Conversations on adoption, family, parentage and the law

Consent to Adoption

The purpose of this Act is to provide for new and permanent family ties through adoption, giving paramount consideration in every respect to the child’s best interests.  B.C. Adoption Act, section 2

Adoption is a transformational moment in the life of a family.  It marks legal recognition of a new parent-child relationship.  Equally significantly, it severs the legal relationship between the child and his or her birth parent.

While we celebrate adoption as a means of creating and recognizing family, in some contexts adoption has had a darker side.  Fear of unethical adoption practices, including child trafficking, has led Canada and other nations to suspend the adoption of children from a number of countries, including Cambodia, Nepal and Guatemala.

Closer to home, there is the recent news that a possible class action lawsuit has been commenced in B.C., seeking compensastion for birth mothers who allege they were coerced into relinquishing their babies for adoption when they gave birth outside of marriage in the 1940s – 1990s.  The class action has yet to be certified, but is anticipated to be the first of several such lawsuits that are expected to be filed across the country.

Contemporary adoption law recognizes the fundamental significance of severing the legal parent-child relationship, and strives to balance respect for birth parents with the overarching objective of furthering the child’s best interests.   In B.C., a birth mother’s consent to the adoption of her infant is only valid if it is given at least 10 days after the birth and is made in writing, under oath, after having been advised about the adoption by a lawyer or social worker.  The birth mother may retract her consent until 30 days after the child’s birth, even if the infant has already been placed with her prospective adoptive parents.

Birth fathers must also consent, provided they have acknowledged paternity, and/or signed the child’s birth registration or registered with the Birth Father’s Registry  (or have otherwise been identified as the child’s father under the Adoption Act).   An adoption cannot proceed without the birth parents’ consent unless the court is satisfied it is the child’s best interests to do so.

And when an older child is being adopted, the child herself must consent.  Commonly these are step-parent adoption situations, or cases where a child has been in the permanent care of the Ministry.  If the child is 12 or older, the court cannot make the adoption order without the child’s consent (unless she is incapable of giving that consent due to a mental disability).  The child can also revoke her consent at any time until the order is made.  Children over the age of 6 but under 12 must be interviewed by a social worker or other qualified person and a report of their views put before the court (see Adoption Regulation, section 16).