From Contract Rights to Contact Rights: Rethinking the Paradigm for Post-Adoption Contact Agreements

Abstract

This Article considers the issue of post-adoption contact agreements (PACAs). PACAs are agreements between birth parents and adoptive parents, negotiated pre-adoption, that define the types and frequency of contacts that the birth parents will have with a child after the adoption is final. Most private adoptions of infants in the United States are now open, and birth parents choose the adoptive parents in most of these open adoptions. About two-thirds of these adoptions include the negotiation and execution of a PACA. PACAs are generally treated by the courts as simple contracts. But treating a PACA as a straightforward contract ignores the fact that about half of the states hold PACAs to be unenforceable if the adoptive parents refuse to perform, negating the rights that should be enforced to promote the well-being of birth parents and adopted children. Indeed, studies of the adoption triad (birth parents, adoptive parents, and adoptee) show that open adoption with ongoing contact benefits all three parties emotionally and psychologically. However, because many courts and legislatures view public policy in favor of the adoptive parents, who acquire all parental rights when an adoption is complete, the interests of the birth parents – who almost always hold a lower socioeconomic status than the adoptive parents – are not given equal weight. The best interests of the child are similarly ignored. This Article argues that viewing PACAs through a contractual lens fails to take into account the market conditions that govern adoption and the power differential separating birth parents and adoptive parents. Drawing on feminist theory and applying principles of legal realism, it further argues that, when a PACA is viewed as a contract, breach becomes an available and even tempting choice for adoptive parents, especially because there is no easy remedy for promise breach even in states that purport to honor PACAs. When adoptive parents fail to honor the PACA, birth parents and children suffer. Therefore, this Article argues for a shift in the PACA paradigm by looking to the law of child custody and visitation for a model of enforcement. The Article does not argue for a reinterpretation of the constitutional liberty interests of parents to raise and make decisions regarding their children; under the proposed scheme, all parental rights remain vested in the adoptive parents. But this Article suggests the creation of a new kind of right for birth parents: contact rights. Because contact and communication with adoptees would become rights for birth parents, courts would have to treat adoptive parents’ withholding of communication and contact as violative of the birth parents’ rights, much as they do in the custody and visitation context. In the best interests of the child and in furtherance of the birth parents’ contact rights, therefore, the court would start from a presumption of enforcing the contact agreement and would work to maintain relationships between birth parents and adoptees. In turn, this presumption would allow birth parents to make educated decisions when choosing adoptive parents, and adoptive parents would give serious consideration to just how much contact they are willing to provide. Adopted children would benefit from contact with both sets of parents. This article is timely and important because it recognizes and addresses a real inequity in a highly prevalent form of family formation: open adoption. Today’s national conversation includes a sense of urgency about the role of courts and private actors in protecting children and their best interests, and today’s intersectional feminism requires us to consider how poor women and women of color may be disadvantaged – even exploited – by wealthier white women who can use legal loopholes to become parents without honoring commitments to those who bear their children. Finally, courts and legislatures are in the process of developing legal strategies to deal with new types of family formation; as they do so, this article offers original ideas and important guidance on how to honor the rights and needs of birth parents, adoptive parents, and adoptees.