Public Health Law Map - Beta 5 - Medical and Public Health Law Site

constitutional protections or federal law, persons may be denied the right to adopt
for reasons that would not support terminating their parental rights were they
already legal parents. This process has been criticized for giving babies to the
highest income couple whose religion and politics agree with those of the baby’s
case worker.
As the physician in the Sarosi case discovered, physicians should not second-
guess this procedure by trying to set up matches between prospective parents and
pregnant women. Physicians have neither the resources nor the authority to
investigate prospective parents properly. No physician wants to face the nightmare
of finding that the couple he or she recommended became child killers. It is to be
expected, however, that some couples will seek private placement because they
would be found unsuitable in a parental fitness evaluation. As with the physician’s
participation in obtaining a patient’s waiver of parental rights, such matchmaking
raises ethical questions about the coercion implicit in the physician–patient
relationship. A patient may feel coerced into complying with the physician’s
recommendation on placement. As in the Sarosi case, this matchmaking can violate
state adoption laws.
Physicians should be cautious about participating in adoptions that are arranged
outside the state welfare system or recognized nonprofit agencies. Termination of
parental rights and adoption are also implicated in fertility procedures that involve
the transfer of a baby from the birth mother or her husband to the family
contracting for her services. If the birth mother is profiting from the adoption, if the
attorneys or physicians are being paid excessive fees, or if there is a broker, the
transaction will violate the baby- selling laws in some states. In states that do not
allow private nonagency placements, any involvement with private parties who are
seeking to arrange or facilitate adoptions can be illegal. The physician should be
especially cautious about participating in adoptions that cross state lines. If the
transaction is illegal in either state, there can be prosecutions for kidnapping when
the baby is moved across the state line. Physicians who assist private placements
should always retain their own attorney to advise them on the legality of each
transaction.
c) Evaluating Potential Adoptive Children
The publicity about crack babies and babies infected with HIV has made potential
adoptive parents very concerned with the health of the baby in question. Less well
publicized is the high level of tuberculosis in adoptive children from Third World
countries. Physicians examining babies for adoption are subject to malpractice
lawsuits if they fail to diagnose conditions, within the standard of care for
pediatrics, that would be grounds for not adopting the baby. In some states,
physicians may be sued for fraud if they withhold information about the baby that
would influence the adoption decision. Since such information may involve the
mother’s behavior, the physician must have a written authorization from the mother
or a court order before transmitting such information to the adoption agency or
prospective parents. There may be a conflict with the physician–patient
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