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  • CA and KS "expressly permit" dual rep. it is prohibited in: KY, ME, MD, MI, MN, NY, and WI. Fl allows attys to act as intermediaries then prohibits intermediaries from providing legal representation. some states only require sep legal counsel for minor mothers.
  • This is why attorneys need to “police” themselves
  • These are serious ethical questions for adoption practitioners
  • Ethics

    1. 1. Defining Ethics in Domestic and Global Adoption Practice Presented © by Mirah Riben OPEN ARMS, OPEN MINDS: THE ETHICS OF ADOPTION IN THE 21ST CENTURY October 14-16, 2010 St Johns University
    2. 2. <ul><li>Ethical Adoption </li></ul><ul><li>Ethical Adoption Practices </li></ul><ul><li>Ethical Adoption Agencies </li></ul><ul><li>Ethical Adoption Practitioners </li></ul><ul><li>What does it all mean? </li></ul>
    3. 3. <ul><li>eth·i·cal </li></ul><ul><li>1. pertaining to or dealing with morals or the principles of morality; pertaining to right and wrong in conduct. </li></ul><ul><li>2. being in accordance with the rules or standards for right conduct or practice, esp. the standards of a profession: such as the ethics of physicians advertising </li></ul>
    4. 4. By what criteria do clients rate an agency or practitioner as ethical? <ul><li>Operating within the law? </li></ul><ul><li>Following standard/acceptable practice? </li></ul><ul><li>Charging reasonable rates and providing accountability and transparency? </li></ul><ul><li>Delivering on promises in a timely manner? </li></ul>
    5. 5. <ul><li>Who are the clients in adoption? </li></ul><ul><li>Who pays the agency or facilitator, as well as for the home study and legal counsel? </li></ul><ul><li>To whom are agencies and attorneys obligated? </li></ul><ul><li>Whose rights are protected? </li></ul>
    6. 6. <ul><li>The prospective adopter “is likely to be the primary, if not exclusive ‘client’ because he or she is paying the fee for the services.” </li></ul><ul><li>Madelyn Freundlich , director of the Policy Dept. of Children’s Rights , a national advocacy organization for children in government custody, quoted in “Time to Decide” by Elizabeth Samuels </li></ul>
    7. 7. Ehica Survey <ul><li>In February 2010, Ethica (an independent voice for ethical child adoption) invited 24 U.S. agencies licensed by Ethiopia to provide information about their adoption program by taking part in a survey. </li></ul>
    8. 8. Ethica asked: “ What efforts does your agency employ to ensure ethical adoptions (in Ethiopia?)”
    9. 9. <ul><li>Replies included: </li></ul><ul><li>abiding by the laws of the Ethiopian government as well as the US government </li></ul><ul><li>producing annual budget reviews </li></ul><ul><li>training employees </li></ul><ul><li>lifebooks – scrapbook/diaries in which adoptive parents record memories for their children </li></ul><ul><li>reviewing paperwork </li></ul>
    10. 10. <ul><li>The variety of responses as to how these agencies ensure ethical practices, speaks volumes of the lack of any cohesive understanding of what ethical adoption practice entails, and an absence of a unified professional code of ethical standards. </li></ul>
    11. 11. <ul><li>“ The research on ethics in adoption shows that adoption, more than any other human service, is rife with conflict of interest…” </li></ul><ul><li>L. Anne Babb , (1999) Ethics in American Adoption </li></ul>
    12. 12. <ul><li>Some ethical guidelines for adoption have been set by the American Bar Association (ABA), Child Welfare League of America (CWLA), and organizations such as the Evan B. Donaldson Adoption Institute (EBDAI) </li></ul><ul><li>But they are not enforced and are often ignored, for instance… </li></ul>
    13. 13. <ul><li>The ABA Standing Committee on Ethics and Professional Responsibility concluded in 1987 that lawyers might not ethically represent both adopting and relinquishing parties. Dual representation violates the ABA Model Rules of Professional Conduct [Rule 1.7(a)]. </li></ul><ul><li>Most states, however, allow such dual representation, as long as the client is given written knowing and informed consent of dual representation </li></ul><ul><li>No state offers legal aid for relinquishing parents, as is required for indigent criminals. The only exceptions being for mothers who are minors and in some state-initiated termination of parental rights cases. </li></ul>
    14. 14. Fees For Legal Representation <ul><li>Fees for legal representation of both relinquishing and adopting parties are routinely paid by those planning to adopt , despite the fact that they have separate, and potentially conflicting, interests. </li></ul><ul><li>This constitutes dual representation and creates the potential for conflict of interest </li></ul>
    15. 15. <ul><li>“ This practice of dual representation raises acute ethical and practical concerns.” </li></ul><ul><li>Susan S mith , “Safeguarding The Rights and Well Being of Birthparents In The Adoption Process,” The Evan B. Donaldson Adoption Institute report 2006. </li></ul>
    16. 16. <ul><li>Suggested Basic Standards of Ethics for All Adoptions </li></ul>
    17. 17. <ul><li>Ensure the best interests of child are primary by appointing a guardian ad litem. </li></ul><ul><li>Ensure claims of orphan status are confirmed via the death of both parents. </li></ul><ul><li>Verify claims of abandonment. </li></ul><ul><li>Ensure all efforts are made to locate extended family members and they are provided resources needed to care for their kin.  </li></ul>
    18. 18. <ul><li>5. Allow no coercion, pressure or exploitation of poverty, age, illiteracy, language, or misunderstanding of the permanency of adoption. </li></ul><ul><li>6. No falsification of original birth information, maintaining the integrity and availability of the adoptees’ full and complete legacy and heritage. </li></ul><ul><li>7. Legal enforcement of ongoing contact agreements. </li></ul>
    19. 19. <ul><li>Additional Suggestions for Ethical Domestic Adoptions </li></ul>
    20. 20. <ul><li>In order to eliminate feelings of indebtedness, obligation, or pressure which can be interpreted as coercion, and . . . </li></ul><ul><li>To eliminate false hope and unmet expectations for prospective adopters, and . . . </li></ul><ul><li>to conform to the intent of laws prohibiting pre-birth contracts and baby buying and selling… </li></ul><ul><li>No contact allowed between an expectant mother and prospective adopters until after the birth, relinquishment, and revocation period, at which time the original and still legal mother may invoke a right to select from pool of available prospective adopters. </li></ul>
    21. 21. <ul><li>All pre and post placement services for all adults paid for by from a common state pool funded by placement fees. </li></ul><ul><li>Such services to be provided by social workers on state salary – not by those paid a fee for the completion of the adoption. </li></ul><ul><li>Expectant mother’s housing and medical expenses to be paid by state welfare and Medicaid. </li></ul><ul><li>Legal counsel for natural mother and father provided and paid for from a common state pool funded by placement fees. </li></ul>
    22. 22. <ul><li>No expectant mother encouraged to conceal the father’s identity; efforts made to locate father for consent. </li></ul><ul><li>No expectant mother moved out of state for the purpose of adoption. </li></ul><ul><li>All costs and fees are transparent and accountable to all parties </li></ul><ul><li>Mothers and fathers considering placing their child for adoption provided impartial counseling of all options, including being informed of the lifelong grief of relinquishment and increased risk of secondary infertility. </li></ul>
    23. 23. <ul><li>Extended family members provided resources needed to care for their kin, including support and medical subsidies as needed. </li></ul><ul><li>No relinquishment signed until a minimum of 6 weeks post-birth with encouragement to see, hold and breastfeed. </li></ul><ul><li>30-day revocation period of such a decision with liberal and unrestricted visitation. </li></ul>
    24. 24. <ul><li>“ Adoption experts concur that we need to transform... adoption... into a social service in which payments by adoptive parents play no part.” </li></ul><ul><li>Elizabeth Samuels , Time To Decide? The Laws Governing Mothers’ Consents To The Adoption of Their Newborn Infants. 2005, Tenn. L. Rev. 509 </li></ul>
    25. 25. <ul><li>&quot;It amazes me how many adoptions are done by attorneys, where the birth mothers have zero counseling. </li></ul><ul><li>“ There are a lot of sharks out there, manipulating them in every way they know how, and the laws don't prevent that in most states.” </li></ul><ul><li>Susan Smith , author of The Evan B. Donaldson Adoption Institute report “Safeguarding The Rights and Well-Being of Birthparents In The Adoption Process“ 2006 </li></ul>
    26. 26. <ul><li>“ To what extent do prospective adoptive parents’ expenditures to cover a birth mother’s medical … or other living expenses create a sense of indebtedness that may affect her decision-making? </li></ul><ul><li>“ Does a birth mother ultimately ‘owe’ it to the prospective adoptive parents to follow through on an adoption because a good deal of money has been expended …?” </li></ul><ul><li>Madelyn Freundlich </li></ul>
    27. 27. <ul><li>“ The adoption field itself remains such a legal gray area that it tests the ethical limits of the attorneys who specialize in it.” </li></ul><ul><li>New York Law Journal 11/11/09 </li></ul>
    28. 28. <ul><li>Ethical rules dictate that “a lawyer shall not permit a person who recommends , employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services” (ABA Model Rules, 5.4 which have been adopted by most states) </li></ul><ul><li>Attorneys are put in a bind when prospective adopters or adoption agencies, who have a stake in the completion of the adoption, recommend or suggest them as legal counsel for the relinquishing parents </li></ul>
    29. 29. <ul><li>“ Professionals have yet to develop uniform ethical standards in adoption or to make meaningful attempts to monitor their own profession.” </li></ul><ul><li>L. Anne Babb , (1999) Ethics in American Adoption </li></ul>