Two More Points About Utah Adoption Case

The past several posts have focused on a recent adoption case from Utah. I’m going to assume people are up to speed on the basic facts and the outline of the discussion here.  I’ve two more points to add to the conversation–one a news update (courtesy of TAO) and the other a further consideration of the legal issues raised here.

First the news:   As The Adopted Ones Blog says, the agency involved in the Achane case is apparently under investigation in Utah.   It’s actually a tad misleading to say “agency” as the article notes that the corporation has done business under at least eight different names.   Thus, I’m sure to many people it appears to be agencies.

Two things here are particularly striking to me:   First, the same entity faciliated five of the controversial and litigated adoptions of children born to unmarried women akin to ones we’ve discussed here.   These are cases in which the genetically related father has been unable to establish any sort of legal parental rights because of the strictures of Utah law.   (This does not appear to include the most recent case discussed here in which the genetically related man was actually able to win.   That post goes into more detail about the general issue, though.)   It’s hard to believe this is coincidence.   Instead, it seems to me the agency here is determined to get children to proper and married Utah families without too much regard for the details of life.

The second observation I’d make is that while this course of conduct could be ideologically driven–founded on a deep belief that married couples are really the best for kids–there’s some evidence to suggest that this particular agency (or the individual behind it) is also driven by greed.   Read all the way to the end to see what I mean.

In any event, I imagine we can all agree that agencies like this one give adoption a bad name.  (I figure you can agree with that whether you like adoption in general or not.)   While it is too bad that administrative processes move slowly, I’m at least glad to note that this agency was already on someone’s radar.  Perhaps the Achane case will lead to its suspension.

While on the subject of the news, it appears that the struggle in this case is not over yet.   Remember that the judge ordered the child to be turned over to Achane in January?   The lawyer for the Freis (the would-be adoptive parents) plans to appeal and challenge this order.   In other words, parental status will  be contested.   (And one last side note on the news–the lawyer for Achane says that initially the Freis were  ”duped themselves” although obviously at some point they became more fully aware of the surrounding facts.)

And then there’s the law question which I pose not particularly as a question of Utah law but as a thought question about what the law should be.   While no one has called me out on this, I think there’s an important little snarl right in the middle of my thinking about this case.

Why is it clear to someone like me that Achane should win here?   For those who think that legal parental rights should flow from genetics, this is a no-brainer.  He should be the legal father, he never gave up his rights–there you are.    But I don’t want to base legal parentage on genetics.   And actually, that’s not the basis on which Achane does get legal parental rights here.

In fact, Achane has legal parental rights because he was married to the woman who gave birth and the law recognizes the husband of a woman who gives birth as the legal father of the child.     In general, I’m not wild about this presumption so you might wonder about why I think it is so clear that Achane should win here.

It’s actually because of my insistence on the importance of law.  In this case the law is clear and Achane is entitled to enforce his legal parental rights.  The Freis and the adoption center here have evaded the force of law.   That’s not okay.   It’s cheating.   If you don’t like the law, then you should try to change the law, not cheat.   And if you do cheat, then you ought not to be able to win by arguing that the law should be changed, because this only encourages cheating.     That’s really my objection to the conduct of the agency and perhaps the Freis here.

Which leaves me, at least, to ponder a more difficult question:  what should the substantive law be in a case like this?    If you take the fraud and the cheating out of the equation, who ought to win and why?    That’s actually a harder question for me and I leave it for another day.

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