By Gregory Luce
Annulling or legally ending an adoption is not a new concept, but it has rarely applied to the benefit of adopted people. Instead, informal practices, as well as specific legal frameworks dating back more than 100 years, have long-supported a “right of return” policy for adoptive parents who no longer feel an adoption is beneficial or even desired.
Activists within today’s adoptee rights movement, however, are working to establish a right to end a person’s own adoption by building on what has long existed in the law for adoptive parents, but refocusing it on the specific demands for autonomy of adopted people, particularly those who do not view adoption to be in their best interests.
Since at least 1917, adoptive parents in the United States have possessed either a formal or informal right of return policy covering their adoptive children, with remedies to fix what those parents ultimately believed was a “bad deal” in the transaction. Those bad deals have typically been related to an adoptive child’s race or disability — though broadly defined physical or mental “defects” were also included in adoption laws as justification to return a child.
While initially embedded into law and now largely (but not entirely) outdated, the practice of returning an adoptive child has nevertheless been preserved today through unregulated custody transfers, or what is known colloquially as “rehoming,” a practice that Congress is currently attempting to ban as child abuse.
Whatever the source, adoptive parents have long had a largely unchallenged ability to disrupt or dissolve an adoption and return a child to the state — or give that child to a friend, agency, or even a stranger. Adopted people as adults, however, generally do not have such a choice — let alone a right — though they are now looking at the past and current “right of return” practices of adoptive parents and ultimately asking “what about us?” That is, what about an adult adopted person who got a bad deal in their own adoption, whether that adoption was abusive, illegal, or essentially non-existent? Should there be a right to annul your own adoption as an adult and thus reclaim your autonomy and identity?
Yes. And it turns out that annulling your own adoption as an adult is not without precedent.
For decades, at least two states recognized a right for adult adopted people to void their own adoptions, and a number of other states had provisions that would allow vacating or annulling an adoption under certain circumstances.
Maine, for instance, had for many years a provision that allowed two or more petitioners, so long as they had “good cause,” to seek and obtain the annulment of an adoption. Other states had general provisions that allowed vacation or annulment by anyone, though the law usually mandated strict time periods and was typically only available while the adoptee was a child.
West Virginia and Vermont had much broader and nearly identical provisions for decades. West Virginia, which for nearly one hundred years recognized the right to void your own adoption, had a law that was simple, though it required the adopted person to act soon after they became an adult. The law in West Virginia for years stated that:
If the person thus adopted, is adopted while a minor, he may within one year after becoming of age, sign, seal, and acknowledge before proper authority, in the county in which the instrument of adoption was filed, a dissent from such adoption. Such instrument of dissent shall be recorded in such county court clerk’s office, and upon the filing of the same the adoption shall be void.
More recently, West Virginia legislators have introduced bills that would reinstate the right to annul your own adoption.
One bill, first introduced in 2019, provided that “Any adult resident who has been previously adopted by order of a West Virginia court may petition a circuit court for a court order annulling the adoption. Upon granting the petition by the court, all legal rights and privileges granted pursuant to state law by the adoption are null and void.”
A right to end your own adoption is about providing genuine autonomy to adopted people, an autonomy that was missing during childhood when adoption professionals and others facilitated the adoption and deemed it to be in the adopted person’s best interest. Today, an individual right to annul an adoption would restore autonomy to people whose adult interests justify terminating an adoption that either never worked for them or that they no longer desire.
While a sort of limited autonomy exists today for adopted people, we call it something else: adult adoption.
Though not equivalent to annulment, adult adoption nevertheless demonstrates that adoptees are trusted as adults with their own decisions over who may be their parents. That is, an adult adopted person — or any adult — can be adopted by another adult, and it only requires the consent of both people. This has been done for millennia, going back to ancient Rome, largely for purposes of inheritance, but in more modern times for purposes of arranging a family that fits who you are and how you identify.
Annulling your own adoption is not without its issues, which we can resolve — and if we are serious about reinstating or securing a right that we should have as adults, we need to answer a few questions to get there.
These include restoration rights, which basically involve two issues: One, does annulment restore an adoptee’s own original birth record? Yes, this is current law in most states. That is, an annulment restores the adoptee’s prior original birth record, which had been sealed after the adoption and replaced by an amended record that falsely listed the adoptive parents as biological parents. Annulment legally allows the adoptee to restore truth and to reclaim an identity long lost to them.
The second restoration right is more complicated and involves the complexity of human relationships. That is, what prior parental rights, if any, are restored through the annulment or vacation of an adoption. That is not easy to answer and it will need to be sussed out, though generally restoration of parental rights would not be automatic. Same goes for intercountry adoptees whose adoptions were critical to make them U.S. citizens. How would annulment affect that citizenship, and what do we need to watch out for?
These and other questions, however, are issues, not barriers. In other words, provided we can establish a right to annul your own adoption, as a simple procedure, then we should certainly be able as adults to work out the more complex cases that arise in more specialized or complicated situations.
Gregory D. Luce is a Minnesota-based attorney and a District of Columbia-born adoptee. He is the founder of Adoptee Rights Law Center and the executive director of Adoptees United Inc. As a lawyer he represents adult adopted people exclusively on issues related to birth records, identity documents, and U.S. citizenship, typically on a pro bono or low bono basis. He is a graduate of Boston University and the University of Minnesota Law School.