The Article examines the role that legal representation of birth and prospective parents may or may not play in independent domestic adoptions in furthering two primary goals that characterize ethically and humanely conducted adoptions, deliberate decision making and finality. Ideally, these two goals are complementary and can be balanced with one another. There is, however, a danger of the second goal eclipsing the first. Many state laws appear to value an increase in infant adoptions over the goal of encouraging careful deliberation. Most domestic infant adoptions involve powerful market forces as well as powerful emotional pressures, and they occur in the context of a national commitment to encourage adoptions of older children and children with special needs. Infant adoption service providers' livelihoods or profits generally depend on successfully arranging adoptions for their primary clients, who, for the most part, are relatively prosperous, well-established, and socially favored married couples whose desires to bear children have been thwarted by infertility. In their efforts to adopt, these couples often face great difficulties and pay high fees. By contrast, birth parents in the stressful situations that lead them to consider placing their infants for adoption are not an organized group and are relatively powerless and socially disfavored. To help ensure that the goals of adoption are successfully met, states' adoptions laws should make clear that attorneys may not simultaneously represent adoptive parents and birth parents. Attorneys and other adoption services providers should be required to clearly inform birth parents, orally and in acknowledged writings, that birth parents' interests are not and may not be represented by attorneys who represent prospective adoptive parents. While separate representation for birth parents is unlikely to become commonplace - and when it is funded by prospective adoptive parents, involves a danger of conflicts of interest - birth parents should be clearly informed about their right to have legal representation.
Legal Representation of Birth Parents and Adoptive Parents, 9 Adoption Quarterly 73 (2006)