More On Utah Adoption Story

I wrote about a recent Utah case yesterday and that post has attracted a lot of comments.   I haven’t had the chance to read them all (and I’m a bit worried about the tone of some) but the ones I have read have gotten me thinking more about the case.  I thought I’d do a second post on it partly because reading through too many comments becomes unwieldy.  This way people can spread them out.   But I will write here assuming you have already read yesterday’s post, so if you have not you should go do so.

I’m sure it is the contrarian in me, but first I want to think about this from the Frei’s point of view.   These are the adoptive parents who are seeking to keep the child and everyone has jumped all over them in the existing comments.

I actually can imagine why their side of the story appeals to some people, and if you all can’t I think you should try harder.  It’s important to try and take other people’s points of view even when you don’t like them.    I don’t think it’s fair to conclude that the Frei’s are malicious or evil without trying very hard to construct what their arguments might be.

I see at least two fair points that they might raise.   First, the Freis are a stable and intact married family.  For some people–many people–this is seen as by far the best setting in which to raise a child.

By contrast Achane will raise the child either as a single parent or with a stepparent.   Both of these alternatives can be criticized.   Indeed, a number of people here have made fairly negative comments about step-parents.   (I recall something about the Cinderella syndrome?)   And I don’t have to strain to recall arguments against single parents, either.   Lots of people think that both of these circumstances are compromised or fraught with peril.   (I should be clear that I do not think this, nor do I mean to advocate it.  I just recognize that a lot of people do think either or both of these things.)   If you take this perspective than the Freis are a better home for the child than is Achane and their efforts to keep the child are defensible on that ground.

Second, the child here is now nearly two.  She has known only one set of social/psychological parents–the Freis.  She does not know Achane.    He has not been allowed to establish a meaningful relationship with her which means he has no meaningful psychological bond with her.   Under these circumstances, there is no doubt in my mind that she will experience real loss in moving from one family to another.

Now we can all vary in how we weigh that loss vs. whatever gain there is, but some people surely see the loss as more important.   Indeed, if you did this weighing purely thinking of the best interest of the child it might be close.  As it happens I think there are other things to be weighed in the balance–like the apparent bad conduct of the adoptive parents and/or adoption agency.   But for some people the desire to punish or deter bad conduct might take a backseat to thinking only about the well-being of the child.

Similarly, I think about the wrong done here to Achane and to the whole structure of parental rights.    I’m probably biased in favor of law generally and so it isn’t surprising that I want to vindicate rights both for the individual and for systemic reasons.    But I know that some people think it is  wrong to place the rights of adults ahead of the rights of the children involved in cases like this.   If you took that view, than the injury to Achane, while regrettable, doesn’t belong in the analysis where you consider what is best for the child.   Again–I want to stress that this is not my view, but I can see that it is a not uncommon view out there in the world.

Finally, there’s something I’ve been wondering about.   Imagine if you had exactly this case but if Achane and Bland had been unable to conceive on their own.  Suppose they had turned to ART and had ended up using sperm from a third-party.   The law here would be the same–Achane would be a legal father.  But the genetics would be different–he’d have no genetic tie to the child.    This would not change my thinking about the case, but I wonder if it might change the view of some of my readers?   Just asking.

 

About these ads

35 responses to “More On Utah Adoption Story

  1. I would be less sympathetic if he was not the genetic father and had never seen the child. but in the case of sperm donors, i think there should be a legal channel for each party to de-establish paternity if is before the period where a relationship has been established. so in my world, there would have been proper channels for the mother of the imaginary donor conceived child to go through.
    if she did go through the channels, I’d be ok with the situation. if she did not, she would still be in the wrong. so would the adoptive parents- as long as there is a legal parent, a kid is not a free for all. he may not be the genetic father, but neither are they and he was there first.
    but since the world doesn’t run the way I planned it, well i don’t know how to classify it.
    Still within our sperm donor example, I’d also look at it differently if the mother wanted to raise her child herself, or give it to someone else to raise. If she wanted to raise it herself, I’d be far more sympathetic than for her giving it away to other strangers.

    I would be just as sympathetic to Achanes’ case if he had never legally married the mother and I’m sure I’ve commented to that effet on other UTAH posts.

    • As your comments make clear, there are lots of possiblities to spin out here. Some you raise but some I’ve added.

      What if he wasn’t married to the mother? (Law says this is important, and you have been clear that it is not important to you.)

      What if he wasn’t genetically related to the child? (Law says not important as long as married to the mother)

      What if he had never seen the child? (Does the minimal contact matter?)

      What if the adoptive parents were completely unwitting and innocent?

      Each of these focuses us on a different question, I think. I’m not sure I understand what you are saying about the donor conceived child above. I meant to imagine that Achane and Bland wanted to have a child together and used sperm from someone else, then split up as here and the rest follows as it did. I think you are saying he wins on a sort of first in theory?

      Much to consider, that’s for sure.

      • there’s an additional difference that i have not yet mentioned between your hypothetical case and say, the jenkins-miller case. as I recall, jenkins was never delared a legal parent until after the separation took place and she was no longer playing a parent role. there was no such law in place at the time that defined jenkins as a parent. she obtained a legal ruling afterwards, as i recall.

        • If I remember right the child in that case was born in Virginia and therefore only Miller’s name was on the birth certificate and they didn’t move to Vermont (which later recognized Jenkins as a parent) until a few months later? So she would not have had legal rights at birth based on where they lived anyway.

          • I don’t remember that part…. the point is, I agree with Julie that having a law in place does create a certain reality… that is the whole idea of adoption in fact; that the adoptive parent is 100% equal to any other parent.
            So there are times that I may not agree with the law, but I would admit that having it in place creates a certain reality. The sperm donor law is an example of that. The husband and wife complete a legal procedure so that he will be recognized as a parent, a procedure for which a clear law exists. My opinion is that is sorely inadequate, but once it exists it has value.
            the greater passage of time went by though, the less meaningful it would be. it’s hard to draw a line exactly what age but if the kid was say 7 I’d be thinking the ex husband was a bit off- or more than a bit vindictive- if he hadn’t gotten over it yet. this is why i think there should be a law that specifies a time frame in which either member of the sperm donor recipient couple can revoke paternity, in case of the dissolution of the relationship when the child is very small- a legal, official procedure.
            Same for the married man. I am against Utah treating unmarried fathers as unequal to married fathers, but I think this case is even worse than the ones involving the unmarried fathers because of its clear violation of the law.

            • Yep, I think all fathers should be treated the same, but this shows the agency will break the law anyway, so we still have an unethical agency who will happily ignore whatever the law is.

              • Would that be all legal father or all genetic fathers?

                It seems to me to the extent one has an unethical agency there are other ways yone might manage this problem. Agencies (and the people who run them) can be sanctioned. Unethical agencies can (and should) be barred from practice.

                • i’m sorry that all the judge could say about the matter was that “it is hoped the agency will change their practices” then again this is a custody case not a criminal or even civil case

  2. Julie,

    Your concern for the prospective adoptive parents is nice, except for the fact that they accepted a “legal risk placement” KNOWING the father had not surrendered his rights and agreed to the adoption. Going into something knowing that fact and willing to parent the child if the father does choose adoption is an entirely different aspect than what has occurred.

    A father who is in the army should be incredibly easy to find. The attorney at the adoption agency should be capable of figuring out how to contact the army. I’m sure “I” could figure it out, and I have no connections, friends in the legislature, court, etc. Worst case scenario they could have contacted the National Council for Adoption who works with the Congressional Coalition for International Adoption (think that’s the right name) which is members of congress…

    As soon as they knew for a fact that the father fully intended to parent his child the transfer should have occurred. There should never have been a fight.

    As to believing a child is better suited to live in a stable two parent home vs a single parent who is employed by the US Government in the Army. That’s going to be a really tough sell for anyone. What you haven’t included is that this family is a transracial family, and while I have no concerns in that respect alone – it must also include acting in the best interests of the child in regards to the child’s race. My bias here, but I doubt very much that Utah would be held up as the best state in the US in regards to diversity or racial tolerance. Practing color-blind parenting fails.

    The attitude conveyed by their own words on their website identifies they felt hard done by simply because they had to take him to court to terminate his rights to his own child because the child was conceived in wedlock. Sorry folks – you don’t get to say “I” deserve your child.

    As to the best interests of the child – yes the child will deal with trauma over any move at this stage. At the same time the child has the basic right to grow up with his parent(s) and not to be deprived of that unalienable right. The trauma felt by the child in the move can be attributed to everyone involved – except for the father.

    The solution is to REFORM the laws in Utah regarding adoption so that people are held accountable, agencies are held to the highest standard, and those who defy or disrespect the laws face jail.

    • It’s true that I ignored the facts you mention. But if you thought about the problem only from the pov of the best interest of the child, you might ignore it. These facts are important if you consider equity/fairness and things like that, of course. Same thing with the Achane being apparently blameless. I just wanted to point out that difference factors may be important for different reasons.

      That right to grow up with the parents (by which you mean genetic parents, I think)–is that because this is what is best for children generally? Do we know that? Or does that right rest on something else–some general principle of natural law? I don’t mean you need to answer this right now, but the invocation of a right does raise these questions.

      There are actually a number of people who do argue that children are better off in stable marital families than with single parents. And lot’s has been written about the asserted dangers of step-parents. (SOme of it was on this blog.) I’m not saying I buy it, but can we agree that it is out there?

      And no matter what else we say, the case can certainly be used to argue that Utah law should be changed.

      • Julie said: “That right to grow up with the parents (by which you mean genetic parents, I think)–is that because this is what is best for children generally? Do we know that? Or does that right rest on something else–some general principle of natural law? I don’t mean you need to answer this right now, but the invocation of a right does raise these questions.”

        I believe that it is best for the child, and is a general principle of natural law, and is also a constitutional right.

        Best for the child to grow up in their natural family (safely of course) has actually been proven through studies and antedotal (sp?) accounts – from the British Home Children, to Orphan Train Riders, to my era (BSE), to Intercountry adoptions, transracial adoptions, and intercountry transracial adoptions. Studies on adoptees have been ongoing for decades, the sheer volume is astonishing including studying twins separated at birth just to study. Each time the study shows there are additional factors that impact the adopted vs the non-adopted, and more mental health access is higher, and other concerns. No matter who did the study, or what bias the study was designed to show, the results repeatedly show the exact same factors showing up. Now I’m not saying they are the end of the world type issues for the majority, but there are the same issues across the board regardless that the adopted have to deal with in addition to what every other person deals with. You could choose to say it is because we as a society compare to the natural family and that creates the issues, and that might well be the case, but that is the society we live in. Children least of all, should not be the bridges that carry the burden of societal change.

        As to natural law – people want to procreate and raise mini-me’s regardless if they don’t need the genetic connection or need it. That is the natural order that keeps humans from going extinct. Call it our ego or selfishness but we want to see our line continue on, watching a line disappear is sad – the end of the line. The right to raise your children (all things being equal) is part of being human. The proof to sever the parental bond in cases of neglect or abuse – must be set high and not taken lightly.

        As far as constitutionally – you are the expert but it has been proven.

        Of course there will always be those who believe a certain group is less than another group and is willing to make judgement calls simply on XYZ and I can’t say there isn’t. But, I am not one who believes that and hope that is never how law is shaped. Single parent – remove the child be it a widow, widower, unwed mother or father, divorced, gay or lesbian, going down that road we would have millions of children in the US waiting for adoption, who don’t need to be adopted, and would be harmed by such measures.

      • Generally in custody cases, isn’t the attempt by one parent to withhold the child from the other parent considered an act of parental unfitness?
        If that is so shouldn’t the people in this case be held to a similar standard? The very fact that they are trying to withhold a child from a fit legal parent becomes a “best interest” issue.

        • Kisarita is right in her thinking that attempting to prevent a biological parent from taking care of their child is ten kinds of wrong.

    • I am so glad that a real life current example of my anecdotes about fathers absolutely destroyed by the adoption of their children while they were serving our country getting shot at and being made to do horrible things in the name of our freedom. I’ve reunited a few of these families and it is exactly these circumstances that make me believe that no adoption should ever go through if the full signed sworn consent is not available from both parents. Both genetic parents or both adoptive parents if they are relinquishing. If you cannot find a parent then too bad they cannot give up their parental obligations. There should be no such thing as “loosing their rights” Their obligation to their children should be as permanent and indelible as the blood in their bodies and the cells of their skin. Nobody else should be allowed to become legally obligated as an adoptive parent unless both parents give their consent to allow someone else to take care of their child for them. If an adoption is allowed to go through without the full consent of both parents then it should be as foster care.

  3. Regarding your comment on the transracial family, I disagree strongly. Law is color blind. It would be wrong for the judge to include color in any sort of decision regarding the family. That would be blatant discrimination.

    A person can state their individual preference with regard to race and ethnicity, but the law cant make that decision for them.

    I actually sympathize with there motives if there goal in adopting another black child so their first one wouldn’t feel too out of place- if it was a truly abandoned child, not a child with an available parent ready and waiting.

    • that’s assuming they are adopting a child because for the sake of having the child of course- then the fact that she is black might be viewed as an added benefit for their son.
      if she is viewed though only in terms of her color or for the benefit she might bring to their other child- and not in terms of herself- well than i take back my supportive statement.

    • Wasn’t talking about the law – just about the best interests of the child in my opinion, and that includes the fact that in one situation the child is in a transracial home that may not be ideally located to provide what the child needs in that regard.

  4. The adoption industry is out of control. This case is absolute kidnapping; unfortunately, even if the adoptive parents had decided not to fight the genetic dad in court in the first place, it is unlikely he would have the child anyhow. The adoption attorney/agency would likely have switched out the adoptive home–just bc a bio dad contests an adoption does not mean he just gets the baby back. I learned this through personal experience and blog about it.

    • I am unwilling to condemn the entire adoption industry based on one case or even the collection of cases that have been discussed here. Some agencies/practitioners work very hard to create and support relationships between birth parents and adoptive parents. I think it is a mistake to paint with such a broad brush.

  5. What nobody is taking into account is that at this point, traumatization to this little girl is going to occur no matter what. It’s just a matter of when that traumatization takes place, either now when she’s a toddler, or later when she’s a teenager or young adult and finds out the circumstances surrounding her adoption. I believe that the trauma she experiences can be lessened if her adoptive parents and her birth father work together, easing her transition into her new home. Also, it would matter not one iota if her birth father wasn’t genetically related to her. If a sperm donor had been used the father would still have had an active role in conception as well as an emotional investment and a legal right to his child.

    • a partner of a woman who uses a sperm donor actually has no role in conception whatsoever. If you view “role in conception” as critical, you must certainly favor the genetic father.
      Emotional investment is highly, highly variable among such men. we could also say that Adoptive parents also have emotional investment.
      Remember, we are talking about before the child is born. No relationship has yet been established.
      No, it’s the law that makes all the difference. Once the law has decided to treat a particular man like a father, allowing violations to the law disrespects the rights of all fathers. It also creates a known standard that the other people are bound to abide by. I may say that the law should not treat him like a father but we must deal with the law as it is.

      • julie asked about sympathy though, not just law…. law aside, i’d have to see I’d be a lot less supportive of a man with neither a genetic connection or a relationship with the child.

        • More on Julie’s hypothetical case? I view the non-genetically related husband as in the same position as as the adoptive parent. Both become legal parents by virtue of a legal statute although they follow different procedures. So I would say that yes, being first matters. In the same way that you couldn’t complete a legal adoption with one family first and then decide that the child should go to someone else.
          Now imagine an adoption was completed with one parent but then the child was placed with someone else against the first adoptive parent’s knowledge or wishes. The first adoptive parent never actually cared for the child. Should she or he be entitled to get the child back? Sticky, isn’t it?

          • It’s a lot easier if I fall back on the argument that the law (designating the one adoptive parent as a parent) must be respected. But if you go to that deeper level–what should the law be?–it is indeed stickier.

  6. His rights as a biological parent who was not notified of the birth of his child trumps the rights of the adoptive family. It also appears the adoption agency in question knew of the biological father and choose not to inform him – that is wrong. While I sympathize with the adoptive family (I’m one myself), it is clear this child should be returned to her father. Adoption by deceit is not adoption at all.

    • I’m not sure whether you are speaking in terms of your opinion or in terms of describing the law. This is an important distinction.

      It is clear that in law merely being a biological father does not give you any specific legal rights. If a man is married to a woman who gives birth then he probably has parental rights whether he is genetically related to the child or not. An unmarried man who is genetically related to a child has to jump through various hoops before he can claim parental rights. The other Utah cases discussed here concern instances where the assertion is that the unmarried man didn’t do that properly. This case is different because Achane was married to the mother. Hence, he had legal rights as a parent and it is these legal parental rights that he can assert.

  7. The problem is broad and relevant to the adoption industry. There are many wonderful people working toward adoption reform, yes, but legislation tends to favor adoptive families over both natural parents as well as adopted individuals.
    This is not even a sole case in the news right now. This case is highlighted greatly by the fact that the bio dad ia legally married to the bio mom. There are other active, pending cases where bio fathers were unmarried to the bio mom and lost a child to adoption.
    Moreover, there are cases of grown adoptees who cannot access their original birth certificate. There are cases of child trafficking around the world. There was an era in this country as well as in several others referred to as The Baby Scoop–and those unmarried birth mothers are only getting recognition for their plight quite recently. I believe the governments of Canada and Australia have even issued formal apologies. To state that “the adoption industry is out of control” is not mere hyperbole. It is a phenomenon supported by decades of unethical practices, unfortunate legislation, and a cultural bias toward adoption over support of first families.

  8. One: Am I now allowed to ask the married mothers here to let me adopt their children behind their husbands backs? Two, I can’t imagine any secenario much more unethical than to steal a United States Serviceman’s child while he is fighting a war overseas. Disqusting.

    • I’m not sure what you mean. You can ask, of course. Do you mean can the married mothers cut out their husbands (who we’ll assume are legal fathers) and allow you to adopt? In general the law is structured in various ways that make this difficult. But a truly determined person who is willing to lie under oath, etc. can usually pervert the law. It’s not foolproof. But I do think that deliberately evading legal obligations may leave you open to allegations of criminal conduct.

      I do not mean to suggest that what happened here is okay. It may be that this is an instance where someon really needs to answer for the conduct, too. In general, it’s hard to design law so that it is not subject to abuse by those willing to act unethically or illegally unless you are willing to have vigorous state oversight at every turn. Lot’s of people aren’t willing to let the state have that kind of overall supervisory authority over people’s lives.

  9. Julie – to clarify – I’m stating my view – I’m not reciting law.

  10. Such an unbelievable and heartbreaking story. I’m a n Army wife of twenty one years with a 19, 7, and almost 5 year old child. As an American, it is utterly appalling that something so horrible could happen in our country. Like you, I always try to hear and understand both sides of a story. The adoptive families desperation is obvious. I’m assuming conceiving on their own was not an option…and while I Have my own children, I know the soul wrenching agony of wanting a child. Our first child was born easily, and with no problems. The view of my family looks beautiful from the outside…and they are! The things that people don’t know is that we have suffered 10 miscarriages and one infant death. Fertility has a way of making you lose all senses.

    Having said all of that, the course that the adoptive family has chosen is greedy, self serving, and at this point- criminal.. As s military wife it’s alarming that a soldier could be sent on a mission or schooling only to come home with their child adopted without ever relinquishing their parental rights. Of course this poor child is going to Have serious separation issues with being taken from the only family she has ever knows…but that is a situation that could have been completely avoided by the Freis. THEY have now created this monster and wants to use that as an excuse as why they should be allowed keep the little girl.

    Their are an infinite scenarios of what through definition of a family is. Two traditional parents, single parents, two moms, two dads, children being raised by grandparents, aunts, uncles…etc ect. Being a traditional family doesn’t make you good or decent .Love, honesty, and doing the right thing for your child (even when it is the most difficult thing in the world) makes you good and decent.

    Keeping a daddy from a daughter he so desperately wants for over a year and a half…all while using money, lawyers, and an antiquated ideal of what ” family” is, is not good, and definitely not decent. It’s actually quite the opposite.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s