Conversations on adoption, family, parentage and the law

What Adoption is not (or shouldn’t be)

You may have read about the Florida millionaire attempting to protect his fortune from a lawsuit by adopting his girlfriend, who is 42 years old.  According to media reports, as his legal child the girlfriend then becomes a beneficiary under a family trust set up for the benefit of his children.  As a result, the girlfriend/daughter can receive payouts from the trust, while the man’s creditors– including anyone with a court judgment against him– can’t touch the money, because it is held in trust for his children.

Could that happen here?  Should it be able to happen here?

The short answer to both questions is NO.  

First, B.C.’s Adoption Act  requires that if someone over the age of 19 is going to be adopted, the court must be satisfied that the person being adopted– the intended “child”–  actually lived with the person who wants to adopt them as a member of the family, and was supported by that person while still a child. The applicant must also convince the court that there is an acceptable reason for the adoption order to be made. 

Second, to allow such adoptions would be contrary to public policy and common sense, on many levels.

One objection is that adults adopting their lovers or spouses results in incestuous relationships, with possible criminal consequences– in some jurisdictions, the criminal definition of incest includes sexual relationships between persons related by adoption.  In addition, there is no roadmap for what should happen if the “parent” and “child” end their romantic relationship.  They can split up, but unless the “child” finds someone else to adopt him or her they will still be parent and child, with the legal and moral obligations to each other that stem from that relationship.  Estate law may give them inheritance rights and standing in an estate dispute.  And while it sounds like a stretch, in some jurisdictions they could face the possibility of parental support obligations.

This not what adult adoption laws are for.  Adoption  is about building family, not protecting people from creditors.

Bottom line– this is not what adoption laws are for.  Adult adoption is about building family, not protecting people from creditors.  In some places, adoption has occasionally  been used by same-sex couples to establish legal rights and protections for their partners, but it has been a tool of desperation utilized by couples with no other means of protecting each other.  Legal recognition of same sex relationships makes such well-intended use of adult adoption unnecessary.

Best of luck to the Florida millionaire and his girlfriend/daughter should they part ways.  Thankfully in BC we can just watch their drama from the sidelines, assured it won’t happen here.

Sperm donor case now in Court of Appeal

This week, the BC Court of Appeal is hearing the case of Olivia Pratten, the Ontario journalist who is seeking the right of children born through sperm donation to know their biological origins.

Last year, Madam Justice Elaine Adair of the British Columbia Supreme Court struck down provisions of the Adoption Act as unconstitutional, finding that the Act failed to provide Ms. Pratten and other children born through assisted reproductive technologies with the same rights to information about their biological parents as are provided for children who have been adopted (Pratten v. British Columbia ).  Justice Adair gave the province 15 months to correct the problem by amending the legislation.  She also ordered an injunction that prohibits sperm banks from destroying donor records or transfering those records outside of B.C.

Prior to the injunction, it was lawful for such records to be destroyed after after six years, although practices varied between clinics.

The BC government is appealing the decision, arguing that existing laws permitting anonymous sperm donation are constitutional.

“Donor offspring of anonymous donors. . . are left with the same sense of genealogical bewilderment that has so negatively affected adopted children’s sense of self, belonging and identity and indeed led to the transformation of adoption laws” — Dr. Diane Ehrensaft, expert opinion in Pratten v. British Columbia

For Ms. Pratten herself, any change to the law is likely too late.  It sounds as though the records that could have identified the sperm donor in her case were destroyed several years ago.   As medical advances lead to increasing use of assisted reproductive technologies,  however, the  issues of whether and how individuals in Ms. Pratten’s situation can access information about their genetic origins– and how those records are to be preserved and regulated– must be addressed.   I will be following the Court of Appeal’s decision with interest.

 

BC Adoption agency closing its doors

Those of us who have not been through the experience of adopting a child sometimes wonder what motivates the many British Columbians who spend years working their way through the red tape commonly involved in international adoptions.

I got some insight into the source of that determination when reading about the recent  closing of the Hope Adoption Services in Abbotsford.  One of their clients is Barry Penner, the former Attorney General and four term MLA.    Describing his experiences with children in Thailand, Mr. Penner was quoted in the Globe and Mail making this simple observation:  “What I expected was that the children would cry when a stranger picked them up. It was the opposite – they cried when you tried to put them down. I wasn’t ready for that.”

Hope is one of only five licensed adoption agencies in B.C.  As the Globe writer observed, the agency’s closing is both a blow to prospective parents and an indicator of a possible shift in the landscape of international adoptions.   Countries around the world are tightening the rules governing international adoptions, which can aid in reducing questionable adoption practices but raises the cost and delays involved for legitimate agencies and prospective parents.

Hope announced its closing on its website early in January, stating that the Provincial Director of Adoption would be assisting the agency in completing its current files or transferring them to other agencies.

For most of Hope’s existing clients, that likely means more waiting.  It would be comforting to believe the difficulties facing agencies like Hope are a result of a decrease in the number of children out there who cry when a stranger puts them down.  Sadly, I doubt that it is the case.

Children born of assisted reproductive technologies– rights to information

Parents considering the use of assisted reproductive technology to form their families face a daunting range of questions.  A critical one is considering what information will be available to their children about their genetic origins.

Some parents using sperm donation, for example,  deliberately chose a donor known to their family, someone they hope will have a connection with their child and who can help answer questions they or their child may have regarding her family and medical history.  Others have preferred as much anonymity as possible, protective of their family’s privacy and wanting to avoid the possibility of future contact from their child’s genetic father.  At the same time, donors of genetic material often want assurance that their donation will remain anonymous and that they will not be contacted in future or face any possibility, no matter how remote, of an obligation to the child.

Recently, the children affected by these decisions are being given a voice in the debate.    New in-vitro fertilization program guidelines issued by the Alberta College of Physicians and Surgeons last month  were critiqued in the media for falling short in their failure to require that the identity and medical history of donors be recorded and preserved.

Without such a requirement, a child’s right to information about his or her origins is rendered moot, because the information may not exist.  Records may have been destroyed or never kept in the first place.

That was the issue before the BC Supreme Court last year, when the court mandated this province to establish a system that will give children born through assisted reproductive technologies the same access to information about their biological origins as is provided for adopted children under the provincial Adoption Act.   The decision (Pratten v. British Columbia) heralded the end of anonymous sperm donation in British Columbia.  It is currently under appeal.

While children’s rights to information about their biological origins must be addressed, concerns arise that would-be donors of reproductive material may now have second thoughts about donating at all, out of fear they may later be contacted or found to have some form of legal obligation.  Parents who use reproductive technologies also need certainty about their parental status.   In B.C., pending changes to the law should put some of those concerns to rest.    As discussed here earlier, when the new Family Law Act comes into force the only legally recognized parents of a child born through assisted reproductive technology will be the mother who gives birth to the child and her married or common-law spouse.  Unless the parties agree otherwise before the child is conceived, a donor will have no legal status as a parent.

Teens waiting for adoption — TV coverage tonight

Last month, I mentioned the number of older children in care who are waiting for adoption in Canada.

I just saw that this week Global TV is running a news series on B.C. teens waiting for adoption, with a live blog later today and coverage during their nightly newscasts on January 30, 31st and February 1st.   I haven’t had a chance to see the newscasts yet, but will check it out.  Glad to see these kids are getting a chance to be heard.