Malinda L. Seymore on "Social Costs of Dobbs' Pro-Adoption Agenda"

Malinda L. Seymore has posted Social Costs of Dobbs' Pro-Adoption Agenda on SSRN. This article is forthcoming in volume 57 of the U.C. Davis Law Review in 2023. Here is an excerpt from the abstract. 

Abortion opponents have long claimed that women denied access to abortion can simply give their children up for adoption. * * * Of course, this claim assumes away the burdens of the pregnancy itself, which can result in economic strife, domestic violence, health risks, and potentially death in childbirth. But even on its own terms, the argument that adoption is an adequate substitute for abortion access makes normative assumptions about adoption as a social good in and of itself, ignoring the social costs of adoption for birth parents and adoptees. Idealizing adoption then influences decisions about what constitutes a valid adoption, with courts minimizing the requirements for voluntary consent. In a new post-Roe landscape that narrows choices for those facing an unplanned or unwanted pregnancy, what reforms are necessary to ensure that birth parents are not coerced into adoptions they do not want?

First, this Article looks to patterns of adoption placement before and after Roe v. Wade legalized abortion, and relies on newly available empirical data since Dobbs, to paint a picture of the adoption landscape in a post-Roe world. It concludes that the Dobbs ruling will not appreciably increase the “domestic supply of infants” for adoption . . . . Second, drawing upon insights from psychosocial literature the Article explains how pregnant persons make the decision about adoption, who relinquishes for adoption, and the salience of abortion to that decision; thus informing our understanding of laws and practices of consent in adoption. Third, the Article outlines many of the potentially coercive tactics that have been employed by adoption professionals to persuade birth parents to relinquish their constitutionally-protected parental rights, including high-tech targeting ofpotential birth parents, the use of crisis pregnancy centers to steer pregnant persons to adoption, manipulating the emotional stress of pregnancy to procure consent, and taking advantage of the duress of circumstances of poverty. Fourth, the Article proposes reforms to adoption that give enhanced meaning to the requirement of consent: increased regulation of adoption agencies, independent options counseling, recognition of duress of circumstances as vitiating consent, greater procedural protection to include appointment of counsel, and judicial education about the realities of adoption.