The laws governing birthparents' rights and responsibilities differ widely from state to state. Birthfather rights, in particular, are all over the map, although a few highly public court battles in the late twentieth century caused states to recognize the rights of birthfathers.
Here is a small sampling of birthparent issues that different states handle differently:
- Whether a birthmother or birthfather might revoke consent (change their minds)
- Whether the state has a birthfather registry for alleged unmarried fathers to assert paternity
- Whether a state allows prebirth consent by the birthfather
- Procedures if the birthmother doesn't know (or refuses to name) the biological father
We'll look at each of these issues in turn.
In this section, I discuss how long birthmothers have to change their minds. A few hours, a day, a week, months? Or no time at all?
Consent to an adoption means the birthmother (and, hopefully, the birthfather) voluntarily agree that their child may be adopted. To revoke consent means that they take back consent. If consent is irrevocable, it may not be taken back.
Well, it depends. Most people assume that birthparents automatically have until the day the adoption is finalized to take back (revoke) their consent to the adoption. But in most cases, this is not true. Unless a fraud has been committed, many states allow no time after signing adoption consent papers to change one's mind. Other states give birthparents a brief window of time—say, 72 hours—after the consent documents are signed to revoke it, although a few allow for much longer revocation periods. It's also true that some states impose a waiting period after the child is born before birthparents may consent to the adoption. See the adoption law chart for specific time frame information in each state.
So, you might say, how come we had that 1993 Baby Richard case in Illinois, in which the three-year-old boy, placed with his adoptive parents as an infant, was given to his birthparents? That was a highly unusual case. It occurred because the birthfather claimed his rights had been violated, and the court agreed, because the birthmother had lied to the birthfather about what happened to the child. The ruling caused a furor, however, and because of it, Illinois adoption laws were changed.
Even in states where consent is irrevocable, there is usually some provision for cases of fraud or duress (if the birthparents were deceived by the adoptive parents or the adoption arranger, for example).
In some states, consent can be revoked for any reason. In others, a birthparent who wants to revoke consent must request a hearing so a judge can decide whether consent may be revoked. Usually if any significant amount of time has passed, the court will be asked to consider the best interests of the child.
Many states have birthfather registries (also known as putative father registries) where unmarried men who believe they have fathered a child can register their paternity. (Check the adoption law chart to see which states have such registries.)
In some states, if the birthfather fails to register, then the birthmother may place the child for adoption without taking any further action with regard to the birthfather. In other states, additional efforts must be made to serve notice about the child's birth to the birthfather. If he has registered, a birthfather usually can block (or at least delay) an attempt by the birthmother to place the child for adoption.
Whether it's fair or unfair to require an unmarried father to register his paternity can be debated endlessly. Supporters of registries say that it is a man's responsibility to find out whether or not a woman he has had sex with has become pregnant and whether or not he wants to assert paternal rights. The registry protects the birthfather by notifying the court of his paternity in cases where the birthmother chooses to withhold the information.
Opponents say that fathers should not have to guess whether a pregnancy has occurred and that a man should not be separated from his genetic child without his knowledge or permission. Some say the birthfather's right to his child should be equal to the birthmother's right. It's likely this debate will continue.
A relatively new “animal” for many states, prebirth consent, means that a birthfather who is not married to the birthmother can agree to an adoption while a woman is pregnant. In other words, he doesn't have to wait until the child is born to sign his consent to the adoption.
Alabama, Arkansas, Delaware, Florida, Hawaii, Illinois, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, North Carolina, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Tennessee, Utah, Vermont, and Washington all have prebirth consent laws. Usually the consent is irrevocable after the birth, although sometimes it may be revoked for a brief period, depending on the state.
Birthmothers, however, almost always sign consent after the child is born, usually within a specified time frame of hours or days.
Prebirth consent is a hotly contested issue. Is it fair? Some people wonder why the birthfather can sign before the child is born when the birthmother can't sign until the child is born. One response is that the birthmother who is considering adoption must take action soon after the child is born. Most birthmothers don't want the child placed in foster care while a birthfather is sought or while he makes up his mind. Remember that prebirth consents are allowed in some states, and they are not required. They are generally used for birthfathers who want to end their involvement prior to the child's birth.
State laws vary in cases where the birthmother doesn't know—or refuses to disclose—the name of the biological father. In some states, she must swear before a judge that she doesn't know who the birthfather is, or she must provide a reason why she can't (or won't) name him. In other states, the responsibility lies with the birthfather—he's expected to come forward if he wants to assert his paternal rights.
It's a good idea, however, for the adoption arranger to try to determine who the biological father is before birth whenever possible. The arranger then can try to legally terminate his paternal rights and also obtain genetic and medical background information from him to provide to the adoptive parents.