By Malinda L. Seymore
Adoption and abortion both rely on concepts of consent, each an exercise in autonomy. Yet in adoption, we rarely consider the constraints on autonomy that often preclude meaningful choice.
When I think of adoption consent, I think of Dawn’s case. She was 18 years old, working part-time as a cashier and living at home with her mother and stepfather when she became pregnant. She concealed her pregnancy at first, and it was soon too late to get the abortion she wanted. The clinic recommended an anti-abortion attorney to her (telling her he wouldn’t charge for his services), who would help with an adoption placement. Her parents said if she kept the baby, she was not welcome to come home. She had no money, no ability to support herself and a baby, no parental support to help her raise a child, and any mention of the baby’s father is conspicuously absent in the case. Dawn relinquished her child for adoption, signing paperwork terminating her parenting rights before even leaving the hospital. Seeing how much Dawn was suffering without her baby, Dawn’s parents agreed to help her raise the child, but when she sought the child’s return, the courts found no coercion or duress. Dawn was merely coerced by the circumstances of her life. No one was responsible for coercing Dawn, though the lawyer and prospective adoptive parents took advantage of her poverty and lack of support. Because the courts concluded that Dawn voluntarily consented, the adoption would stand. Dawn’s case is the story of many women who “consent” to adoption.
To the extent that adoption is seen as the morally-superior alternative to abortion — as when Justice Amy Coney Barrett suggested it was, during the recent Dobbs v. Jackson Women’s Health Organization oral arguments on Mississippi’s 15-week abortion ban, positing that a woman would not be burdened by lack of access to abortion if she could simply relinquish the child for adoption after birth — many view consent to adoption as the obviously correct choice. That normative assumption that adoption is the “right” thing to do means we don’t worry overmuch about whether consent is truly voluntary. In this way, adoption becomes a tool for those opposed to abortion to convince or coerce women to give birth instead, with the promise that adoption is always best — best for the mother, best for the adoptive parents, best for the future child.
The normative assumption that adoption is good is revealed in counseling requirements before an abortion or an adoption can occur. Thirty-three states require counseling prior to an abortion, with twenty-three of those states going beyond mere medical counseling (with some including false or unproven information), but only six states mandate counseling before an adoption relinquishment. Much of the abortion counseling concerns preventing coercion; one anti-choice organization alleges that “most abortions are unwanted, are coerced and many are forced, sometimes violently.” In the few states mandating pre-adoption counseling, there is no similar focus on preventing coercion. Nor do statutes require what abortion counseling statutes require — including information about alternatives, support for parenting, the medical risks of the procedure (giving birth is far more dangerous than abortion), the obligation of the father to pay child support — nor do they mandate a waiting period.
Discussions of consent in adoption take as a presumptive starting point that adoption is always a win-win-win decision, benefiting the too-young mother of an unwanted child, saved from abortion, whose child will find a better family in capable, loving adoptive parents yearning for a child. Unpacking these assumptions, however, reveals a view of adoption that counters this happy narrative. Some adopted persons experience adoption as a profound loss, experiencing fear of abandonment and rejection, and struggling with trust and attachment issues. Many adoptees struggle with identity, which may explain high levels of behavior problems observed in adopted children and adolescents. While adoptees represent less than two percent of children in the United States, they represent 10-15 percent of those in mental health care facilities. A significant portion of birth parents also experience negative psychological symptoms, sometimes long-term. In one study comparing adolescents who parented and those who relinquished for adoption, those who relinquished were less comfortable with their decision. In the first two years birth mothers experienced “a powerful sense of loss and isolation,” and even two years after relinquishment some continued to experience effects on their emotional well-being. According to other research, while some birth mothers expressed feelings of satisfaction four years after birth, most also experienced continuing grief and loss, ongoing depression, shame, and negative self-image.
Ignoring the psychosocial evidence that adoption as currently practiced is not necessarily an unqualified good allows us to view consent through rose-tinted lenses, seeing it as a happy choice, the best choice, the only choice. But the concept of consent in adoption does not account for circumstances in which women relinquish a child when it ignores the role of poverty, the lack of support for parenting, and the continuing stigma of single parenting. Taking adoption consent seriously requires considering the lived experiences of women that lead them to consider relinquishment in the first place, and the often-overlooked realities of adoption that must be acknowledged for informed consent to be possible.
Malinda L. Seymore is Professor of Law at Texas A&M University School of Law. She teaches Adoption Law and Women & the Law, as well as criminal and litigation courses. She writes about adoption, both domestic and international, and most recently about the problems of using adoption as a form of rescue in Afghanistan and Ukraine.