The Children Money Can Buy

by Anne Moody

  Her story was designed to be horrifying to the homophobic in the classic “born again” tradition. It had the added virtue to its promoters of being unsettling, as well, to a broader audience of people susceptible to government-overreach stories. Watching her on these shows was no doubt incredibly frustrating to the DSHS caseworker, who was constrained from talking about the birth mother’s history, and it was terrifying to Joe and Alex.

  The drama surrounding the boy’s placement grew over the summer, and the parties found themselves back in court. The birth mother testified that DSHS had promised that her son would be placed with a mother and a father, and that placement with a gay couple was “my worst nightmare come true.” Her attorney claimed that she “was not fully competent and did not fully understand the consequences” of relinquishment, and had only done so “through duress and fraud.”2 The birth mother also claimed that she had straightened out her life, gotten married, had another child, whom she was raising, and now wanted to rear her son as well. The attorney for DSHS argued that her parental rights had been relinquished a year earlier and that the child had been in several different foster homes since that time, while the birth mother had made no effort to reverse her decision. She no longer had legal standing in this matter, and her efforts to regain custody were “the same as if someone came in off the street and started voicing their opinion about the welfare of this child.”3

  As for the issue of placement with a gay couple, the regional administrator for DSHS testified that state antidiscrimination law forbade DSHS from considering sexual orientation in selecting adoptive parents and that “the issue is parenting skills.” Joe and Alex had been thoroughly investigated, and it was determined that they were a good match for the child. Nevertheless, the birth mother’s attorney was briefly successful in obtaining a temporary restraining order against DSHS, and the placement was delayed. DSHS immediately appealed to the County Superior Court, and the temporary restraining order was dissolved, allowing them to proceed with the adoptive placement. Joe and Alex had been meeting with the child since summer, and he moved into their home within a few days of the September ruling. But that certainly didn’t end the battle.

  The parties were back in court in October, when the birth mother’s request to have the child returned to foster care was denied, but the maneuvering wasn’t over yet. In November, the birth mother and her husband filed their own petition for adoption and, incredibly, they found a Whatcom County judge who issued an order later that month for the boy to spend up to sixty days with them to see how well he did in their home. DSHS appealed this decision, arguing that it should be allowed to present arguments against that placement. In December, the same judge declared the DSHS desire to present evidence about the birth mother’s unsuitability as a parent “old news” and denied the agency a new hearing. DSHS then appealed to a higher court and eventually the earlier order for a sixty-day placement with the birth mother was blocked, with the appellate judge noting that “this blanket attempt to circumvent the legitimate exercise of the department’s custodial authority is utterly devoid of merit” and “contrary to established principles in the law of adoption.”4

  During the months of legal maneuvering, a number of “irregularities” having nothing to do with gay adoption came to light, raising questions about the wisdom of restoring the birth mother’s parental rights. Most alarming was the husband’s filing of a separation petition accusing the birth mother of threatening to kill him, herself, and their two-year-old daughter. Her attorney dismissed the couple’s problems with the statement, “If these things were said, I don’t think for a minute she was serious.”5 All the same, the birth mother, who was pregnant again, remained apart from her husband as they both continued to claim that they wanted to adopt the boy.

  By April, the birth mother’s life had become so obviously unstable that her husband was given custody of their daughter, and a judge ordered that custody of the new baby be given to the father immediately after it was born. Earlier that month, while pregnant, the birth mother had been hospitalized after taking an overdose in an apparent suicide attempt. By now, it had become impossible for anyone to argue that she should be allowed to adopt her son, but the religious right soldiered on without her in their war against gay adoption. Her attorney noted that he was handling the case without charge, although he did concede that the Rutherford Foundation had paid some of his expenses.

  The media reported extensively—and often breathlessly—on this story. People automatically took sides, depending on their views about gay adoption. No one was interested in the actual legal issues, which primarily concerned the legal intricacies around relinquishment of parental rights. It was clear that the battle was about gay rights and that the fight had never really been between Joe and Alex and the birth mother. Rather, it was a war waged by the religious right against liberal thinking and the LGBTQ community. The child was a very small but effective pawn in their game.

  While all the upheaval swirled around them, Joe and Alex quietly busied themselves at the job of becoming parents. The boy, traumatized by all the upheaval in his life, was a challenging child. Joe and Alex realized as they got to know and love their son that they had to do everything they could to prevent him from being hurt by all the negative publicity directed at their family. Not only did they not want him to become collateral damage in the anti-gay war being waged by the religious right—they felt well prepared to help him with that issue as he grew up—but they were concerned about protecting him from negative portraits of his birth mother as well.

  When the legal issues were finally settled, Lon Mabon went away, and Joe and Alex were free to finalize their son’s adoption and get on with their lives without the scrutiny of the media. They decided to reach out to the birth mother in an effort to give them all the opportunity to get to know each other and hopefully dispel some of the bad feeling between them. Joe and Alex wanted to put her fears about them to rest and reassure her that they would give her son a wonderful home. They also hoped to reach some sort of agreement with her about ongoing contact, since they believed it would be in the child’s best interests to maintain relationships with various members of his birth family. A meeting was set up at which all three adults got along well, and the birth mother reassured Joe and Alex that now that she had met them, she felt just fine about the fact that they were a same-sex couple.

  For some reason, the media wasn’t interested in this part of the story. There were no more talk-show appearances, and no one asked the birth mother to explain why her feelings had changed or how it was that she could have been so thoroughly manipulated by Lon Mabon.

  After my involvement with Joe and Alex, I became known as someone who was “gay friendly,” and attorneys began referring their gay and lesbian clients to me. Most of the time these people were either gay couples who were starting the search for an infant or lesbian couples in which one partner was adopting her partner’s baby. Often the two women had planned for the baby together, usually with the assistance of a sperm bank and sometimes with the assistance and ongoing involvement of a male friend or a relative of the partner who wasn’t giving birth. The gay couples would need a full home study for an infant adoption, whereas the women needed a home study for what is called a “second parent” adoption.

  For obvious reasons, it is harder for gay couples to become the parents of an infant than it is for lesbian couples. Traditional surrogacy, in which a woman (sometimes a relative or friend, sometimes someone they have hired as a surrogate) gives birth to a child that is genetically hers, has long been an option for gay couples. One of the men in the couple is usually the genetic father, through artificial insemination, and some couples opt to use a mixture of sperm from both of them so that they will have an equal chance of being the child’s genetic father.

  Gay couples may also choose to do what is called a “gestational surrogacy,” in which the surrogate mother carries a baby who is the genetic child of a
n egg donor (maybe a relative or friend or someone the couple has contracted with). Surrogate arrangements can be extremely complicated, both logistically and emotionally, as well as risky and very expensive. I’ve known a number of men whose happy families have been created through surrogacy, but it isn’t usually an easy process.

  During most of my career, adoption facilitators were the primary source of babies for the gay couples I knew. The facilitators they worked with were usually in California; they were expensive, and the babies usually arrived fairly quickly. This was because the men were willing to take risks that heterosexual couples typically didn’t want to take, such as working with women who had a history of substance abuse, criminal involvement, and other worrisome lifestyle choices. It may have been that gay couples tended to be more openhearted and empathetic, possibly because they knew what it felt like to be marginalized. More likely, they just felt they couldn’t afford to be picky.

  Despite the “outrageous sex columnist” style that made some conservative readers reject its advice, Dan Savage’s The Kid, written in 1999, is an accurate, encouraging, and tender portrayal of what it was like for a gay couple to go through the open-adoption process at that time. It is also both hilarious and frightening, depending on your comfort level with people who are different from you in one way or another. Savage eloquently explains how he and his partner found common ground with other adoptive parents in an era when gay adoption was supposedly frowned upon by most of society. They also found common ground with their son’s birth parents at a time when most adoptive families wouldn’t have agreed to an open relationship with a couple of “gutter punks,” as the birth parents described themselves. Dan and his partner worked with an agency called Open Adoption and Family Services, with offices in Seattle and Portland, which quickly became the go-to agency for same-sex couples who wanted to adopt an infant, and it seemed to me that things began to improve for same-sex couples slowly but steadily.

  I so clearly remember the time when my initial phone conversations with same-sex clients would start out tensely. Even though they had almost always been referred to me by people who knew that I was happy to work with gay and lesbian couples, the callers still seemed to feel the need to approach with caution.

  As the years passed, same-sex couples became more confident about being welcomed and supported by adoption professionals (sometimes the same people who had previously been conservative in their views on the subject), and eventually there were plenty of adoption counselors around Seattle who were eager to work with these families. Many adoption professionals these days routinely ask birth mothers if they are open to a same-sex couple, and many birth mothers say that they are, or at least that they are willing to hear about them or look at their profiles. Some birth mothers specifically seek out gay adoptive parents because they like the notion of being able to remain the only mother the child will have. This isn’t exactly a healthy or realistic expectation, though, and birth mothers who are motivated by the idea of co-parenting with a couple of men are likely to be unrealistic about other aspects of an adoption as well. The “Three Men and a Baby” (and a woman who flits in and out of their lives) fantasy is just that . . . a fantasy.

  In December 2012, when same-sex marriage became legal in Washington State, everything changed for the lesbian couples. If they were legally married, and one of them gave birth to a child, the partner/spouse was automatically also considered to be a legal parent, just as it is with heterosexual couples, even when the husband isn’t the biological father. I remember a night spent at the Seattle offices of the ACLU (where my daughter Caitlin now works) making last minute get-out-the-vote calls about legalizing same-sex marriage and the elation/amazement everyone felt the next day when it actually passed. The 2015 Supreme Court decision legalizing same-sex marriage throughout the nation further cemented the rights of these families.

  As a result, I have lost most of my lesbian clients, although some still go through the adoption process in order to ensure their legal rights in states other than Washington. Gay partners, even when they are legally married, still need to adopt children who are born through surrogate arrangements; however, as these arrangements become more common, for both same-sex and heterosexual couples, the laws will eventually catch up with that reality, and I will lose those clients as well. Normally I would not feel good about such a significant decrease in business, but in this case, I will be delighted, just as I am delighted to have had the opportunity to get to know so many same-sex couples over the years as they changed and improved upon society’s understanding of what it means to be a family.

  * * *

  1. Nicola, George T. “Oregon’s Other Gay Record: A Recent History of Anti-Gay Ballot Initiatives from Around the State.” Street Roots News. May 6, 2014. http://news.streetroots.org.

  2. Norton, Dee. “Possible Gay Couple’s Adoption Bid Halted.” September 11, 1993. http://community.seattletimes.news source.com.

  3. “Mother Files to Ban Adoption by Gay Couple.” New York Times. September 20, 1993. http://nttimes.com.

  4. Klass, Tim. “Mother Loses Bid for Return of Son, 3—Court Rejects Case Tied to Adoption by Gay Couple.” April 12, 1994. http://seattletimes.nwsource.com.

  5. Broom, Jack. “Troubled Couple Fight to Get Back Son.” February 17, 1994. http:community.seattletimes.nwsource.com.

  29

  Baby Brokers

  I used to be fairly confident in my ability to recognize and avoid unethical people and practices. I worked only with licensed agencies and with counselors and attorneys who had good reputations, and I didn’t work with birth or adoptive parents who wanted anything ethically questionable. I was always guided, as are most adoption professionals, by the knowledge that carelessness on my part could lead to tragedy for a birth parent or an adoptive family, in the form of a lamented decision or an overturned adoption. The possibility of these things happening because of a mistake on my part kept me on a very cautious path. The rules were clearer in those days, and I knew how to remain on the legal, ethical, and helpful side of things. But now I find it increasingly difficult to determine which people and situations are likely to become ethically problematic.

  Part of the problem is the proliferation of “adoption facilitation services,” which are allowed to function much like child-placing agencies but typically lack the rigorous state oversight that is required of licensed agencies. The efforts of facilitators are largely focused on connecting adoptive families with pregnant women who are considering adoption, generally through extensive advertising. Before I go on, I want to point out that adoption facilitators run the gamut from being dedicated, hardworking, and professional to uninformed, unethical, and a nightmare for both the birth and adoptive parents to work with. In fairness to facilitators, I also want to say that there are licensed agencies that manage to be ethical nightmares as well, despite strict oversight and regulation.

  The initial idea, and enthusiasm, for adoption facilitators grew in response to the skyrocketing costs of agency adoption. The idea was that the facilitator, for a much, much lower fee than an agency would charge, would take over what was considered by many families the most time-consuming and scariest part of an adoption—finding the birth mother. Once facilitators had done their initial research about advertising, their knowledge could be broadly applied, and they could be far more efficient than individual families in placing ads. Even more importantly, facilitators would screen the calls generated by their ads and presumably protect families from stressful, demanding, or even dangerous callers. After successfully connecting a birth mother and a family, the facilitator could hand things off to an attorney, who would complete the adoption. It was actually a good business model and very similar to that of Adoption Connections, except for one huge difference. There was no requirement that facilitators have training or experience as counselors, and there was no requirement for knowledgeable supervision by someon
e who did have the necessary training or experience. I can’t explain why this lack of attention to credentials and oversight seemed like a good idea to anyone, except that it did save some families money . . . for a while. And then it all backfired in a big way.

  The ads placed by adoption facilitators in the early days of their existence almost always offered to pay a pregnant woman’s “living expenses.” This was a real departure from traditional adoption agencies, who advertised their agency services, not their individual families. The agency might offer a birth mother assistance in the form of services (including concrete things like housing, maternity clothes, and medical care), but rarely was there talk about money changing hands. This was considered unethical. As a result, while the adoption professionals were preserving their ethical stance, the adoption facilitators were busily turning into baby brokers. Many facilitators enjoyed enormous successes in regard to the number of babies placed in adoptive homes and the length of time adoptive families had to wait until placement. Although there were some well-publicized problems, the speed of the placements easily overcame the objections. Families wanting a quick and relatively inexpensive adoption were, of course, drawn to facilitators. As businesses do when they are successful, facilitators began to raise their rates and, in an effort to attract more pregnant women than other facilitators did, also began to increase the amount of “living expenses” for birth mothers. In no time, the race to the top (in regard to cost of adoptions) and the bottom (in regard to ethics) was on . . . and, as far as I can see, there’s no end in sight.

  I know quite a few families who have successfully adopted through facilitators, and I still refer people to the facilitators I feel operate ethically. But I am increasingly insecure about my ability to make this judgment call, and increasingly reluctant to suggest that families get involved with this type of adoption. I also know quite a few families who have had to unhappily extricate themselves from unsuitable “matches” arranged by facilitators. Being “matched” used to mean that a pregnant woman had chosen an adoptive family after careful consideration. Now, it often means simply that this is the family from whom the woman has chosen to take money.