Support for adoption transcends bipartisan politics. It is reflected in our popular culture, from Juno to The Blind Side. For the average American, the typical portrayal of adoption features a loving couple taking in an unwanted or neglected baby from an overpopulated orphanage. But at any given time, an estimated one million families in the United States are looking to adopt, with most of them seeking infants. That figure is dramatically higher than the number of available babies; recent estimates suggest that only 18,000 nonrelative infants are available for adoption in the United States each year. This means that dozens of couples are waiting to adopt each available baby.
Plenty of American children who are not newborns need families, but adoption from the US foster care system is a slow-moving process with a limited number of available infants. While some may imagine that the Supreme Court’s reversal of Roe v. Wade will lead to a rise in the number of adoptable American infants, such an outcome is unlikely. One study found that only nine percent of women who were denied an abortion chose to put their child up for adoption.
Some prospective parents turn to international adoption, but in recent years, many countries have curtailed or altogether ended their international adoption programs due to increased documentation of corruption, abuse, and child trafficking. There has been an estimated 98 percent decrease in the number of annual adoptions from abroad since 2005. A combination of structural, demographic, and economic factors—not just the termination of many international adoption programs—have facilitated this rapid decline, including several legal decisions that altered nations’ policies to favor domestic adoption.
So, what is the answer to this shortage of adoptable babies? For those with means, it is private domestic adoption. Public agencies are involved in roughly 1,000 of the 18,000 annual nonrelative infant adoptions in the United States, approximately 5.6 percent. So, the overwhelming majority of domestic infant adoptions depend on the private sector and are subject to the market forces that drive it.
By law, an expecting mother has the right to change her mind about adoption any time before birth—and afterward, for a period called the relinquishment period, that varies between states. But far too often, this is a right in name only. Adoption agencies, lawyers, and consultants charge fees that reach into the tens of thousands of dollars. These fees—ranging from $20,000 to $45,000—cover a birth mother’s medical expenses, legal representation, court fees, and social worker fees. Some states, like California and Nevada, consider these expenses a form of charity that birth parents do not need to pay back. But in most other states, nothing prohibits adoption agencies from coercing birth parents to repay egregious sums when their match fails and the mother keeps the baby. For birth mothers who lack the resources to do so, this obstacle alone can prevent them from raising their child.
The scarcity of available infants, combined with an alarming lack of regulation, has made domestic baby-brokering a lucrative business while simultaneously putting the safety of vulnerable populations, particularly children, at great risk.
The root of this problem is, put simply, supply and demand. Take the Adoption Network Law Center (ANLC)—the largest law corporation in the nation providing private domestic adoption services—as an example. Their compensation model generates pressure to bring people, including birth parents, through the door. After meeting targets, employees reportedly earn extra by signing up more adoptive couples or completing more matches. And when a birth mother places multiple children with the ANLC, she is labeled a “frequent flier.” “The whole thing became about money and not about good adoption practices,” said a former employee to Time Magazine. To make matters worse, Kristen Yellin, the owner of the ANLC from 2007 to 2015, defended charging lower fees to parents willing to adopt babies of color, saying that “their marketing costs were lower.”
Throughout history, the US private domestic adoption system has been used to maintain a social order that privileges upper-class whites. The transfer of children and babies was used as a tool in the forced removal of Native American children and in the separation of enslaved African children from their parents. The policing of Black families within the child welfare system and the removal of children from immigrant and asylum-seeking families at our border would not be possible without such an industry. But Democratic politicians choose to focus on how adoption makes otherwise unlikely families possible. For this reason, adoption surely is important: It enables queer parent-led families and voluntary single parenthood, creating bonds across racial, ethnic, and cultural differences.
However, the reality is that for these nontraditional families to form, a woman must often be exploited in her most vulnerable moments. Most women who give their infants up today report wanting to parent, but simply lacking the support and financial resources to do so. Our society should be taking measures to protect expectant parents and their children, but instead, we have allowed private agencies to take advantage of them. The advent of the internet removed another layer of much-needed oversight. Online adoptions create opportunities for fraud and financial coercion, which have been used to pressure expectant mothers into giving up their children. Some prospective adoptive parents have been found to negotiate with expectant mothers directly via Craigslist ads. Perhaps most alarmingly, people who adopt children and then change their minds find new homes for them in Facebook “adoption disruption” groups—forums without any supervision from child welfare agencies.
“It is abhorrent that children are being sold on the black market. It is unacceptable,” Senator Marsha Blackburn (R-TN) said in support of the KIDS ACT, a bill proposed to Congress in 2019. The bill, which would have explicitly and federally banned the sale of children, failed three years ago. Today, federal law prohibits facilitating child prostitution or labor. But the loophole still exists for the sale of a child for other purposes, such as financial gain in private adoptions. Agencies are usually licensed or registered with relevant state departments of health and human services, and adoption attorneys practice under the auspices of a state bar. While states are ostensibly in charge of keeping private adoption entities in check, there has been little to no progress in mitigating the industry’s abuses.
The private domestic adoption industry needs more muscular federal regulation. This would rapidly address opportunities for exploitation, such as the flying of expectant parents to states with shorter relinquishment periods and lower birth mother expense caps. Federal oversight would likely make adoption less expensive, as agencies would no longer be able to capitalize on legal differences across state lines. Policymakers should also implement uniform licensing standards and regulations on fees. In this ideal, yet entirely possible world, private domestic adoptions would be performed only by full-service, non-profit agencies.
The best interests of all parties, particularly children, in adoption processes in the United States can only be met if private domestic adoption moves toward an exclusively non-profit model. The transfer of human beings should not come with a profit motive. On the road to comprehensive reform, the first priority should be a fundamental de-commodification of how this country approaches adoption.
[Editor’s Note: This article was published in the Fall 2022 issue of the BPR magazine.]