FAQ

Adopting a child domestically or internationally is a wonderful, loving way to build a family. Approximately 19,000 children were adopted from abroad in FY 2007, an increase from approximately 11,000 in FY1996. However, international adoptive placements into United States have declined more than 15 percent over the last several years, especially from China, Russia and South Korea. Adoptions from some other countries have increased.

Most adoptive placements are successful despite the potential risks of birth parents who may challenge pre-adoptive placements and attachment and other difficulties that sometimes complicate international placements. However, the pre-adoptive process can be personally stressful and legally complicated since it may involve the adoption law of one or more states, if you are adopting domestically, and of Massachusetts, federal immigration law, and the law of the child's country of origin if you are considering adopting a child from another country. It is important to become an educated consumer as you begin or continue your quest to build your family. One of my goals is to assist you in doing this.

Individual circumstances differ in each adoption. However, it is vitally important that you adhere to state, federal, and foreign country laws in every situation. Sometimes an Adoption and ART Attorney can assist you in this process. Here are some questions to consider:

• How can an attorney help me in the adoption process?
• How can an attorney help develop a plan?
• How can an attorney help with specific legal issues?
• Should I use the adoption agency's attorney as my attorney?
• How do I adopt a child from another country and how does the Hague Treaty apply?
• What are my adoption rights under Massachusetts law?
• How can my attorney help with post-placement contact between adoptive parents and the birth parent(s?)
• How can I find an Adoption and ART Attorney?
• Should I readopt a child that I have adopted in a foreign country?
• How can my attorney help me if the placement of my internationally adopted child isn't working out in my family?
• How can my attorney help me to become the guardian of a child who needs a family?
• How can my attorney help me with a step-parent adoption?
• How can my attorney help me if I want to have a child by means of egg donation, sperm donation and/or gestational surrogacy?
• How can my attorney help me if I want to be an egg donor?
• How can my attorney help me if I want to be a gestational carrier?

How can an attorney help in the adoption process?

A knowledgeable, experienced Adoption and ART Attorney can help explain, simplify, and organize the adoption process and outline your options. In addition to describing general adoption procedures, the attorney can clarify the relevant adoption laws, regulations, and procedures in your state. If you are considering adopting a child from another state or from another country, your attorney can consult with an experienced attorney who is familiar with the laws of that state or country, and can explain them to you and/or refer you to that attorney.

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How can an attorney help develop a plan?

Your attorney can assist you in weighing the advantages and difficulties involved in using various methods and resources, both nationally and internationally. These include working with in-state, out-of-state, and international adoption agencies; using the Internet as a resource for finding birth parents; conducting an advertising campaign; and utilizing other networking techniques. Your attorney can help you to develop the legal aspects of a plan that is as practical and legally secure as possible and that is specifically tailored to your needs.

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How can an attorney help with specific legal issues?

Your attorney can give legal advice regarding issues that may arise during the birth mother's pregnancy, before and after placement, such as:

• Determining what, if any, payments to birth parents for pregnancy and related expenses or other costs are legal and permissible under the laws of your state or other applicable jurisdictions.
• Making sure the birth parents' rights are legally terminated.
• Developing and implementing a strategy in the event that a birth parent becomes uncertain about whether he or she wishes to parent the expected child.

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Should I use the adoption agency's attorney as my attorney?

The adoption agency will present you with a contract outlining its regulations and fees, your obligations to the agency and the child once the placement is made, as well as any other policies and relevant information. Before signing this document, it is essential to fully understand its provisions. You may also want to negotiate some changes in the standard contract to suit your individual needs. Your own attorney, whose job it is to protect your legal rights, can assist you in this process.

Often the interests of the adopting couple or single person may be identical to those of the birth parent(s) and consistent with the best interests of the child. But not always. For example, the birth mother and the agency may wish the child to be placed with the prospective adoptive parent(s) before final surrenders have been signed. The prospective adoptive parent(s) may feel uncomfortable about this potentially risky placement but not wish to alienate the birth parent(s). Or the prospective adoptive parent(s) may want a more detailed medical and/or social history about the birth family than the agency normally provides to its clients.

Thus, if the attorney for the adoptive agency is willing to represent you separately as the attorney's primary client throughout the adoption process, with an explicit conflict of interest clause providing that the attorney will withdraw from representing both you and the agency in the event of a specific potential or actual conflict of interest, you may retain this attorney as your own attorney if you wish to. Otherwise, you should strongly consider being represented by a different attorney during the process.

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How do I adopt a child from another country and how does the Hague Treaty apply?

Some countries, such as Russia and China, permit United States citizens to formally adopt a child in their country, while others, such as Korea, do not, but only permit guardianship to the adopting parents or their sponsoring adoption agency. Some countries, such as Guatemala, permit adoption by proxy but federal law requires re-adoption in the adoptive parents home state. I always advise my clients who have adopted a child from another country to readopt their child in their home state. This protects you and the child from any possible retroactive changes in the law of your child's country of origin which might affect the finality of your child's adoption in any way. It also enables you, if you are a Massachusetts resident, to obtain a Massachusetts birth certificate for your child once she/he has been readopted in your county of residence. Your attorney can also advise you with regard to adoption-related immigration and citizenship questions, as well as the applicability of The Hague Treaty (International Adoption Act), which entered into force in the United States on April 1, 2008. Thereafter, adoptions between countries in which the Hague Treaty is in force will be governed by its provisions. Your Adoption and ART Attorney, if skilled in this area, can determine which countries will require Hague procedures and how this will effect your international adoption plan.

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What are my adoption rights under Massachusetts law?

In Massachusetts, adoption agencies must be licensed by the Massachusetts Department of Early Education and Care (EEC) of the Executive Office of Health and Human Services. (See www.eec.state.ma.us.) Detailed regulations have been issued governing adoption agency practice in Massachusetts, including rights that benefit adoptive and birth parents. (See 102 CMR 5.00 et seq.)

For example, adoptive parents are entitled to receive from their adoption agency all information available to the agency regarding the child's medical history, mental health history, special talents, abilities or interests, race and national origin and any other information that would be relevant to the growth and development of the child. If an agency fails to produce relevant, available information or if it materially misrepresents information regarding the birth parent(s) or child in an effort to secure an adoptive placement, it may be legally liable to the adoptive parent(s). The adoption regulations also outline actions that the prospective adoptive parent(s) may not take. For example, direct payment by the adoptive parent(s) to the birth parent(s) is not permitted and may lead to the invalidation of an adoptive placement. Therefore, consultation with an attorney is very helpful in determining your rights and obligations in the adoption process.

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How can my attorney help with post-placement contact between adoptive parents and the birth parent(s?)

Post-placement contact between the adoptive and birth parent(s) varies from none to periodic letters and photographs exchanged through your adoption agency to more open agreements involving phone calls and scheduled visitations. Your attorney can help you understand these options and, if appropriate, draft an applicable agreement or review with you any agreement proposed to you by your adoption agency. The Massachusetts adoption statute was amended, effective July 1, 1999, to provide a mechanism for court-approved post-placement contact agreements (see M.G.L. c 210, §§ 6C, D and E). Post-placement contact agreements may still be made without court approval but their enforceability is less certain.

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How can I find an Adoption and ART Attorney?

Adoptions may be regulated by three possible sets of law – state law, federal law, and the law of the child's country of origin (if outside the United States) as well as by international treaties affecting adoption such as The Hague Treaty (International Adoption Act). Legal scenarios can be very complicated. Given this diversity and complexity, it is important to carefully select an attorney who is experienced in the particular kind of adoption you are planning to complete.

The American Academy of Adoption and ART Attorneys is the nationally recognized organization for Adoption and ART Attorneys. It is composed of approximately 320 Adoption and ART Attorneys in the United States and Canada. Currently, applicants for membership must have successfully completed at least 50 adoptions to be considered. While there are excellent experienced attorneys who are not members of the American Academy of Adoption and ART Attorneys, the Academy is the largest and most easily available resource for experienced Adoption and ART Attorneys. You can reach the Academy at its website, www.adoptionattorneys.org, at P.O. Box 33053, Washington D. C. 20033-0053, or by calling 202-832-2222.

If you can, get personal referrals too. If you have friends or relatives who have successfully and happily adopted a child, ask them about their experience with their attorney. You may also want to ask the attorney you are considering to give you references of adoptive parents with whom he or she has worked.

Should I readopt a child that I have adopted in a foreign country?

Please read this updated article for the answer.

Readopting Your Internationally Adopted Child©

Over 19,000 children are adopted internationally each year by United States citizens. If you are one of these adoptive parents, should you readopt your child in your home state? The answer is yes, unless:

• You are adopting a child from a country in which the Hague Treaty is in force, and
• You are bringing the child to the United States at a time which the Hague Treaty is in force here as well, and
• You have complied with applicable Hague procedures for full recognition of the foreign country adoption in the United States.

Here in Massachusetts, and in the other states of the United States, we enjoy a broad array of state and federal protections that render final an adoption decree properly obtained upon the expiration of any appeals period. Retroactive changes of substantive law regarding adoption are not permitted. The legal systems of the countries that are the major sources of children adopted internationally into the United States (Russia, China, Korea, Guatemala, Kazahkstan) vary in the degree of diligence which is exercised to provide notice of termination of parental rights and adoption proceedings and an opportunity to object to the birthmother and any named or unidentified possible birthfather. As such, the potential for a retroactive challenge to a foreign adoption decree may exist.

An international adoption treaty, known colloquially as The Hague Treaty, has been subscribed to by many countries and sets forth minimum international standards for the adoption process. However, although Congress passed it and former President Clinton signed it in 2000 as the International Adoption Act, it has not entered into force as the implementing regulations have not yet been finalized, although it is anticipated, however, that the Act will enter into force in the United States in the first half of 2008. As a result, United States adopting parents cannot presently claim its protection in the event of a home country challenge to an international adoptive placement, whether or not that country is a Hague Treaty signatory.

Massachusetts adoptive parents of children born and adopted in a foreign country should therefore readopt their child in a Massachusetts Probate Court. Counsel for the parents should request recognition of the foreign adoption decree under the legal principle of comity and other applicable law and obtain a Massachusetts adoption decree for the child. This will give the adoptive parents and the child full legal protection against any possible subsequent legal challenge originating in the country where the child's first adoption took place.

How can my attorney help me if the placement of my internationally adopted child isn't working out in my family?

You have adopted a child abroad and, despite your best efforts and help from counseling and parenting experts, your child is not fitting in well with your family. You feel that you cannot provide your child with the appropriate help and situation that the child needs. If you find yourself in this situation, you should consult an Adoption and ART Attorney who is knowledgeable and experienced in addressing the legal issues involved in disruptions. Your attorney can also refer you to an appropriate adoption agency that can guide you through the painful but sometimes necessary process of placing your child with another adoptive family who can better meet this child's needs. Even though the disruption of your adoption may be painful and difficult for you and your child, an adoptive placement with another family may be the best outcome for the child. If you and the new adoptive family agree, you can receive periodic information about how the child is progressing.

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How can my attorney help me to become the guardian of a child who needs a family?

You may find yourself in a situation where the parents of a child to whom you are related or with whom you have a close emotional tie are unable to take care of the child, either temporarily or long-term. One possible alternative, if the parent(s) are willing, is to become the child's temporary or permanent guardian until a permanent family placement can be worked out. An experienced attorney with a background in guardianship and adoption practice can help you through the process of guardianship and assist you in deciding on a long-term parenting plan for this child.

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How can my attorney help me with a step-parent adoption?

You may be married to a spouse who has a child from a former marriage or relationship whom you wish to adopt.Your attorney can discuss the necessary legal steps to make this happen. You should be aware that if the child is twelve years of age or older, the child must consent to the adoption before the court will allow it.

How can my attorney help me if I want to have a child by means of egg donation, sperm donation and/or gestational surrogacy?

If you can have a child by egg donation, you may wish to consider sperm donation and/or gestational surrogacy (which means the woman carrying the fetus is not the egg donor). Before this can happen, legal agreements will need to be drafted and signed between you and the egg donor and/ or the gestational surrogate (and her husband, if she is married). Your attorney can draft and/or review the agreement, discuss it with you, and assist you in making sure that you understand it and that your wishes are properly included in it.

How can my attorney help me if I want to be an egg donor?

You may wish to help a couple with fertility issues have a child by becoming an egg donor and working with an experienced well-recognized medical facility to accomplish this end. Your attorney can draft and/or review the agreement which you will need to sign with the intended parents, discuss it with you, and assist you in making sure that you understand it and that your wishes are properly included in it.

How can my attorney help me if I want to be a gestational carrier?

You may consider helping a couple with fertility issues have a child by becoming a gestational carrier and working with an experienced well-recognized medical facility to accomplish this end. Your attorney can draft and/or review the agreement which you (and your husband, if you are married) will need to sign with the intended parents, discuss it with you, and assist (both of) you in making sure that you understand it and that your wishes are properly included in it.

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