Adoption is a legal process through which the legal obligations and rights of a child with respect to its biological parents are terminated. In the process, new rights and obligations are established between the child and the child’s new adoptive parents.
Adoption involves establishing a parent-child relationship between individuals who are not biologically related. As a result of the legal process of adoption, a child is given the rights, privileges, and duties of a child and heir by the family that adopts the child.
Adoption procedures in the United States are regulated by state statute. State adoption statutes prescribe how adoptions can be completed and what the consequences are. State statues also specify the rights and responsibilities of all parties involved i.e., the biological parents, the adoptive parents and the child.
A person must be qualified to adopt a child under the law of the state in which they live. State law also regulates who may be adopted. Almost all statutes require consent of the biological parents to adoption. Most state laws establish detailed requirements for both the form and procedure through which the biological parents may consent to an adoption.
Many U.S. citizens pursue adoption in foreign countries. Each country has its own adoption policies regarding the age, income level, and marital status of prospective parents. Often, foreign adoptions are handled privately. The costs of foreign adoption vary from nation to nation. Other ways to adopt are through adoption agencies and privately arranged adoptions.
Wrongful adoption refers to any type of adoption that involves misrepresentation, fraud, deceit during the adoption process. The people and entities who can be found liable for wrongful adoption may include birth mothers, previous parents, adoption agencies, social workers, and others.
Sometimes potential adoptive parents can be found liable for wrongful adoption or adoption fraud, but usually wrongful adoption cases are filed by the adoptive parents, and in some cases, the person who was adopted (the “adoptee”).
Wrongful adoption usually involves the failure to disclose negative information about the medical or relevant history of either the birth mother or child. For example, in one case, an adoption agency did not tell the adoptive parents that the mother had a history of hospitalizations for psychiatric illnesses. Wrongful adoption cases are serious and may often be filed whether the damages were caused intentionally or negligently. However, the people suing need to prove damages to have a valid claim.
Adoption fraud is a criminal act and involves obtaining money from adoptive parents under false pretences; for example, a person or agency may take the money of adoptive parents on the promise of providing a child to adopt but then fail to produce a child.
What Are Some Examples of Wrongful Adoption or Adoption Fraud?
There are many kinds of wrongful adoption or adoption deception. Most cases of wrongful adoption involve a failure to provide significant information about the parties involved that would affect the physical or emotional health of the child. Adoption fraud usually involves the pretense of adoption in order to get money from adoptive parents or providing a child that is not legitimately available for adoption, e.g. a child who has been trafficked from a foreign country.
Some examples include:
- Demanding the payment of a large amount of money up-front; in most states, this is illegal;
- Misrepresenting the identity of the child or of any parent involved;
- Negligent misrepresentation of medical history, emotional or developmental problems or significant background information about the child’s birth family and history;
- Failing to provide information about the child and the child’s biological family. Agencies should provide adoptive parents with relevant medical and psychological information, including whether the biological mother used any prescription medication during her pregnancy.
- Promising adoptive parents custody of a child, without any real intention of completing the adoption promise; usually involves collecting fees up front and then failing to provide a child;
- Failing to obtain consent of the adoptee when it is required;
- Attempting to complete an adoption without going through the necessary legal formalities.
If a person thinking about adoption is unsure of a particular adoption situation, the person may wish not to participate until they are sure of the information about the situation and the complete history of all parties involved.
What Should I Do to Avoid Wrongful Adoption or Adoption Fraud?
If a person works through an agency, adoption can cost from $8,000 to $40,000. If a person is adopting a child in a foreign country, they can add the cost of traveling to the agency fee. The cost of travel is not included in the amount charged by most agencies. In addition to the financial cost, there is the emotional investment people make in the hope of adopting. Sadly, the amounts of money involved can motivate the wrong kind of people to engage in fraud. It is important to do research before giving money to anyone for an adoption.
One step to take is to read fully and completely all documentation involved in any adoption. Adoption agencies in other countries often have been known to include disclaimers in their contracts so as to avoid liability for wrongful adoption. A disclaimer is a clause that absolves the agency and others of any liability for damage due to negative outcomes. These disclaimers have been upheld as valid in some United States courts. If a person finds disclaimers of liability in a contract, they should not sign and probably should go elsewhere for their adoption.
Other steps that people can take to avoid becoming the victims of fraud in adoption are as follows:
- Get medical proof of the pregnancy: obtain medical documentation of the pregnancy from start to finish;
- Work with an experienced adoption professional: this may be a person’s best guarantee against fraud or misrepresentation; a person should work with an agency that has years in the field and a solid reputation that a person can verify through research; the agency should be licensed and bonded;
- All payments to the birth mother should go through the agency: The costs of an adoption should not change during the process; if the birth mother starts asking for extra payments for whatever reason, this should raise a red flag; a person should contact their agency immediately;
- Have all documentation reviewed by a lawyer: Adoptive parents want to have a lawyer review all of the relevant documentation; if there is no documentation and the adoption appears to be an effort to operate outside legal requirements, then clearly this is a situation in which a person does not want to be involved.
If a person thinks they have been the victim of adoption fraud, they may want to report the potential violation to their local police department, the FBI, state attorney general office, or the National Fraud Information Center.
Are There Any Legal Remedies for Wrongful Adoption or Adoption Fraud?
Cases involving wrongful adoption law are generally pursued in civil courts rather than through the criminal court process. In order to sue an agency and others for wrongful adoption, a person needs to be able to show some amount of measurable damages, such as costs of necessary medical care for the child. A person would sue for negligence on the grounds that an agency failed to uncover significant information that it should have found because the agency intentionally withheld significant negative information.
Remedies for wrongful adoption usually involve filing a civil suit for damages to compensate the adoptive parents for such losses as:
- Loss of companionship between parent and child;
- Accumulated medical expenses (in cases where medical history or records were withheld or falsified);
- Emotional distress;
- Lost wages;
- Adoption process fees;
- In other cases, other remedies may be necessary, such as reversing the adoption process, although this remedy would be awarded only in very rare circumstances.
As for the illegal adoption or outright adoption fraud, these are felony criminal offenses in the United States. They are crimes internationally as well. The consequences of illegal adoption can include a prison sentence and fines if the perpetrator is convicted of a felony offense.
Do I Need a Lawyer for Help with a Wrongful Adoption Claim?
You can expect establishing a case of wrongful adoption to be challenging. You would need to file a lawsuit in court with all of the attendant difficulties. You would probably need the testimony of experts to prove the nature of the damage you have suffered and to quantify it. You are most likely to get the best possible result if you have an experienced adoption lawyer representing your interests.