Ethical Musings

Despite the general public perception, attorneys do worry about making the best possible decisions within the most appropriate ethical guidelines. There are rules, laws, consequences – but rarely are there clear-cut answers. In this section issues will be raised, but not answered. As you will see there may be many goals but few solutions. If you have thoughts, suggestions or opinions, please email them back and they may be added by later update.

Laws in the United States give strong protection to the birth parents of a child. Their right to parent, if they so choose and are not unfit, is enforced by law -- even if these biological parents are minors themselves. So, if an adoption plan is made, the birth parents must be identified and consent to the relinquishment of their parental rights, or those rights must be waived or forfeited in some ‘legal’ manner. Further, the child deserves genetic, medical and genealogical data about his or her ancestry which can only come from truthful disclosure by the true parents. Now comes the problem – best illustrated by example:

Birth Mother is 15 years old at the time she gives birth to the child. She wishes to release the child for adoption and understands that the adoptive parents are nervous about the rights of any male who might claim to be the biological father. She is told that she has the right not to disclose the name of the father but that many judges in Georgia will require her to do so. Forms she is presented which are contained in the Georgia Code state that a man can sign as the ‘alleged’ father which does not lock him into parental responsibility should she choose to parent but does give consent for adoptive purposes.

Georgia has a Putative Father Registry on which the biological father can list his name if he wishes to parent or to be involved in the adoptive placement decision.

Snag: If a birth mother is age sixteen or less at the time that she gives birth, then the conception may have occurred (as a matter of provable scientific fact) prior to her attaining her sixteenth birthday. In Georgia sex by a man or a woman with a partner less than sixteen years old is statutory rape, even if the ‘child’ is consenting and enticing. The penalty for statutory rape is 1 to 20 years imprisonment, but if the older partner is over the age of 21 then the penalty range is 10 to 20 years. However, to protect teens with racing hormones, if the victim is 14 or 15 years of age and the person charged is less than three years older, then it is a misdemeanor. It is a crime in any event.

So, the legal process in adoption requires that a birth mother identify the father of the child. If she is under age sixteen then she is providing evidence which can be used for many purposes that a man has committed statutory rape. If she is over age 16 but names a birth father who is younger, then she will be confessing her participation in a crime. The child’s existence, through DNA sampling, is tangible proof of the offense.

The father must be named, and his rights or potential claims properly terminated, or he will be a risk to the adoption – even though we now use Putative Father Registries and other mechanisms to attempt to close out his claims. If named, then the issue of potential criminal prosecution (with a very long statute of limitations) is present. If the biological father lists himself on the Registry, then he, himself is providing very public confession of his criminal participation.

So, the issue to an attorney involved in the adoption process, relates to the obligation to disclose to these young people the risk in which they might be placing themselves or their former partners. Typically the attorney is representing the adoptive parents and is charged with accomplishing all aspects of the adoption in the most complete legal manner possible. To tell a birth mother that she is exposing her former partner to criminal prosecution if she names him makes it highly unlikely that she will wish to do so. If she does not properly name the male, then the termination of his claims may be incomplete and give her AND him a later loophole for challenging the finality of the adoption.

Disclosure of the problem, omission of the details, telling the birth mother that she should have her own legal counsel on this issue. . . . each may be a partial solution. None seems to be without its disadvantages. Many are not ethically appropriate.

Since posting this example, there have been two responses emailed giving their reactions. They will be followed by Lynn Swank's comment.

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