Out of Sight, Out of Mind, But Not Out of Duty: Adoption Agencies' Duty to Disclose Medical Information to Birth Parents Post-Relinquishment
11 Pages Posted: 13 Aug 2007
Today, the role of a child welfare agency is multi-faceted. An agency often provides adoption services, unwed parent services, and foster care services. As a result, agencies struggle to meet the often conflicting needs of three separate clients: the child, the adoptive parents, and the birth parents.
Each part of the adoption triangle presents its own unique problems. From the child needing placement in a permanent family to the adoptive parents wanting a child, to the birth parents not ready or not willing to become parents, an agency works to meet all needs. In doing so, the agency often takes on the role of intermediary, serving to place the child of the birth parents with adoptive parents.
As an intermediary, one role of the agency is as an information conduit. The birth parents relay information about their medical history, family background, and reasons for relinquishment. In turn, the agency passes non-identifying information on to the adoptive parents. As an adult, the child may return to the agency and receive this non-identifying information for him.
In modern adoptions, the birth parents also may receive information about the adoptive parents and the child. Indeed, post-placement information sharing is often heralded by agencies in their marketing efforts to recruit adoptable babies.
The law fully recognizes an agency's legal duty to disclose information to the child and adoptive parents. State statutes dictate what information must be shared. Indeed, adoptive parents may recover damages against an agency for failure to disclose pertinent medical or social history information.
The law, however, inadequately protects birth parents. While some states have recognized the need for disclosure of medical information, the vast majority do not. Medical information regarding the adopted child can be just as crucial to birth parents, however, in their later reproductive decisionmaking. Knowledge that an earlier child had a genetic illness may impact a birth parent's decision to have additional children, to undergo genetic counseling, and to undergo extensive prenatal testing. Birth parents seeking damages for an agency's failure to disclose medical information regarding the adopted child received post-adoption have, however, been turned away for lack of duty.
This essay will examine whether an agency owes a duty to birth parents to disclose information received post-placement. First, this essay will consider the changing practices of modern adoption and their potential ramifications for agency duties. Second, it will examine the birth parents' need for information and the nature of an agency's duty. Last, this essay will consider four theories under which a duty to disclose to birth parents could be established. This essay will conclude that changed adoption agency practices result in an agency's acquired duty to disclose medical information received to birth parents. As a result, agencies may be held liable for failure to disclose information received to birth parents.
Keywords: adoption, adoption services, adoption agency, child welfare agency, medical information, disclosure of medical information, duty to disclose medical information, failure to disclose, post-placement, birth parents, adoptive parents
JEL Classification: J12, J13, K10, K39
Suggested Citation: Suggested Citation