As many people know, open adoption contracts aren't enforceable in most states. Here in Ohio where we adopted our daughter, the law states that all expectant parents and prospective adoptive parents need to be given the opportunity to create an openness agreement but they also need to be told that the agreement will not be legally enforceable. 

Other states do have legal agreements but what, exactly, does this mean? To find out I spoke with Denise St. Clair, the executive director of the National Center for Adoption Law and Policy.

St. Clair explained that few states actually provide for enforcibility "because adoption terminates parental rights." In other words, because adoption effectively eliminates the relationship between first parent and child, most judges are loathe to force the legally recognized adoptive parents to parent in a way they don't want to.

What this means is that expectant parents considering adoption plans and birth parents living them must understand that even in states where openness is theoretically legally enforced, the contracts actually do very little to protect visitation or contact agreements. Says St. Clair, "We're trying to really educate stake holders as to why there are circumstances when you'd want enforceability."

So does this mean the contracts are useless? Well, not necessarily. Open adoption agreements are a step in the right direction.

1. They force expectant and potential adoptive parents to sit down and really consider their values about openness. It means they need to talk with each other about what they think might work and work concretely to build a contract that will best serve the children in question. 
2. They afford opportunity to take a case to court and have it considered. (Just because a first parent hasn't won yet doesn't mean someone won't win eventually.)
3. They create a place to start discussion as the families grow and change, giving parents on both sides the chance to mediate with some structure.
4. Agreements also hold parents responsible because the agreement exists in black and white, a matter of record that kids will likely have access to at some point.

Currently the Law Center is working on a comprehensive chart of open adoption laws across the United States. When the chart is completed and available on their site, we'll be sure to link to it and include it in our resource list. Meanwhile to keep track of legal news related to adoption -- open and not -- you can subscribe to the Law Center's Weekly News Summary and Weekly Case Summary.