures that involve the transfer of a baby from the birth mother or her husband to the family contracting for her services. If the birth mother is profiting from the adoption, if the attorneys or physicians are being paid excessive fees, or if there is a broker, the transaction will violate the baby- selling laws in some states. In states that do not allow private nonagency placements, any involvement with private parties who are seeking to arrange or facilitate adoptions can be illegal. The physician should be especially cautious about participating in adoptions that cross state lines. If the transaction is illegal in either state, there can be prosecutions for kidnapping when the baby is moved across the state line. Physicians who assist private placements should always retain their own attorney to advise them on the legality of each transaction.