The Constitutional Rights of Natural Parents Under New York’s Adoption Statutes


New York’s statutory procedure for consent to private placement adoption raises serious issues of due process and waiver rights of natural parents. This Note analyzes current consent provisions in private adoption in New York, demonstrates the fundamental unfairness of the procedures for the revocation of an extrajudicial consent to a private adoption, and proposes that all consents to private adoptions be executed in court with specific safeguards for a valid waiver.

A parent who consents to release a child for adoption makes a decision of vital consequence at a time when such decision-making is extremely difficult. In most instances the parent is an unmarried mother who has recently given birth, has limited financial resources, and may be under social or family pressure to give up the child. Nevertheless, in this vulnerable position a parent may execute a consent to adoption that sets in motion a complex statutory process. If within a few days or weeks the parent has a change of heart, and attempts to revoke that consent, he or she may find that the adoption process, once set in motion, moves ineluctably to the final adoption decree. By that decree the parent will be “relieved of all parental duties… and of all responsibilities.., and shall have no rights over such adopted child.” The parental rights will thus be “terminated.”

New York provides for private placement adoptions (sometimes termed “independent adoptions”) that are arranged without an authorized adoption agency acting as an intermediary. The parent who selects the private placement method may do so because it seems easier, or because it enables her to control the selection of the adoptive family. The natural parent may believe that this method does not demand an immediate, final decision, and that there is a period during which the consent may be revoked. But in fact, under New York’s statutory scheme, there is a finality to a valid consent to private placement adoption that may not be adequately comprehended by the parent giving that consent. Technically, the statute does not effect the termination of parental rights until the final order of adoption. In practice, once the natural parent executes the consent to adoption, the parental rights may be terminated immediately and irrevocably.

This Note will show that it is unfair and also unconstitutional to terminate the fights of a parent, who has given an extrajudicial consent to adoption, under the procedures provided by New York’s statute for private placement adoption.

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