Indian Child Welfare Act Challenged in Fifth Circuit Court of Appeals

Last month Time published a longform article covering ongoing legal challenges to the Indian Child Welfare Act (ICWA). The article reports that a federal judge in Texas struck down ICWA for the first time in its 41-year history, on the basis that ICWA relies on racial classifications that violate the Equal Protection Clause of the U.S. Constitution. The case has been appealed to the Fifth Circuit Court of Appeals.

The U.S. District Court for the Northern District of Texas Fort Worth Division opinion can be viewed here. The Time article can be accessed here.

Claiming the 2018 Federal Adoption Tax Credit

Tax season is once again here. Families in the United States who completed an adoption in 2018 should consider whether they are eligible to claim the federal adoption tax credit. Below are links to two guides to claiming the 2018 federal adoption tax credit:

Considering Adoption: How to Claim the 2018 Adoption Tax Credit

North American Council on Adoptable Children: Claiming the Federal Adoption Tax Credit for 2018

Washington State Passes Law Permitting Compensation to Gestational Surrogates

On March 6, 2018, Washington State Governor Jay Inslee signed SB 6037 into law. The 55-page law consists of extensive updates to Washington's Uniform Parentage Act, including new subchapters on Assisted Reproduction and Surrogacy Agreements. Section 704(2)(a) of the new law specifies that surrogacy agreements may provide for "[p]ayment of consideration and reasonable expenses[.]" Previously, Washington law only permitted uncompensated, or "compassionate" surrogacy arrangements. 

The effective date of the new law is January 1, 2019. The session law can be viewed here. The legislative history of SB 6037 can be viewed here.


Proposed Federal Tax Reform Threatens Adoption Tax Credit

The New York Times reports that the federal tax bill proposed in the House this week would have the following impacts on adopting families:

  • The bill would repeal the adoption tax credit, which provides a credit of up to $13,570 per eligible child in 2017; and 
  • Employees who receive adoption financial assistance from their employers would be taxed on the assistance as income beginning in 2018.

The New York Times article can be accessed here


The Oregonian Reports on Adoptees' Efforts to Increase Access to Original Birth Records

The Oregonian recently reported on adoptees' efforts around the country to obtain legal access to their original birth certificates. As reported by The Oregonian, adoptees have unrestricted access to their original birth certificates in nine states: Alabama, Alaska, Colorado, New Hampshire, Oregon, Rhode Island, Hawaii, Kansas and Maine, while 20 other states provide some form of limited access to original birth records. Legislative efforts to increase adoptees' access to their original birth records are currently underway in Florida, New York, California and Texas.

The Oregonian's article can be viewed here


Minnesota's Legislature Considers Regulating Surrogacy

Earlier this month NPR reported that Minnesota state legislators are considering a bill that would regulate gestational surrogacy. A gestational surrogate (or gestational carrier) is a woman who is not genetically related to the pregnancy she carries and delivers for other(s). 

The bill received support from RESOLVE: The National Infertility Association, which is a nonprofit education and advocacy group, and the American Society for Reproductive Management, as well as people who have created families through surrogacy, but was opposed by a California-based group called the Center for Bioethics and Culture network, as well as the Minnesota Catholic Conference.

NPR's article can be accessed here.   


Oregon Foster Care Adoption: What's the Process?

If you are considering adopting a child from foster care in Oregon, the Oregon Department of Human Services (DHS) has a helpful website that explains the details relating to that process.  That website can be found here.

If you are just beginning your adoption journey and would like a resource that explains the step-by-step process involved with a foster care adoption, that information can be found here.

Lastly, you can find detailed information about financial assistance for adoptive families here.

As explained in the step-by-step guide noted above, after a child has been placed in a home for the purpose of adoption, the legal action of finalization can occur.  Once a court issues a final decree of adoption, the child is legally part of the adoptive family.  In our practice, we find that assisting families with the finalization of the foster care adoption process is incredibly rewarding. We are also able to assist families who want legal assistance earlier in the process, such as when negotiating a post-adoption communication agreement with a member of a child’s birth family.

The Donaldson Adoption Institute Recommends Sweeping Adoption Reform

In December 2016, The Donaldson Adoption Institute (DAI) published a thought-provoking report titled "Let's Adopt Reform Report 2016: Adoption in America Today." The DAI describes the five key themes of the report as follows:

  • Adoption Is Not a One-Time Transaction
    It’s a lifelong journey for the entire family. In order to encourage healthy identity development and strong relationships, it is important to understand adoption as a transformational experience that lasts a lifetime.
  • A Human Rights Framework Is Needed
    Adoption is in urgent need of a cultural shift; this shift requires us first and foremost to make decisions in adoption through the lens of human rights and to practice adoption in a way that primarily and fundamentally respects and upholds the humanity of all who are connected to this rich and complex experience.
  • Market Forces Create a Variety of Concerns
    It is critical to develop uniform standards and regulations in order to remove the influence of money as it relates to the practice of adoption. Children are not commodities.
  • Adoption in America Lacks Uniformity
    Adoption policies and practices vary widely by state and type of adoption. The consequence of these inconsistencies can lead to fraud, coercion, and undue stress of families and ultimately leaves children vulnerable.
  • No Reform Without Education
    One of the greatest impediments to meaningful reforms in adoption and foster care are the societal misperceptions and general lack of knowledge surrounding this experience. We must foster understanding in society as well as the systems that serve families if needed changes are to be made.

If you would like to access the report in its entirety, please click here.

Please note that the thoughts and opinions expressed in the DAI's report are those of the DAI, and do not necessarily reflect the opinions or positions of Anderson Ballard LLC. 

7 Captivating Adoption Podcast Episodes

The rise of the podcast has created audio entertainment on every subject under the sun, and the subject of adoption is no exception. Below are seven excellent and captivating podcast episodes that examine the experience of adoption.

Not So Simple MathIf you want to hear a birth mother describe her decision to relinquish her child for an open adoption and her relationship with her birth son and his adoptive family, listen to Not So Simple Math from the Modern Love podcast. 

Meeting Your Children / The Decision: If you are considering adopting from the foster care system, try Episode 1, Meeting Your Children / The Decision of the Foster Adoption Podcast by husbands Adam and Matt, who started their podcast in 2015 to share their story of adopting three and five-year-old siblings from the foster care system. 

Let's See How Fast This Baby Will Go: If you want to hear a former foster child recount the story of buying her first car while in labor with the child she planned to relinquish to her sister for adoption, listen to Let's See How Fast This Baby Will Go, which is one of three stories in the This American Life episode 494: Hit the Road.  

Thicker Than Water: A Podcast on Intercultural Adoption: If you are interested in intercultural adoption issues, check out Thicker Than Water: A Podcast on Intercultural Adoption by The Ethnic Isle, a Canadian blog focused on the issues of race and ethnicity. 

My First Lesson in Motherhood: If you want to hear about how a family dealt with the news of their daughter's potential health complications upon their arrival in China to complete the adoption and bring her home, listen to My First Lesson in Motherhood from the Modern Love podcast.

Adoptive Couple v. Baby Girl: If you want to hear a compelling account of the complex case of Baby Veronica, a heartbreaking adoption case that dealt with the Indian Child Welfare Act and reached the United States Supreme Court, listen to Adoptive Couple v. Baby Girl from Radiolab.

The First Noel: Finally, if you'd like to hear the happy sounds of two adopted children from the Democratic Republic of Congo experiencing their first Christmas season in the United States, listen to The First Noel from episode 576: Say Yes to Christmas from This American Life.


Does Your Company Offer Adoption Assistance Benefits?

For many people who dream of adopting a child, the high cost of finalizing an adoption can seem like an insurmountable hurdle. One solution to the high cost of most infant adoptions is to consider adopting a child in foster care, which can generally be done at low to no cost to the adoptive family. However, for those who decide that a non-foster domestic or international adoption is right for them, one potential way that the cost of adoption may be partially offset is through financial adoption assistance benefits provided by some employers.

The Dave Thomas Foundation for Adoption reports that according to a survey conducted annually by Aon Hewitt, major U.S. employers offering adoption assistance benefits have increased from 12 percent to 48 percent over the past 25 years. Employers offering adoption assistance benefits commonly provide reimbursement ranging from $1,000 to $15,000 or more. Some employers reimburse a percentage of adoption expenses up to a maximum benefit amount, while others pay a lump sum amount. In Oregon, large regional employer Nike, Inc. offers eligible employees up to $5,000 of reimbursement for adoption-related costs, while another major Oregon employer, Intel, announced in 2015 that their employee adoption benefits have increased from $5,000 to $15,000

Prospective adoptive parents are encouraged to check with their employers’ benefits departments to determine if they are eligible for adoption assistance. While adoption assistance benefits are becoming more widespread amongst large American employers, they are by no means universal. Employees who are not currently eligible for adoption assistance benefits may wish to ask their employers to consider adding or expanding their adoption assistance benefits to employees. The Dave Thomas Foundation for Adoption offers an Adoption-Friendly Workplace Toolkit that employees may use to prepare adoption benefits proposals for their employers. The toolkit includes the following helpful resources:

  • Adoption Benefits fact sheet
  • Adoption benefits tax summary
  • Frequently asked questions
  • Sample adoption benefits financial reimbursement form
  • Sample adoption benefits new release
  • Sample adoption benefits policy
  • Sample adoption benefits proposal


Last Same-Sex Adoption Ban in U.S. Struck Down by Federal Judge

Various news outlets have reported that the U.S. District Court for the Southern District of Mississippi has struck down the last remaining state law ban on adoption by same-sex couples. The Mississippi state law, which was enacted in 2000, succinctly stated, "Adoption by couples of the same gender is prohibited." The lawsuit was filed by four lesbian couples in 2015. The Court's decision means that it is now legal for same-sex couples in all states to adopt children.

NPR's coverage of the decision can be read here.  

More information on our adoption practice can be found here


We would like to welcome you to our adoption law blog. If you would like to see a specific adoption topic covered, please let us know.  And if you would like to sign up to receive notification of our blog posts, please subscribe here and we will send you updates.   

Thank you for joining us!

Best regards,

Amanda K. Anderson & Jennifer P. Ballard