I would like to know, is there a law indicating that you are forbidden to give the birthmother a gift of some sort after the adoption has taken place and the surrenders have been signed? I was informed that under no circumstances can I EVER give anything to her, whether its worth is 5 cents to indefinite amount. If this is the truth could you please send me the law stating just that. I'm in Massachusetts and the birthmother is also.

Note: Because this is a specific legal question, we contacted Marla Allisan JD, LICSW, a licensed Massachusetts attorney and the Director of Full Circle Adoptions in Northampton, MA for the answer. Her response is:

You have been given good advice and it is advice aimed at keeping your adoption safe. My advice is that you follow that advice strictly. I can explain why:

The two parts to "why" are the law and the explanation for the purpose of the law.

The law: The section of the Massachusetts Code of Regulations 102 CMR 5. 09 (3) "Financial Assistance" (a)-(j) sets out the dollar limit of pregnancy related living expenses that an agency ("licensee" in the regulations) can provide for a birthmother who is delivering her child in Massachusetts. The regulation also sets out the time period and the types of expenses that can be covered. The regulation expressly states that "All other payments by the licensee to or on behalf of birthparents are prohibited under 102 CMR 5.00." This means that an adoptive family can not give anything directly at all to a birthmother and the agency can't give anything to a birthmother in Massachusetts beyond the carefully delineated birthparent living expenses, even after placement.

As an example, our agency had a family who was interested in providing some modest assistance to a birthmother who wished to continue her schooling at a community college following the birth of her child. The licensors (who interpret the regulations for the agencies) said that, as good-spirited as the intention was, this was not allowable.

The reason why your advisor told you that the value of what you would wish to give makes no difference, has to do with the legal principle of "consideration". Elements of a contract include something offered in "consideration" for something else. So, when folks get engaged, the ring is the legal "consideration" that is offered/exchanged. The legal principle goes further to say that the value of the "consideration" will not be judged i.e. whether the ring be made of tin or gold, doesn't matter. Likewise, if you gave a small gift to a birthmother, it might be small to you but very large and meaningful in her life experience. The value can not be judged as a condition for whether a deal was made; if something was given (of any value) that satisfies that element of a contract.

In the field of adoption, contracts involving plans for children are considered "void as against public policy" and surrenders are supposed to be absolutely freely given, with no pressure of any kind. So one can never make a "deal", promise anything after placement or give any gift, however small, because this could be experienced as pressure by the birthparent and could be construed as "consideration" for an illegal contract involving a child.

All of this flows against your human and good spirited impulse to give back to the birthmother who has given you the finest gift in your life, a child and the blessed experience of parenting. What can help is if the clinician working with the birthmother explains these principles in an understandable way to the birthmother. You might be surprised that some birthparents feel better about their own decision knowing that nothing else was involved and that everyone wanted her decision to be so free and voluntary that they withheld doing something that they would have ordinarily loved to do, that everyone wanted, that much, for the adoption to be safe. If a social worker can explain, with caring and compassion, to the birthmother that the adoptive family isn't allowed to give a present, then it is less likely that she will think they didn't give her something out of a lack of caring.

Having said this, you will hear some variation in practices around the country. I acknowledge different practices elsewhere not to suggest that you should do anything differently in Massachusetts, but to explain, all the more, why you should strictly follow Massachusetts regulations. This state has expressly decided not to modify it's regulations and so, for the safety of your adoption, you should give nothing of any value, during or following an adoptive process. The variations elsewhere include:

Some states are looser in their regulations/laws and accepted
practices with regard to small presents. One mid-west state, for example, has a small dollar limit ($50) on the cumulative amount an adoptive family can spend if they take a birthfamily to dinner or give a small present, during the adoption process. That was their way to harmonize the wish not to do anything that could be seen as pressure but also to acknowledge the simple kindness.

As a matter of practice, it is not unusual for adoptive parents in some other states to give a photo album to birthparents as a confirmation of their commitment to send photos and letters. Likewise, giving gifts to her other children may be a human and generous impulse, but in safe adoption practice, one should not do that.

You'd never want her to be able to argue that her circumstances were so modest that she couldn't buy her child a toy and that meant so much to the child and to her that she felt beholden to the adoptive family and didn't feel she could back out. Even if this seems like an unlikely scenario, you don't want to ever take the chance.