Adoptions/Surrogacy

Adoption of a child is a process in which a person takes on the responsibility of parenting of that child and receives the transfer of all responsibilities and rights for that child from the biological parent(s). It differs from guardianship as adoption is a permanent change in status.

A surrogacy agreement or arrangement involves the act of becoming pregnant and carrying the pregnancy for the intended parents. There are many reasons why parents may seek a surrogacy arrangement. The most common reason is when there are medical issues that make pregnancy, or the carrying of a pregnancy not possible or a risky venture a for a couple.

Brief Historical Background

The process and laws of adoption of children have changed significantly over the centuries. The first adoption law that is similar to modern laws was passed in 1851 in Massachusetts. This law recognized adoption as a legal and social operation that is based upon a child’s welfare as opposed to adult interests. The adoption of this law was a key turning point as it caused judges to ensure that adoptions were considered fit and proper. In 1949, New York passed a law against adoptions on the black market – the first state to pass such a law. The Child Citizenship Act of 2000 advanced adoption proceedings by allowing foreign-born children adopted by American citizens to become citizens themselves the moment they entered the US. All of these changes plus many more that have been instituted the modern laws of adoption. These laws are governed through comprehensive regulations and statutes.

While the concept of surrogacy can be traced back hundreds or even thousands of years, surrogacy agreements are relatively new concepts to modern society. The first official and legal surrogacy agreement was implemented in the middle of the 1970’s surrounding the case of Baby M. The first traditional surrogacy arrangement that included payment only occurred in 1980.

Precedent Setting Cases

There are various precedent setting cases involving adoption and surrogacy. One such case is Armstrong versus Manzo from 1965.

In this case, an ex-wife had custody of her child and the father had to pay child support. When the child’s mother  remarried, her new u=husband wanted to adopt the child. Two years later they started the procedure to adopt the child. While going through the process of legal adoption, the child’s mother claimed the father did not pay the child support but knew where he resided. The judge ruled that the adoption could take place without the father’s consent. When the father learned about the adoption, he took steps to have it annulled. This case went as far as the US Supreme Court who ruled that the father’s due process right had been violated.

The largest landmark surrogacy case is Baby M which transpired in 1988. This case was a child custody case that ended up being the first court ruling in the US on surrogacy validity. In this case, the Sterns entered into a surrogacy arrangement with Whitehead, who was inseminated with Stern’s sperm. She then brought the pregnancy to term and was to give up her parental rights to the Sterns. Unfortunately for the Sterns, Whitehead chose to keep the baby and the Sterns sued. A court in New Jersey ruled that the baby’s legal mother was Whitehead and deemed the surrogacy contract invalid. The father was actually awarded custody with Whitehead having visitation rights. This case raised new social and legal questions concerning parenthood, childbirth and pregnancy.

Defenses

As there are no defenses pertaining to adoption, it is more valuable to instead discuss regulation. It is federal legislation that sets the framework surrounding adoption in the US and each state passes laws in order to comply with the federal requirements, as well as to be eligible for funding from the federal government. Therefore, state law primarily regulates adoption and consequently the laws do vary between the states. State law is divided into different areas: domestic adoption, inter-country adoption and post-adoption. Federal law regarding adoption is separated into domestic adoption laws and inter-country adoption laws. Both federal and state adoption laws deal with the rules of adoption, child protection and child welfare.