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Published 11/18/2010 at 9:40am  |  Views: 12107
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by Stuart S. Sacks
Original Article

For many years, I have received requests from adoptees to help them find their biological parents and from birth parents who want to find a child they placed for adoption years ago. Whether these requests were for legitimate medical reasons or curiosity, Pennsylvania law has prohibited such disclosures. Further, most judges refuse access to court records.

The lack of access to adoption records by adoptees and adopting parents has been a source of great frustration for Pennsylvanians. Through the years, roughly 30 states have passed laws that allow information about birth parents and adoptees to be released to each other under standards that protect each individual's rights. Finally, Pennsylvania has moved forward. The Adoption Act was changed last month and allows more openness. It will go into effect on April 25.

The courts and agencies will be required to maintain medical and family history information of adoptees and their families. This information will be available in the future for the courts to release with the consent of the birth parents and adoptees.The state Health Department also will be able to release original birth records. Birth parents and adopting parents now will be able to make voluntary agreements for post-adoption visitation and contact.

Current law cannot enforce these agreements. Many birth parents chose to place their child outside of Pennsylvania so they can maintain some form of contact with their child. At the time of the adoption plan, there is now a duty to notify adoptive parents and a birth parent, and in some cases the child, that the option exists to enter into a voluntary agreement.

This will require all agencies and private practitioners to significantly alter their current practices to collect this information. The agreement must be in the best interests of the child, appropriate for the child and subject to approval by the courts.

The law now recognizes not only the rights of the adoptee, but is expanded to include birth relatives defined to include parents, grandparents, stepparents, siblings, uncles and aunts. Any agreement must be filed with the court where the adoption is finalized to be enforceable so special care must be taken by all persons in the adoption process to meet the new standards.

The statute lists at least six factors to determine the best interests of the child, including the relationship of the child with birth relatives and the bond between the child and the birth relatives. It is here that the courts will need to separate adoption placements with no contact or relationship with birth relatives and those with higher levels of contact.

Fortunately, failure to comply with these requirements will not invalidate the adoption. Any party to an agreement, a sibling or a child who is the subject of the agreement may now seek enforcement. Mediation also is permitted. Money damages may not be sought. Existing law prohibits the disclosure of adoption records without approval by a court under limited circumstances.

Under the new law, agencies and private attorneys will be required, for the first time, to provide medical and family history information to the courts. The information must be maintained and made available to adoptive families, the adoptee and birth relatives. In addition, the Department of Public Welfare is to establish a statewide confidential registry to retain medical and social history information, along with authorization forms that identify whether parties are willing or not willing to allow disclosure of identifying information.

Further, if the termination of parental rights occurs in Pennsylvania and the child is placed with a family from another state, vital information will remain available to the adoptee. The information is available to an adoptee who reaches 18, a birthparent when the adoptee is 21 and a birth sibling of an adoptee under certain limited circumstances.

These additions to the Adoption Act help to bring Pennsylvania into the modern era and make our laws more consistent with the laws of other states. More than ever, getting proper legal advice from experienced lawyers is important to safeguard these new rights.

Stuart S. Sacks is a partner at Smigel Anderson & Sacks. He is a fellow of the American Academy of Adoption Attorneys and at the American Academy of Assisted Reproductive Technology Attorneys.