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