Once again thanks go to The Adopted Ones blog to letting me know that it was time to go back and look at Utah again. There’s some new Utah legislation that I think merits a close look.
For those of you who may not have been following along closely, Utah has come up repeatedly in this blog because it has laws that dramatically limit the rights of unmarried men to claim legal parentage. As I’ve discussed before, this is the result of a policy choice Utah has made–the state wants to encourage adoption by married couples and giving unmarried men the right to object to adoption runs counter to that goal. Obviously the merits of this policy are debatable–but I’m going to stay on a more technical level for the moment.
As you’ll see if you scroll through the posts, Utah’s approach has generated some controversy. One problem is that this law sometimes seems to spill over into the rights of married men–which like it or not, the law sees as a completely different topic. Even supporters of Utah law ought to agree that applications of the law to cases like Achane are wrong and there is a fair bit of evidence to suggest it isn’t just an accident, but rather deliberate misconduct on the part of the Utah agency involved. This lead to some concerns about adoption fraud and there were indications that Utah might actually do something about this problem. It looks to me like this has now happened. The article notes that Utah has implemented some ethical rules that I think are designed to prevent what happened to Terry Achane.
But this isn’t the only tweak of Utah law noted in the article and one of the other ones mentioned suggests to me that Utah isn’t retreating at all from its harsh treatment of unmarried men. Notice the reference in the newspaper to SB 232? Here’s the actual bill, as enacted, and I’m going to walk through what I think it means. (It isn’t always easy to read legislation and I am not going to guarantee my reading is correct.)
I’m jumping down to line 243. (Most of this is already existing law and I will specifically note what seems to be new.) Basically, if a man abandons his child then his consent to adoption isn’t required. This actually seems like a fairly reasonable proposition. But of course, it does depend on what constitutes “abandonment” and this part of the law defines that is new and is in lines 244-46.
“abandonment” means failure of a father, with reasonable knowledge of the pregnancy, to offer and provide financial and emotional support to the birth mother for a period of six months before the day on which the adoptee is born.
(You can also go up to line 92 and see that under existing law an unmarried man who engages in intercourse “is considered to be on notice that a pregnancy…..may occur.” I don’t know if that will amount to “reasonable knowledge of the pregnancy” but it might.) The requirement of emotional support in addition to financial support was a late amendment to the bill. Crucially line 261 notes that implied consent “may not be withdrawn.” In other words, failure to provide the required support means you have no ability to object to the adoption because you have already consented to it.
This obligation to provide financial and emotional support (and by the way that “and” in there is important–it means he must do both) is forgiven where the failure is attributable to the birth mother’s refusing to accept the support offered. And he’s forgiven the failure to provide emotional (but presumably not financial) support where that’s due to impossibility. (This is in lines 247-49.) But basically this looks to me like another hurdle for the unmarried man. I think that even the unmarried father who has done the things required in the earlier sections and is therefore entitled to notice of the adoption is bound by the implied consent that cannot be withdrawn. Thus, if he is found to have failed to provide the required support and if that failure is not excused then even if he gets notice, he cannot in fact object to the adoption.
I’d be very curious to know if this is how it looks to other people and/or if this is how it has played in the Utah legislature.