In a 1976 movie based on a true story, a gentleman by the name of Mark Felt told a reporter to "follow the money." The reporter followed that little piece of advice from the steady tidbits of information that Mr. Felt provided and what he uncovered changed the course of American history. The reporter was Bob Woodward, and the trail of money led eventually to the impeachment of the President of the United States, Richard Nixon. The phrase is still used today in investigations of less that ethical conduct and could be used today to describe certain adoption practices in Arkansas.
Let's start with some background into what the law prohibits and allows. The law states: "Under no circumstances may a parent or guardian of a minor receive a fee, compensation, or any other thing of value as a consideration for the relinquishment of a minor for adoption." Ark. Code Ann. 9-9-206(c). That sounds great on paper, but in practice this is exactly what is happening because of what follows next: "However, incidental costs for prenatal, delivery, and postnatal care may be assessed, including reasonable housing costs, food, clothing, general maintenance, and medical expenses, if they are reimbursements for expenses incurred or fees for services rendered." Ark. Code Ann. 9-9-206(c). Some of these things are easy to define, like housing costs, food, clothing, and medical expenses. But what is "general maintenance"? The law doesn't define it, so the term is ambiguous. Some adoption providers are passing tons of money from adoptive parents to biological parents under this broad category.
However, two factors add to the complexity of the problem. First, the law requires that all adoption proceedings be strictly confidential. The courtrooms are closed. The files are sealed. There is no public record of what happens in adoption court. While the legislation I've written does not address this issue because there are certainly more circumstances than not in which an adoption should be a private matter, there are cases in which at least some public record of adoption should exist.
Secondly, the law does not require an itemized statement of what money was spent. It only requires a report of expenses incurred in a manner acceptable to the court. Ark. Code Ann. 9-9-211. If the court doesn't require an itemization, then it isn't required and attorneys and other adoption providers can facilitate payments in under the "general maintenance" category with no oversight as to whether those payments are proper. Worse, there is ample anecdotal evidence that adoptive parents are giving money to attorneys to pass on to birth parents, and birth parents are not seeing all of that money. It's unconscionable, but let's complicate it even more by asking what would happen if the court didn't approve of how money was spent? The law doesn't require anything to happen.
There is nothing in the law that hints that a court could or should deny an adoption based on unlawful payments of money. There are no consequences for adoptive parents who knowingly pay money in exchange for a person to give up their child for adoption. In practice, this is rarely if ever the problem. But because there is no transparency in how the money flows, adoptive parents are giving money to an attorney who then gives money to an adoptive family that in at least some cases clearly violates the law. The legislation I've written would change that in two ways. First, it would criminalize soliciting someone to give up their child in exchange for money (Section 9). Secondly, it would criminalize facilitating payments to a biological parent outside of what the law allows (Section 3).
There are consequences for biological parents who unlawfully accept money in exchange for their child in an adoption proceeding. Ark. Code Ann. 9-9-206 makes it a Class C Felony punishable by 3-10 years in the Arkansas Department of Corrections, a $10,000 fine, or both. There are a few problems with this even. First, many of the adoptions that are subject to abuse right now are taking place in vulnerable migrant communities in Arkansas that have no idea what is or is not permissible. Granted, ignorance of the law is no excuse. However, that an attorney or someone working for the attorney insinuates that it is perfectly acceptable to take money for an adoption (often a fixed amount of between $5,000 and $10,000) should be taken into consideration. Even still, the only remedy in the law if a court does not approve of how money has been spent is for the court to forward suspicious cases to the sheriff or prosecuting attorney. The court cannot deny the adoption on those grounds and a child has still in essence been purchased.
To fix this particular problem, the legislation I've written requires two itemized statements to be filed with the Court, one from the biological parents and one from the adoptive parents (Section 7). This legislation would require the reports to be itemized such that the reports stated the date of each disbursement of anything of value was made or received, the specific purpose for which that disbursement was made, and the specific exemption provided by law which allows for that type of disbursement to be made. Courts would no longer have the discretion to determine what is and is not an acceptable report - this legislation would clearly provide for that. Then it would be up to the court to scrutinize the reports to make sure nothing looks suspicious.
What to do if something does look suspicious will require much more discussion and consideration. Should the adoption petition be denied? If so, is that really what's best for the child? Should the adoption petition be granted? If so, is that really what's best for society? Finding the balance between what's best for the child even if that means the child has for all intents and purposes been bought, and what's best for society even if that means a child will end up in an already strapped foster care system or with parents who attempted to place the child up for adoption will be a very difficult process for later legislation. But at least this round of legislation will provide serious criminal sanctions for those who would turn something as beautiful as adoption into something as ugly as human trafficking - in the most egregious of circumstances, up to 40 years in prison.
In sum, the law right now doesn't allow anyone to follow the money - or at least it doesn't require it. But because of evidence of abuse, the law should change to require courts to follow the money. It should further criminalize unlawful payments, solicitations, or facilitations of unlawful payments as contractual consideration for placing a child up for adoption. You can help get it done! #BeTheChange #ARARAct
Here are a few things I've learned that some attorneys or their employees are telling biological parents who are considering placing their child up for adoption:
It has to stop, and with the legislation I've drafted I hope it will. Right now, Arkansas law requires that a person or organization be licensed before placing a child up for adoption unless they are a physician or lawyer. It is this loophole that some attorneys and perhaps some doctors are using to carry out these abuses. We propose we close that loophole by:
Biological parents need to have someone who will look out for their best interests, and the attorney that is both placing a child up for adoption and representing the adoptive parents is not the proper person to do that. These parents need independent attorneys who can put the courts, their clients, and potential adoptive parents at ease. These parents need someone who will stand up and ensure that no one is forcing them into giving up their child for adoption.
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1. Adoption has become human trafficking in vulnerable communities in Arkansas.
Yes, you read that right. There are people who know their rent and groceries will be covered so long as they are pregnant and that they are giving up their child for adoption. Others come from far away places without a good grasp on the English language from a culture where adoptions are routinely open to a state where adoptions are by law closed. There are attorneys who pay finders fees to people who will bring an expecting mother or couple to them to place the child up for adoption. How do I know? For starters, I've adopted two children from parents who live in these communities, and while I'm confident that our adoptions were above board and ethically done, I've heard story after story indicating we are the exception, not the rule. It sickens me.
2. When hospitals suspect human trafficking in this context, there is little they can do.
The law right now requires hospitals to follow the directive of birth parents in releasing a child to someone else if it is properly executed. Never mind that a doctor may see the sadness in their eyes. Never mind that a social worker may have witnessed coercion or duress levied against them. Never mind that the parents may not be able to read the documents they are signing. Never mind that their instincts tell them something is very wrong with the situation. They must comply. Some may be taking the risk of not complying with that directive, but the law is pretty clear.
3. Broad definitions of legal reimbursement are all but allowing birth parents to sell their child.
The law does not allow birth parents to sell a child. However, they can receive reimbursement for reasonable expenses related to the pregnancy. What does that mean? It could mean anything. On top of that, there is little or no transparency in what the money is used for. Most reports filed with the Court supervising an adoption have three line items: attorney fees (which are often excessive in these cases), court costs, and birth mother expenses. The reports rarely, if ever, itemize what money was used for so that the legitimacy of the payments can be scrutinized.
4. Migrant birth parents make establishing jurisdiction difficult.
Many birth parents in these situations are migrants, either willingly or otherwise. They come to the state of Arkansas for the sole purpose of adopting away a child, whether the adoptive parents are residents of Arkansas or not. The law right now requires that if adoptive parents are coming from out of state to adopt a child, the biological parents must be residents here for four months. That birth parents have lived here for that long is increasingly difficult to prove and the Arkansas judiciary is noticing that it is being abused.
5. Some attorneys who practice adoption law have serious conflicts of interest.
Many times, biological parents will go to an attorney to place their child up for adoption knowing that attorney will immediately give them money. That attorney is also approached by unsuspecting parents eager to adopt without the red tape of many adoption agencies or the Department of Human Services. The attorney will take money from the adoptive parents, give some of it to the biological parents for often unspecified purposes, file paperwork with the courts on behalf of the adoptive parents, require the biological parents to sign papers terminating their parental rights, and then go to court with both parties. This is a very dangerous practice for most attorneys that few are crying foul on right now.
6. There are people pressuring pregnant families to give up their children.
There have been reports of men putting pregnant women and their significant other on planes on the other side of the world headed for Arkansas. Some people know that they can make a quick $500 if they'll just bring a pregnant couple to an attorney, so they engage in high pressure sales techniques to convince them to give up their child. Some parents have tried to change their mind about putting their child up for adoption and are afterwards subjected to harassment, threats, intimidation, and other coercive action.
The worst part is that in Arkansas, the law is powerless to stop this madness.
That's where our legislation comes in. This legislation provides an independent attorney to represent the best interests of the biological parents and ensure that threats and intimidation are not part of their decision making paradigm. It criminalizes solicitation of a birth parent and the heavy handed tactics that have led to such abuses of the system. It revitalizes the jurisdictional requirements and forces proof that the Arkansas judicial system is not overloaded with petitions from people with no ties to the state. It gives hospitals a moral choice when there are concerns that the decision to place a child up for adoption was reached improperly. It requires transparency in how money flows from adoptive parents to biological parents through attorneys. And by God's grace, it will end the practice of turning something as beautiful as adoption into something as ugly as human trafficking.