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Tucker Addresses Open Adoption Myth in National Law Journal

Professor Lisa Tucker

September 27, 2022

Professor Lisa A. Tucker wrote an article about the myth of open adoption that was published in the National Law Journal on Aug. 16.

Following the Dobbs decision, Tucker asserts that people need to have accurate information about the realities of open adoption and recognize the potential implications of forced birth.

Supreme Court justices have stated that safe haven laws provide a solution to unintended pregnancy and that open adoption provides suitable homes for newborns. However, adoption is expensive, and potential adoptive parents seeking healthy newborns exponentially exceed the number of infants available for adoption.

In their desperation for a child, some prospective parents may make promises they won’t keep in order to be selected by the birth mother. To boost their chances of selection, prospective parents often enter into post-adoption contact agreements (PACA) that define the type and frequency of contact that the birth parents will have after the adoption is final.

About two-thirds of adoptions involve PACA, but PACA breaches happen in hundreds of adoptions, as the agreements are not legally enforceable in about half of U.S. states.

“In Mississippi and South Dakota, for example, where near-total abortion bans have gone into effect since Dobbs, adoptive parents are free to disregard the terms of a pre-adoption agreement,” Tucker says. “What that means is that, when adoptive parents agree to contact and visitation but change their minds after the adoption is finalized, the birth parents have no rights to enforce contact and visitation promises.”

Studies show if adoptive parents breach PACAs that at least two of the parties (adoptee, birth parents, adoptive parents) suffer.

Another factor: Prospective parents are overwhelmingly white, and typical birth mothers are often unemployed, poor women of color, which creates “a disturbing racial power differential,” Tucker writes, leaving “women who must carry pregnancies to term susceptible to exploitation by an adoption business model that profits from completed adoptions and satisfied adoptive parents.”