The following information is general in nature and should not be construed as legal advice.

Different Types of Adoptions

A private adoption (or independent adoption) is one where the “match” between adoptive parent(s) and birth parent(s) is made without the assistance of an adoption agency. For example, a coworker has introduced you to a friend whose daughter is pregnant and the young woman selects you as her adoptive family. My firm can help you with a private adoption. As with all adoptions in the Kansas City area, adoption law regarding private adoptions varies slightly depending on whether you live in Missouri or Kansas.

One of the first steps we take is finding an attorney to represent the birth parent(s) of the child. This attorney will advise the birth parent(s) about the adoption process and the legal effect of the paperwork they will be asked to sign. No sooner than twelve hours after the child is born (under Kansas adoption law; under Missouri adoption law, the time period is forty-eight hours), the birth parent will sign a consent to adoption. On your behalf, my office will prepare and file a petition for adoption, along with the consent signed by the birth parent.

If the adoption occurs in Kansas, I will obtain an order of temporary custody and deliver it to the hospital where the child was born, allowing you to leave the hospital with the child. By Kansas adoption law, the adoption must be finalized from 30 to 60 days after the case is filed. Generally, you go to court just once, to finalize the adoption.

Missouri adoption law requires that adoptive parents have custody of a child for at least 6 months before the adoption may be finalized. A court appearance is required to obtain temporary custody. At this court appearance, the judge will review your home study and listen to your answers to the questions I ask you about how your match was made, your commitment to child, etc. After 6 months have passed, we will return to court to finalize the adoption.

Kansas City area adoptive families can take advantage of a special Kansas adoption law that permits agency adoptions. An “agency adoption” is one where an agency (rather than a biological parent) has the authority to consent to adoption. It works like this: Birth parent(s) execute a document called a relinquishment of minor child to agency, which immediately transfers their parental rights to the adoption agency. The agency can then discharge the child from the hospital and place him or her with you. No court order of temporary custody (as under the independent or “private” procedure under Kansas adoption law) is needed, which results in savings of time and money for you. An agency representative will later sign a written consent to the adoption. The agency adoption procedure available under Kansas adoption law is one of the most streamlined adoption procedures nationwide. Unfortunately, there is no counterpart to agency adoptions under Missouri adoption law.

My firm can help you finalize your agency adoption. To ask questions or to schedule an appointment, call (913) 671-8008 or write kwklawfirm@aol.com.

When a single parent remarries, a new family is made. Sometimes the step-parent will want to adopt the child of his or her spouse. A step-parent adoption creates a new parent-child relationship and irrevocably terminates the parental rights of the non-spouse biological parent. In the Kansas City area, adoption law regarding step-parent adoptions varies depending upon whether you live Kansas or Missouri.

Regardless of where you live, if the child’s other biological parent will sign a written consent to the step-parent adoption, the case could be finalized fairly quickly. A home study, a written report about you and your home prepared by a social worker, is not required under Kansas adoption law. Under Missouri adoption law, the home study waiver is not automatic. If the non-spouse biological parent consents to the adoption, the requirement of a home study may be waived by the court. A motion is filed with the court to make this request. In one metro country, it is rare for the home study to be waived when the child is under 12.

Even if the other biological parent opposes the adoption, his or her parental rights can be terminated involuntarily. Under Kansas adoption law, the rights of a non-consenting step-parent may be terminated if he or she has fiailed to meet his or her parental responsibilities (by paying support and maintaining a relationship with the child) for the two years immediately preceding the date of filing of the adoption petition. However, this rule applies only when the non-consenting parent was married to or attempted to marry the biological parent who wants their new spouse to adopt. Under a 2012 Kansas adoption law case, C.A.T., B.T.M. and E.A.K.M., if the biological parent was never married to the non-consenting parent, a much broader set of grounds to terminate that parent’s rights to the child is available. In these situations, parental rights may be terminated for failure to support the mother during pregnancy, failure to support or communicate with the child after the child’s birth, abandonment of the child and/or mother or rape, in addition to the failure to assume parental responsibilities. This is a significant clarification of Kansas adoption law.

Missouri adoption law provides that the parental rights of a non-consenting biological parent may be terminated if he or she has abandoned and neglected the child for a continuous period of six months immediately preceding the date the adoption petition was filed.

If you don’t know where the other biological parent is, a private investigator will be hired to attempt to locate them. If they can’t be located, notice to them of the adoption will be published in a legal notices newspaper. This is a requirement under both Kansas and Missouri adoption law. Also, in Kansas, an attorney will be appointed to represent their interests. In general, this attorney will attempt to locate the missing parent and make a report to the court of his efforts and results.

For a variety of reasons, more and more grandparents are raising their grandchildren. It is also becoming more commonplace for grandparents to create a new family by adopting their grandchildren. If the biological parents of the child will consent to the adoption or if their parental rights have been previously terminated, the adoption could be finalized fairly quickly.

If a child’s biological parent will not consent to the adoption, you will file a petition asking the Court to terminate his or her parental rights. Generally, the petition alleges that the biological parent has not provided the child with financial support or shown the child love and affection. When appropriate, the petition may also allege that the biological parent is unfit due to substance abuse, physical or sexual abuse of the child and other, similar problems.

Under Kansas adoption law, if the mother or the father of the child cannot be found or if the father is also unknown, a lawyer will be appointed to represent his or her interests. In general, this lawyer will attempt to locate the missing biological parent and make a report of the results of the search to the Court. My office would also hire a private investigator to attempt to locate a missing biological parent. If the parent cannot be found, he or she will receive notice of the adoption by publication in a newspaper devoted to legal notices.

Also, under Kansas adoption law, a home study may not be necessary in a grandparent adoption. A home study is written report about you and your home prepared by a social worker that can cost from several hundred dollars to a thousand dollars or more (see more information under What kind of paperwork is required to start an adoption case?). Under Kansas adoption law, you can file a motion to ask the Court to waive the requirement of the home study.

Under Missouri adoption law, a lawyer is not appointed to represent the interests of an unknown or missing parent. Also, the court does not have the discretion to waive the requirement of a home study.

You might be matched in your adoption with a birth mother who lives outside of the Kansas City metropolitan area, in a state other than Kansas or Missouri. Adoption law in Kansas and Missouri allows you to finalize your adoption case in the state where you live provided that this is not prohibited by adoption law in the state where the birth mother resides. The best first step is to have your local attorney contact an attorney in the state where the birth mother lives to inquire about the other state’s procedure.

Under Kansas adoption law, the birth mother may sign Kansas paperwork consenting to the adoption or comparable paperwork normally used in her home state. The parental rights of the birth mother (and birth father) would be terminated by the Kansas final decree of adoption. Alternatively, adoption law in some states allows the parental rights of the biological parents to be terminated there. Those documents would be filed as part of your Kansas adoption.

Under Missouri adoption law, although the statute does not expressly allow use of out of state documents, it can be done. However, because Missouri adoptions take so much longer than Kansas adoptions (over 6 months as compared with 30 to 60 days), adopting parents sometimes choose to finalize their adoption in the home state of the biological mother.

Missouri and Kansas adoption laws take different approaches to readoption and recognition of foreign adoptions. Kansas adoption law is generally much more streamlined when compared to Missouri adoption law on recognition of foreign adoptions.

As background, you need to know about two different types of visas by which children are admitted to the United States from foreign countries. Both are “IR” visas. IR stands for “immediate relative”, which is an immigration status. In general, an IR3 visa indicates that the adoptive parent(s) saw the child before the child was adopted overseas. The child is granted automatic U.S. citizenship if he or she enters under an IR3 visa.

An IR4 visa indicated that the child was not seen by the adoptive parent(s) before the overseas adoption was finalized or that the child was placed in the guardianship or other legal custody of the prospective adoptive parent(s) in the foreign country. The child receives a Permanent Resident Card (a “Green Card”) and additional steps are required before the child becomes a U.S. citizen.

The visas are issued under federal law. Missouri adoption law and Kansas adoption law do not govern immigration issues, except as to how placements that began overseas are finalized or recognized (as the case may be) in the United States.

1. Missouri

Whether you need to “re-adopt” when you return with your child to Missouri depends upon the child’s immigration status. Under Missouri adoption law, if both parents had personal contact with the child before the foreign adoption was finalized, your child will enter the U.S. on an IR3 Visa and no further legal proceedings are necessary. You will file a simple form available from the Missouri Department of Health and Senior Services to obtain a birth certificate issued by the state of Missouri.

If your foreign adoption was finalized without both adoptive parents having first seen the child, your child will enter the U.S. on an IR4 Visa. Although you can still obtain a Missouri birth certificate using the same form mentioned above, Missouri adoption law requires you to file a petition for the recognition of the foreign adoption in order to get citizenship. Also, the IRS has said that a family cannot take the federal tax credit for a child until such a child is “re-adopted” in his or her home state, so it’s important to get the Missouri procedure completed as soon as possible.

The filing fee is about $250. Attorney’s fees will vary depending upon whether a court appearance is required. The need for a court appearance varies depending upon the Missouri county where the petition is filed.

2. Kansas

Kansas adoption law on foreign adoptions can make the process “do it yourself”. In Kansas, certified copies of the foreign adoption documents are filed with the clerk of the court in your county and Kansas automatically recognizes the foreign adoption. However, no court order or decree is issued. You may change your child’s name by filling out a special form for this purpose. In Johnson County, Kansas, the court trustee can provide you with this form. You may then request an adoption certificate from the vital records office in Topeka. You can do all of this without hiring an attorney.

A warning: If the child entered the country on an IR4 visa, this procedure may or may not work. The USCIS (formerly the INS) can waive the re-adoption requirement when a state has a law (like that in Kansas) automatically recognizing foreign adoptions. However, it appears that the USCIS will sometimes demand an order or decree of re-adoption or recognition of the foreign adoption before issuing a citizenship certificate. The best practice for citizenship purposes is to file a re-adoption case and request a decree/order of re-adoption. The re-adoption might also protect inheritance rights. Any name change is done as part of the re-adoption case. The total cost is about $500, including the filing fee.

General Questions About Adoption

In general, the following documents are filed to begin an adoption case under Kansas or Missouri adoption law:

  • Petition for Adoption – To formally ask the judge to allow you to adopt the child.
  • Consent to Adoption – The consent of parent or the State, in lieu of the parent, is usually required. Both Missouri adoption law and Kansas adoption law require specific, statutorily prescribed forms. Additionally, both Missouri and Kansas adoption law allows for a “specific” consent, for example, a consent form whereby a birth parent can designate the person(s) he or she wants to adopt the child. Caveat: Under Missouri adoption law, specific consent forms are not accepted in all Missouri counties.
  • Home Study – To show the judge that you are suitable parents. Both Missouri and Kansas adoption law require a special written report, usually referred to as a home study, about the adopting family. The home study contains biographical and financial information about the adopting family, his/her/their home as well as clearance checks from child abuse and criminal record registries.
  • Financial Statement – To prove that no money was paid, especially to birth parents, other than for bona fide expenses.
  • Genetic & Medical History – To show the Court that you are aware of any medical or psychological challenges.
Under Kansas adoption law, the final hearing on your Petition must be held within 30-60 days of filing your Petition. It’s usually held about 45 days after the filing date. Kansas adoption law allows the judge to continue the hearing beyond the 60 mark for a good reason.

Under Missouri adoption law, if the child is coming to your home for the first time, you will attend two separate hearings. At the first hearing, you will be awarded “temporary” custody of the child. Missouri adoption law requires that you have “lawful and actual” custody of the child for six months before an adoption may be finalized. After you have had custody for six months, you will return to court for your final hearing. At that time, the adoption is finalized, assuming that the birth father is not contesting the adoption.

Under Missouri adoption law, lawful and actual custody does not mean that you must have a court order from a Missouri court. Missouri adoption law recognizes temporary custody orders from other states. Missouri adoption law also recognizes a placement by an adoption agency with an adopting family after a birth mother has “relinquished” her parental rights to that agency.

Under both Kansas and Missouri adoption law, a social worker will visit your home to interview you about the placement. A report(s) will be filed with the court.

Under Missouri adoption law, if an identified birth father (one who is not allegedly “unknown”) has not consented to the adoption, the adoption petition will be amended at least twice before the case is finalized. The first amendment will occur after the child is 60 days old, to claim that the father has “abandoned” the child. The second amended petition will be filed after the child is 6 months old and will allege that the birth father has also “neglected” the child.

Under both Missouri and Kansas adoption law, the birth father is entitled to notice of the final hearing. Under Kansas adoption law, the notice itself is a one page document that informs the father that an adoption has been filed and that if he has any objection to the adoption it must be filed on (or before) the date of the final hearing. The notice is usually sent by certified mail, but sometimes served by a process server. Missouri adoption law requires that a summons and a copy of the adoption petition (redacted, to remove identifying information about the adopting family) be personally served on the father. He has 30 days from the date of service to file a response.

A suit, dress or nice casual clothing. Bring a camera for a picture on this very special day!
If your case is uncontested, you will be asked approximately 15-20 questions that you may answer with either yes or no. Adoption proceedings are very informal, so you will probably testify from a table, rather than the witness stand.
You should receive it on the day of the final hearing.
Under both Kansas and Missouri adoption law, a report of adoption is sent to the state capital for processing. A birth certificate will be sent to you or your attorney’s office within about 45-60 days.
Once you have the Decree and birth certificate, you should take them both to the Social Security office nearest you. A complete listing is available in the blue pages of the telephone directory.

It is possible to get a social security number even before your adoption is finalized.

If your child already has a social security number, I recommend that you change it to avoid possible identity theft or credit fraud.

Under Kansas adoption law, a child 18 years or older may enlist the assistance of the state to help them find their natural parents. The same is true under Missouri adoption law, except that the consent of the adoptive parents is required.
In the Kansas City area, the law regarding adoptions and birth certificates is similar on both sides of the state line, but the procedure varies.

In Missouri, a Certificate of Decree of Adoption form is filed along with the other paperwork at the start of your case. When the adoption is complete, the judge signs the form and the clerk forwards it to Jefferson City for processing, which will take a few months.

In Kansas, a Report of Adoption form is submitted to the judge along with the Decree of Adoption at the hearing to finalize your adoption. It is forwarded to Topeka for processing. In approximately 30-45 days, you will receive a proof to review, sign and return. The final birth certificate will be mailed to you shortly thereafter.

The new birth certificate will replace any birth certificate previously issued for the child.

A caveat: The new birth certificate must be issued by the state in which the child was born. Thus, if you adopted a child that was born in Ohio in Kansas, Ohio will issue the new birth certificate. The state of Kansas will forward the Report of Adoption to Ohio for processing. This extra step will delay your receipt of the new birth certificate.

In the Kansas City area, adoption law concerning birth parents differs between Kansas and Missouri. One key difference between Kansas adoption law and Missouri adoption law is the amount of time that must pass before a birth parent can sign paperwork consenting to an adoption. Under Kansas adoption law, a birth parent must wait at least 12 hours before signing, while under Missouri adoption law the waiting period in 48 hours.

I’m regularly asked whether a biological parent has an automatic right to withdraw his or her consent if done so within a certain amount of time after the signing of the consent. Although this may be true in other states, Kansas adoption law does not provide such a right. Missouri adoption law used to afford a limited right in this regard, but the law has changed.

Until August, 2013, under Missouri adoption law, a written consent to adoption was final and irrevocable only when accepted and approved by a judge. Sometimes a few days would pass from the time a birth parent signed the consent until it was presented to a judge. During this time period, the birth parent could unconditionally withdraw his or her consent.

In August, 2013, Missouri adoption law changed. Now, a birth parent’s consent to adoption is irrevocable immediately, as it is under Kansas adoption law. It does not require a judge’s approval.

Under Missouri adoption law, a birth parent may rescind a consent only if he or she can prove by clear and convincing evidence that it was not given freely and voluntarily. An action to rescind a consent under Missouri adoption law must be brought before the final decree of adoption is entered, which is generally six to seven months after the child is born.

Under Kansas adoption law, a consent to adoption is also effective immediately. It may be revoked only if the biological parent can show it was not given voluntarily. An action to revoke a consent under Kansas adoption law must be brought before the entry of the final decree of adoption, which is generally within 30-60 days after the date the case is filed. However, in some cases, the decree may be entered as soon as a few days after the birth of the child.

A consent form is only used in a private adoption. This is true under both Kansas and Missouri adoption law. In contrast, in an agency adoption (where a licensed adoption agency is authorized to accept the custody and control of a child from a biological parent, which is allowed under Kansas but not Missouri adoption law), a form called a “relinquishment” is used. The relinquishment is a two part transaction. After the biological parent signs the relinquishment form, a representative of the agency must also sign to indicate its acceptance of the custody of the child. There is case law that indicates that a birth parent could revoke the relinquishment before the agency executes the written acceptance. Most agencies sign the acceptance right alongside with the execution of the relinquishment or shortly thereafter.

In Kansas City area adoptions, birth parents sometimes report some Native American ancestry. A federal law, The Indian Child Welfare Act (“ICWA”), must be considered in every adoption of an American born child. ICWA applies when the child to be adopted is an “Indian child”. An Indian child is one who is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and the child of a member. Each tribe has its own criteria to determine whether a child is a member or eligible to be a member. Because ICWA is a federal law, it is the law in both Missouri and Kansas adoptions.

If either biological parent reports Native American ancestry, your attorney or adoption agency might send a letter to the tribe asking whether the child to be adopted is an Indian child. Most of the time, the answer will be no. If the answer if yes, the ICWA rules apply. They are too complicated to address here, but include special protections for a birth parent who wants to consent to the adoption of an Indian child. The consent cannot be given until ten days after the child is born, and must be given before a judge and may be revoked before the adoption is final. ICWA also provides for notice to the applicable Indian tribe in involuntary termination cases, certain placement preferences and of the tribe’s right to intervene in the adoption.

If a biological parent reports Native American ancestry, don’t panic. In most Kansas City area adoptions, the reported Native American heritage cannot be substantiated. The law says that in cases where the Native American ancestry is speculative, ICWA does not apply. This is case law from other states and presumably would be relied upon as adoption law in either Kansas or Missouri.

The Kansas Supreme Court issued an important Kansas adoption law decision in 2012 in T.S.W. T.S.W. involves the Indian Child Welfare Act (“ICWA”). If the child being adopted in an “Indian child” (a statutory term), ICWA applies. ICWA contains placement preferences that must be followed unless good cause exists to overcome them. In general, ICWA favors placement of an Indian child with an Indian family.

In T.S.W., the lower court (the District Court) found that the natural mother’s desires to have her child placed with a non-Indian family was sufficient good cause. The Supreme Court disagreed, stating that something more was required. The Supreme Court found that a mother’s request for confidentiality or anonymity combined with consideration of the best interests of the child might be sufficient to overcome ICWA’s placement preference. The case is important Kansas adoption law in all cases involving an Indian child.

The federal adoption tax credit is found at IRC 23 (a) (3). It appears that the amount of the credit for 2016 will be $13,460. The amount of the credit increases annually to keep up with inflation.

The amount of the credit allowed will begin to decrease when annual household income is greater than $201,920 and will phase out entirely when annual income reaches $241,920. These amounts will also be adjusted for inflation.

If you adopt a special needs child, you will receive the full amount of the credit, regardless of how much you spent on the adoption. Also, some accountants believe that if your employer has a qualified adoption assistance program that pays you any amount, you may exclude the amount of the tax credit from your gross income.

Use IRS Form 8839 to claim the federal credit. If you won’t have a social security number in time to claim the child on your tax return, you may be able to obtain an Adoption Tax Identification Number by filing the appropriate form with the IRS (W-7 or W-7A).

In the Kansas City area, the law for state adoption tax credits varies between Missouri and Kansas. Under Kansas adoption law, the credit is available for any adoption that qualifies for the federal credit. An additional credit is available is the adoption of a special needs child or a child in the custody of SRS. Use Form K-47 to claim the state adoption tax credit. See the Kansas Department of Revenue web site for more details.

Under Missouri adoption law, the state adoption tax credit is limited to adoptions of special needs children. The credit is claimed on Form ATC. State residency is required in both Missouri and Kansas to claim the state tax credit.

The adoption tax credit is not available in step-parent adoptions. It is, however, generally available in other intra-family adoptions. Finally, the adoption tax credit is available for “failed” adoptions.

I recommend that you utilize the services of a tax professional when claiming the adoption tax credit(s).

At or shortly after your final adoption hearing, you should receive a certified copy of your Decree of Adoption. The Decree will change your child’s name to the name you have chosen. In a few weeks (or months, depending on your state of residence), you will receive a birth certificate. Take the certified copy of your Decree of Adoption along with your child’s new birth certificate to the social security office nearest you.

If you want or need to file your income taxes before you have your child’s permanent social security number, you may obtain a provisional number by completing Internal Revenue Service Form W-7-A.

Because Kansas City straddles the state line between Kansas and Missouri, some adoptions involve a law called the Interstate Compact on the Placement of Children. If the child to be adopted will move from the child’s state of birth to another state as part of the adoption, the Interstate Compact on the Placement of Children may be relevant. For example, if adoptive parents live in Missouri, but the adoption will take place in Kansas, you must comply with the “ICPC”.

To initiate the process, the ICPC “100A” form is sent from the child’s state of birth (the “sending state”) to the “receiving state” (where the adoption will be finalized). A variety of court documents and other forms must accompany the 100A Each state has its own list of the documents required and it is often important to include the items on both lists.

You should plan on spending up to several days (or more) in the sending state while you wait for ICPC approval. Make sure that your attorney is experienced with the ICPC. It’s an easy part of adoption law if you provide the persons who administer the state’s compact what they want. However, if the packet provided is incomplete, you will be waiting an unnecessarily long time.

The ICPC is adoption law in both Kansas and Missouri.

Compliance with the ICPC is critical. Both Missouri and Kansas adoption law contains court cases stating that failure to comply provides a basis for a consenting birth parent to withdraw his or her consent to the adoption.

Missouri and Kansas adoption law concerning payment of living expenses to birth parents has one over-arching concern: The expenses paid must be reasonably related to the pregnancy and/or adoption. Expenses paid usually consist of medical bills, rent, utilities, food, sundries and clothing. However, depending upon the circumstances of the birth parent, the type of expenses paid will vary. For example, some birth parents require assistance with transportation and the adopting family will pay for cab fare or a gas card.

Under Kansas adoption law, payment of living expenses is governed by Kansas statute 59-2121 which limits payments to “reasonable living expenses of the mother which are incurred during or as a result of the pregnancy”.

Under Missouri adoption law, living expense payments are governed by Missouri statute 453.075. Expenses paid must be “in connection with the placement or adoption”. Jackson County has a special administrative order that limits adoption expenses to $600 per month for three months without permission from the judge to exceed these maximums.

Living expense payments are nearly always made directly to the third party such as a landlord or utility provider. Assistance with food and gasoline is provided through gift cards. Normally, the adoptive family’s attorney pays these expenses so that an accurate accounting of all money paid may be submitted to the court. Rarely is cash given directly to the birth parent.

There are many excellent adoption agencies and social workers in the Kansas City area. Some of them are listed here:

Adoption & Beyond

Adoption and Fertility Resources
Adoption and Counseling Services For Families
American Adoptions

Kansas Children’s Services League

Kansas City adoption law changes when the Kansas or Missouri Court of Appeals or Supreme Court issues a new decision about adoption law. Some of the more important decisions under Kansas and Missouri adoption law are summarized below.

Kansas adoption law cases

Kansas adoption law is always changing. What follows is a summary of some of the more important recent cases.

Recently the Kansas Supreme Court drastically changed the Kansas adoption law regarding step-parent adoptions in Kansas. In the Matter of the Application to Adopt K.M.D. and K.N.E. dispenses with the “two column ledger approach”, Kansas law on step-parent adoptions for many years. The Kansas Supreme Court has adopted a “totality of the circumstances” analysis as Kansas law on step-parent adoptions.

Under the two column ledger approach the parental rights of a contesting birth father in a step-parent adoption could be terminated only if he had failed on the both the “love and affection” column on one side of the ledger and the support provided to the child on the other side of the ledger. In the Matter of the Application to Adopt K.M.D. and K.N.E changes Kansas adoption law replacing this comparatively stricter approach with more flexible totality of the test. Under the revised Kansas law for step-parent adoption, it appears a judge will have more discretion to terminate the birth parents parental rights if so inclined.

On July 8, 2011, the Kansas Court of Appeals released Baby Girl B. The case is another decision on Kansas adoption law that is favorable to the preservation of parental rights of birth fathers, reversing the decision of the District Court of Leavenworth County and removing an approximately an 18 month child from the custody of the adopting family. The holdings of Baby Girl B. apply not only to the specific factual situation of the case but more broadly to all Kansas adoption cases where termination of the parental rights of the birth father is an issue.

In Baby Girl B., birth mother told the birth father that she thought she might be pregnant in June or July, 2009. Mother and father remained in contact over the next several months but did not talk about the possible pregnancy. Mother claimed that in December, 2009, she told father she was definitely pregnant. Father testified that she again said she might be pregnant.

A blood test on January 13, 2010 confirmed the pregnancy. On February 3, 2010, baby was born. The birth mother relinquished to a Kansas adoption agency. The birth father refused to relinquish and trial was held on the adoptive family’s request to terminate his parental rights. The District Court terminated father’s rights for (i) his failure to support mother during the last six months of her pregnancy, (ii) because he had abandoned birth mother and (iii) because termination of his rights was in the best interests of the child.

The District Court relied heavily on birth father’s failure to try to learn whether mother was in fact pregnant. The court found as follows:

“What steps did [Curtis] avail himself of to determine whether [Racheal] was pregnant? Armed with the information [Racheal] might possibly be pregnant. [Curtis] with the chance to possibly verify for himself the pregnancy during his stay in Leavenworth from December 24-28, 2009, did nothing ….[Curtis] did not make the effort to find out, but simply sat back and said get a pregnancy test…[Curtis] did not avail himself of any of the opportunities to discover whether [Racheal] was pregnant and consequently his opportunity to assist [Racheal] with her pregnancy…[T]he Petitioners have proven by clear and convincing evidence that there is no reasonable cause for…[Curtis’] failure to avail himself of his opportunities to discover or verify the pregnancy.”

The Court of Appeals disagreed, finding that the District Court judge had improperly inserted the word “possible” into the statute that authorized termination of a birth father’s parental rights when “after having knowledge of the pregnancy, [he] failed without reasonable cause to provide support for the birth mother during the six months prior to the child’s birth”. The Court of Appeals also found that the District Court had improperly imposed upon the birth father a duty to investigate whether mother was actually pregnant. As noted above, the District Court had terminated the birth father’s rights on another ground, abandonment of the birth mother, but the Court of Appeals reversed on this ground as well. The Court of Appeals noted that it was mother, not father, who had terminated their relationship.

The Court of Appeals also noted the Kansas parental preference doctrine. Under this doctrine, a natural parent is presumed to be the best custodian for his or her child unless there is evidence of parental unfitness. This comment is significant because it appears to depart from previous Court of Appeals decisions on Kansas adoption law stating that the parental preference doctrine did not apply in adoption cases. Application of the doctrine in adoption cases seems to make it easier for contesting birth fathers to prevail.

Appellate court decisions will sometimes contain an agreeing opinion. The judge who writes the concurring opinion offers additional reasons in support of the main opinion. In Baby Girl B., the concurring opinion offers a different analysis of the statute authorizing termination of a birth father’s parental rights for non-support of the birth mother during the last six months of her pregnancy. Specifically, the opinion explored whether a father’s rights could be terminated for non-support during anything less than during the full last six months of the mother’s pregnancy. The author commented “I am not saying that K.S.A. 2009 Supp. 59-2136(h)(1)(D) is unconstitutional. Certain arbitrary time frames need to be drawn by the legislature in order to test parental fitness. Normally, 6 months is a sufficient amount of time for a father to act responsibly and provide support for the mother prior to the child’s birth. And it possibly would not offend my sense of justice to terminate a father’s parental rights if the evidence showed that he failed without reasonable cause to provide support for the mother after learning about the pregnancy 5 months, or even 4 months, prior to the child’s birth. Each case must be judged on its own facts. But as the date the father gains knowledge of the pregnancy gets closer and closer to the child’s birth, the sufficiency of the evidence to terminate his parental rights on this ground becomes less and less convincing.” I expect that this passage will be quoted in future decisions addressing this aspect of Kansas adoption law.

Baby Girl B. is consistent with recent decisions on contested adoptions from the Kansas Court of Appeals and the Kansas Supreme Court on Kansas adoption law. For the time being, these courts appear to be more protective of birth father rights. Unless the law and/or venue are favorable it seems it is best to take a conservative approach with contesting birth fathers.

More cases on Kansas adoption law

On October 29, 2010, the Kansas Supreme Court decided Baby Girl P. The case appears to drastically change what we thought we knew about Kansas adoption law on termination of birth father parental rights. Baby Girl P. makes three major changes:

  • It reduces the amount of support required from birth fathers, at least post-birth.
  • Mere offers of support from birth fathers may suffice (instead of actual support).
  • The parental preference doctrine applies in adoptions, which appears to establish almost a presumption that rights should remain intact absent very compelling evidence.

The case seems to deviate substantially from appellate court precedent we have all relied on for years. For example:

  • A birth father can’t just offer support, he must actually provide it.
  • Incidental support may be disregarded.
  • The parental preference doctrine does not apply in adoptions.

As background, Baby Girl P. was the product of an extramarital affair that lasted three to four months. During this time period, birth father met birth mother’s family members, went to church with them, knew where she lived and worked actually double dated with a friend of hers from work and a friend of his.

When she and her husband began discussing reconciliation, mother ended the relationship with birth father. Father claimed that a few weeks later, from out of blue, he received a text message from mother that she had miscarried. He did nothing to confirm whether or not the statement was true. The text message was allegedly sent in early March; Baby Girl P. was born in June, 2008.

Mother told the adoption agency that she did not know where father could be found and provided his first and last name, but added the suffix “son” to his surname. Petitioners located father in August with the help of a private investigator, who informed father of the birth of the child. Father retained an attorney, who filed a motion for visitation in the adoption case. The motion was denied due to lack of statutory authority in the adoption code for visitation.

Litigation continued until early January, 2009. From the time he learned of the child’s birth until the end of litigation, father had two visits with Baby Girl P. at the adoption agency. The sole items provided for her support were Christmas cards and some inexpensive gifts delivered at the second visit around Christmas. Also, in September, he delivered a letter to the agency offering support. No money or gifts were enclosed with the letter.

The district court judge terminated father’s rights for failing to support Baby Girl P. after she was born. The district court judge also found it significant that father had not investigated the truth of mother’s alleged text message and consequently lost his opportunity to demonstrate a commitment to parenting sooner. Father appealed, but the Kansas Court of Appeals affirmed the decision.

The termination of father’s rights by the district court (and affirmation by the Court of Appeals) seemed to be warranted under existing law for the following reasons:

  • Father had made only an offer of support, by letter dropped off at adoption agency.
  • No money was enclosed with this letter.
  • Father had a decent job and few expenses because he lived with mother.
  • Father had two visits with the child and provided only some incidental items.
  • Father filed a petition for review by the Kansas Supreme Court, which was granted. However, because of existing law, it was hoped that the Supreme Court would affirm. Those rules were as follows:
    • A birth father cannot simply offer support: he must put money where mouth is.
    • A father must part with some of his income or something of value to provide financial support.
    • What he provides must be of some significance, i.e., not incidental.
    • If there are problems in getting support to the mother or the child, he must be creative, e.g,, by opening a bank or college account.

The Supreme Court reversed both the Court of Appeals and the District Court and overturned the adoption. At the time of the decision, the child was nearly two and one-half years old.

The Court found that father had made offers of support and characterized his Christmas-time visit gifts as more than incidental. Offers of support have been rejected as relevant by previous case law. Further, in view of previous cases, the few items father provided to Baby Girl P. would not have been sufficient to preserve his parental rights. A legislative proposal to address such issues has been discussed.

The Court’s application of the parental preference doctrine was the focus of a motion for reconsideration filed by the adopting family. The motion noted that previous case law had held that the doctrine did not apply in adoption cases because the adoption code sufficiently protected a birth father’s constitutional rights. Now, the parental preference doctrine appears to give fathers a leg up in adoptions. Quoting from the motion: “From the enactment of the Kansas Adoption and Relinquishment Act, Kansas courts have carefully interpreted the Act to provide biological fathers every opportunity to preserve the parent-child relationship. His parental rights are his to lose, but only by serious shortcomings. Thus, applying the parental preference doctrine in adoptions goes one step too far, by tilting the analysis in favor of the biological father.“ The motion for reconsideration was denied.

Post-Baby Girl P., it seems likely that adoption attorneys, agencies and social workers may be reluctant to take a wait and see approach with a birth father whose intentions are unknown. In other words, it may be risky to rely upon his failure to provide support as a basis for termination of his parental rights. If he makes an offer of support or provides only an incidental amount, he may have a defense to a termination of parental rights action.

In re the Adoption of I.M. discusses second parent adoptions without saying whether they are allowed under Kansas law. The I.M. case challenged the Kansas adoption law (a statute) which states that other than in a step-parent adoption, the parental rights of a biological parent to an adoptee were terminated upon adoption. In other words, unless the biological parent was married to an adopting step-parent, under Kansas adoption law his or her parental rights were terminated when the child was adopted.

I.M. involved the proposed adoption of a former step-daughter. The step-daughter’s natural mother signed a written consent to adoption by her former husband, but specifically reserving her parental rights. The Shawnee County District Court denied the adoption, ruling that it did not have authority to hear such a case. The Kansas Court of Appeals agreed. Noting that adoption is a “creature of statute”, the appellate court found that Kansas adoption law did not allow the I.M.’s mother to retain her parental rights after adoption of I.M. by her ex-husband and was “not inclined to judicially create such authority”.

Toward the end of the opinion, the Court of Appeals mentions second parent adoptions. The discussion is well-placed, given that second parent adoptions involve the preservation of the parental rights of the consenting parent. The Court noted: “Courts that have recognized second-parent adoptions either do so by specific statutory authority or by broad judicial interpretation of existing statutes.”

The Court’s discussion about second parent adoption is not a “holding”. In other words, it is not a ruling on second parent adoptions and as such is not Kansas adoption law. However, the opinion might provide clues as to how the Court of Appeals might address an appeal of a second parent adoption. Of course, that begs the question who would appeal such a case?

The Indian Child Welfare Act and Kansas adoption law

The Kansas Supreme Court issued an important Kansas adoption law decision in 2012 in T.S.W. T.S.W. involves the Indian Child Welfare Act (“ICWA”). If the child being adopted in an “Indian child” (a statutory term), ICWA applies. ICWA contains placement preferences that must be followed unless good cause exists to overcome them. In general, ICWA favors placement of an Indian child with an Indian family.

In T.S.W., the lower court (the District Court) found that the natural mother’s desires to have her child placed with a non-Indian family was sufficient good cause. The Supreme Court disagreed, stating that something more was required. The Supreme Court found that a mother’s request for confidentiality or anonymity combined with consideration of the best interests of the child might be sufficient to overcome ICWA’s placement preference. The case is important Kansas adoption law in all cases involving an Indian child.

Missouri adoption law cases

Missouri adoption law is also in flux. I’ve summarized some of the more important cases below.

A case from 2011

Recently, the Missouri Supreme Court decided In Re The Adoption of C.M.B.R., a decision which made the front page of the Kansas City Star. The biological mother of the child was an illegal immigrant, incarcerated when the child was seven months old after a raid on the poultry processing plant where she worked. She was later sentenced to two years in prison for identify theft, after which time she was to be deported. At the time the decision was issued on January 25, 2011, the child was over four years old.

Because the adopting parents didn’t have the home study and post-placement reports required by Chapter 453 (the adoption code), the case was remanded back to the trial court. Failure to have the right type of home study was a big enough error to warrant reversal of the trial court’s decision to terminate mother’s rights. On remand (retrial), the court must consider the correct type of home study and then whether there’s enough evidence to terminate mother’s rights for abandonment and neglect.

In addition to grounds for termination under Chapter 453 (the adoption code), the adopting parents alleged grounds under Chapter 211 (the juvenile code). The Supreme Court held that when Chapter 211 grounds are alleged, the juvenile officer must be joined as a party and participate in the case.

Much of C.M.B.R. does not appear to have much general applicability beyond the specific facts of the case. Mother will probably lose on remand because the Supreme Court found that the evidence presented the first time around was sufficient to terminate her rights. Once the home study issue is cleaned up, the adopting parents will re-present their original evidence. However, it does appear that when allegations under Chapter 211 are contained within an adoption petition, the juvenile officer will be joined as a party to the case.

An older but important case

An older Missouri adoption law case, In Re Adoption of N.L.B.M.T. and S.T.,v. Lentz, involves the Missouri Putative Father Registry, enacted in 1988 at R.S.Mo. §192.016. The Putative Father Registry allows a man who believes he has fathered a child to put others on notice of his possible paternity of the child, thereby preserving his opportunity to assert his parental rights. Putative fathers use form VS-421 to register with the Registry; the form must be filed within fifteen (15) days of the child’s birth. Attorneys and other adoption professionals use the Request for Search of Putative Father Registry. There is a section at the bottom of the form for someone at the registry to indicate whether their records reflect a putative father. This processed form is then returned to the requesting attorney or adoption professional.

A Missouri statute states that an adoption may proceed without a putative father’s consent if he fails to timely file with Putative Father Registry. R.S.Mo.§453.030.3 provides that if a father does not file a notice of intent to claim paternity or an acknowledgment of paternity with the Putative Father Registry and file a paternity case within fifteen days of the child’s birth, his consent to the adoption is unnecessary.

With that background, we turn to what happened in Lentz. The birth father in Lentz was present at the hospital for the birth of the child on December 12, 2004. In fact, he participated in the child’s birth and stayed at the hospital until both mother and child were released. After release, he and mother placed the child in foster care for purposes of adoption. Subsequently, they jointly executed a reconsideration of their adoption plan. Birth father paid $300 for his one-half of the foster care costs.

The birth parents later renewed their adoption plan, placing the baby in the home of a Kansas City area couple. Father returned to his home in Columbia, Missouri. An adoption petition was filed by yet another couple and mother consented to the adoption. Although the adoption petition stated that father was “unknown”, because he and mother had remained in contact, birth father was aware of the adoption action. On March 2, 2005 father filed with the Missouri Putative Father Registry.

At trial, the evidence focused on birth father’s failure to register with the Putative Father Registry. Birth father’s rights were terminated because his consent to the adoption was deemed unnecessary due to not registering.

The Missouri Supreme Court found that even though father’s consent may have been unnecessary, he still had a right to present evidence as to his fitness as a parent. The Court also said the best interests of the child should be considered. This decision seems to remove the failure to file with the Putative Father Registry as a basis for termination of parental rights in Missouri adoptions.

The Lentz decision may be somewhat fact based. Unlike some birth fathers, the birth father in Lentz was involved and supportive. In fact, the Supreme Court even seemed to acknowledge that the decision would be applicable in no more than just a few cases. However, Lentz is the law in Missouri for now. We will need to wait for legislative action or another Missouri Supreme Court case to change it.

Missouri adoption law requires that the prospective adoptive child have his or her own attorney. This attorney is called a guardian ad litem (“GAL”). The GAL will review the court file to make sure all paperwork (including the adopting family’s home study) is in order and, in certain counties, actually visit the adopting family’s home. If age appropriate, the GAL will interview the child. The judge will ask the GAL for his or her recommendation as to whether the adoption should be granted.
Interstate adoptions are common in the Kansas City area and are authorized under both Kansas and Missouri adoption laws. Many of these cases involve the adoption of a Kansas child by a Missouri adoptive family (and conversely). Kansas adoption law is often perceived as more favorable, because under Kansas law, an adoption may be finalized in as few as 30 days after the date the adoption petition is filed. Adopting parents wonder if a Missouri resident birth mother may deliver her baby in Kansas so that the adoption case may proceed under Kansas law. The answer is no. Under Missouri adoption law, a baby born in Missouri must generally be adopted there.

Sometimes, however, the birth mother resides in one of the other 48 states. In these situations, the adoption will transpire in one of three ways:

  • The out of state birth parent will execute a consent to adoption authorized by the adoption law of Kansas or Missouri.
  • The out of state birth parent will execute a consent to adoption on their home state’s form, which are generally recognized as valid under Missouri and Kansas adoption law.
  • An order terminating the birth parents’ parental rights will be issued by a court in their home state and the order will be given full faith and credit in either Kansas or Missouri. This is per the United States Constitution and not Missouri or Kansas adoption law.

Assume, for example, that a Kansas family has been matched with a birth mother in North Carolina. With the advice of an attorney in her home state, the birth mother would sign a Kansas consent to adoption of minor child after the child is born. The birth mother will also sign a waiver of her right to proceed under the law of her home state and a consent to the use of Kansas adoption law. The adopting family, who would most likely have already traveled to the birth mother’s home state, would then return to Kansas with the child to finalize the adoption. Upon their return to Kansas, a petition for adoption would be filed and a court date set.

Before the adopting family may leave North Carolina with the child, full compliance with the Interstate Compact on the Placement of Children is required. The “ICPC” is adoption law in both Kansas and Missouri. The ICPC applies in most cases where children move between states for the purposes of adoption. The adopting family will be in North Carolina for a few days to a week (on the average) while the ICPC is processed. My office is very familiar with how to handle the ICPC and has the resources to locate a qualified adoption attorney in another state to handle the ICPC there.

The overwhelming majority of adoptions involve a minor child. However, both Kansas and Missouri adoption law allow one adult to adopt another. Under Kansas law, adult adoptions are governed by Kansas statutes 59-2139 thru 59-2142. Missouri adoption law does not have specific statutes dedicated to adult adoptions.

Adult adoptions are simpler and less expensive than adoptions of minor children under both Missouri and Kansas adoption law. For example, in most adoptions of children a special report prepared by a social worker called a home study is required. With adult adoptions a home study is unnecessary. Also, in adoptions of children, the child’s biological parents must consent to the adoption or their rights must be terminated for failure to assume parental responsibilities. There is no such requirement in adult adoptions under Kansas or Missouri adoption law. Missouri adoption law requires only the consent of the adult to be adopted. Under Kansas adoption law, the consents of the “adoptee” and the spouse of the adopting adult are required.

Adult adoptions involve much less paperwork than adoptions of children. Along with the consent(s), a simple petition for adult adoption is filed. Under Kansas adoption law, the biological parent(s) of the adult to be adopted may, but are not required to be, notified of the hearing to finalize the adult adoption. It’s up to the judge. They are, however, to receive a copy of the adult adoption decree (so that they know their child has a new parent(s)).

Under both Missouri and Kansas adoption law, upon finalization, the parental rights of the adoptive adult’s biological parents are terminated. There is an exception, however, under Missouri adoption law when the spouse of the of the adopting persons joins as a co-petitioner and his or her parental rights will not be terminated.

The primary reason for adult adoption is affinity; the parties involved simply want to legally formalize their already close relationship. For example, a step parent may adopt an adult child that he or she has helped to raise. Sometimes a birth parent a child they placed for adoption will reconnect and legally reestablish their relationship through adult adoption.

“Second parent adoption” is the adoption by one partner in a same sex couple of the other partner’s child. For example, sometimes one partner will have a child with the assistance of a surrogate or sperm donor. By virtue of his or her status as the biological parent of the child, that parent’s relationship with the child is established. Because the other partner lacks the same biological connection, he or she may want to establish a legal parent-child relationship through adoption. Second parent adoptions can be completed under the adoption law of both Kansas and Missouri.

Under Missouri adoption law, both partners will sign the adoption petition and be “co-petitioners” in the case. The non-biological partner/parent will request the court’s permission to adopt the child while the biological partner/parent joins in the petition to indicate his or her consent to the proposed adoption. A home study (a written report about the partners and their home environment) is generally required.

Missouri adoption law authorizes second parent adoptions. R.S.Mo.§453.090 is the relevant statute. However, not all counties allow second parent adoptions, so check with an attorney in the area familiar with how the local judge(s) interpret Missouri adoption law on this subject.

Kansas adoption law regarding second parent adoption is open to interpretation and some judges will allow it. Second parent adoption is rare in Kansas. See the discussion on the I.M. case, above, for more information on Kansas adoption law and second parent adoptions.

There are a variety of reasons for second parent adoptions, whether under Missouri or Kansas adoption law. Besides the establishment of a legal parent-child relationship, other motivating factors are affection, preservation of inheritance rights, health insurance coverage and entitlement to dependent benefits such as social security.

Like any other relationship, a same sex partnership may come to an end. When children are involved, the partners will continue to co-parent their children, often using a written co-parenting agreement. Until recently, Kansas law did not provide any guidance on whether such agreements could be relied upon in the event of a dispute. However, in February, 2013, the Kansas Supreme Court ruled that a co-parenting agreement between same sex partners was valid and enforceable. This is not Kansas adoption law per se, but the case is important for same sex partners who have completed a second parent adoption.

The terminology “embryo adoption” has been popularized in recent years. There are hundreds of thousands of “surplus” embryos in the United States. Although in vitro fertilization and surrogacy remain the preferred methods of reproductive technology, embryo adoption is increasingly utilized. One reason for this: embryo adoption is cheaper than IVF or traditional adoption.

Embryo adoption is actually a misnomer. Neither Kansas adoption law nor Missouri adoption law authorizes the adoption of an embryo. Thus, the more accurate description of the procedure is “embryo donation”. By written contract, the man and woman whose genetic contributions created the embryo agree to transfer its possession and control to another individual and/or couple. The embryo will then be transferred into a recipient’s uterus or that of a surrogate. The recipients of a donated embryo will adopt any resulting child. The Embryo Donation Contract signed by the parties will require the donors to execute written consents to the adoption of any child born from an implanted embryo.

Thus, “embryo adoption” is actually a two-step legal process. The first step is the execution of an embryo donation agreement transferring the “ownership” of the embryo(s) to the recipients. (The law is evolving as to whether an embryo is property or a person.) This step is most accurately described as “embryo donation”. Step two is an adoption proceeding to terminate the parental rights of the donors to the child or children born from the donation and to establish an irrefutable legal connection between the recipients and the child(ren). Thus, “embryo donation” is not an “embryo adoption”. The best practice after embryo donation is to complete an adoption of a child born of the embryo transfer procedure.

Under Kansas adoption law, a birth parent may sign one of two documents, a consent or a relinquishment. Kansas adoption law provides that a consent is irrevocable when signed unless the birth parent can prove that it was executed due to fraud, duress, mental impairment or similar grounds. Under Kansas adoption law, a relinquishment is also final when signed. The signing of a relinquishment also operates to immediately terminate the birth parent’s parental rights. Under Kansas adoption law neither a consent nor relinquishment may be signed by a birth parent until at least 12 hours have passed after the birth of the child.

Missouri adoption law is somewhat more protective of birth parents. Under Missouri adoption law, a birth parent’s consent is not irrevocable until it is accepted and approved by a judge. Between the time the consent is signed and approved by a judge, a birth parent may unconditionally revoke it. However, once it is accepted and approved by a judge, the consent becomes irrevocable and may be challenged later only for reasons such as fraud, mental impairment, etc. Under Missouri adoption law, a birth parent must wait at least 48 hours from the birth of the child to sign the consent. Missouri adoption law does not allow a birth parent to sign a relinquishment.

In Kansas domestic adoptions, all American birth fathers, even unknown birth fathers, have parental rights to a child placed for adoption by the biological mother. This is not the case in certain foreign countries. For example, in South Korea, an unwed biological father is required to register with the Family Census Register. Similarly, in Japan, an unwed man must marry the biological mother of a child within two weeks of the child’s date of birth or he cannot be listed under the family census of the child.

The law of both countries says that if a biological father fails to take these steps, his parental rights are forfeited. Because of this status, it is unnecessary to search for this man and to prove grounds available under Kansas adoption law for termination of his parental rights. The best practice, however, is to publish notice of the adoption to him. Kansas adoption law says that publication notice to an unknown biological father should be made in the county where the case in pending. Publication overseas is unnecessary and, in some countries, offensive. In Japan, it is considered “impolite” to publish notice of an adoption. Politeness is of utmost importance in Japanese culture.

Kansas adoption law also requires that an attorney be appointed to represent an unknown father. In these circumstances, however, the attorney’s role will be limited.

Having a child through an assisted reproductive technology (“ART”) such as egg donation, surrogacy and embryo adoption is a unique and rewarding journey. ART law is a key part of the process. Every ART arrangement will require at least one contract, and at least one court case will follow the birth of the child. Which contract(s) and court action(s) you need will depend upon which ART services you utilize. Every ART contract will contain a “warning” that this area of the law is new and developing. Neither Missouri or Kansas law have laws that directly address egg donation and/or surrogacy.

The simplest situation is when the egg from a donor is used to conceive a child. The egg is fertilized in vitro with the sperm of the “intended father”, and the resulting embryo(s) transferred into the uterus of the “intended mother”. The only contract needed is an egg donation agreement. The egg donation agreement will address, among other things, the physical and mental health screening requirements for the donor, prohibitions against smoking and the use of alcohol and drugs during the egg donation cycle, abstinence from sexual activity during the cycle, the number of egg retrieval procedures, the amount of money to be paid to the donor for her inconvenience and discomfort (and not for her surrender of her eggs or the resulting child/ren – both Kansas adoption law and Missouri adoption law are clear on this subject) and the critical requirement that she totally relinquish any claim to her donated eggs or resulting embryos. If the donor is married, her husband will also sign the agreement. Egg donation agreements are usually semi-anonymous, where the parties are referred to by first names only. After the birth of the child, a simple adoption action is recommended to terminate any biological connection between the child and the egg donor. Under both Kansas adoption law and Missouri adoption law, the case will be like a step-parent adoption. Although the law is some states provides that an egg donor, like a sperm donor, has no legal connection to the child, such a statute has not yet been enacted in Kansas or Missouri.

Some couples, including certain same sex couples, will need the services of both an egg donor and a surrogate. In these situations, the legal steps involved are slightly more complicated. In addition to the egg donor contract, a surrogacy agreement must be signed. A surrogacy agreement is similar in many respects to an egg donation agreement. However, because the relationship between the surrogate and the intended parent(s) lasts much longer and is more complex, a surrogacy agreement is broader and more detailed. One key issue it will cover is health insurance coverage for the pregnancy and the payment of the surrogate’s uninsured medical expenses. Many health insurance policies have an “exclusion” of coverage for a surrogate pregnancy. Specialized insurance is available, but it can be expensive.

Compensation for the surrogate, including reimbursement for lost wages and daycare expenses (many surrogates have children of their own), is also addressed in detail. After the child is born, a parentage action will declare the intended father and the surrogate as the child’s parents. Because the surrogate gave birth, she is the child’s “presumed mother” under Kansas and Missouri adoption law. Under both Kansas adoption law and Missouri adoption law, a step-parent adoption will follow to terminate the parental rights of the surrogate (as well as any rights of the egg donor) and establish the intended mother as the child’s legal mother.

A surrogate who carries an embryo created from a donor egg is referred to as a gestational surrogate. A traditional surrogate is actually inseminated with the sperm of the intended father or an anonymous donor and, thus, is biologically linked to the resulting child. Regardless, the legal steps are generally identical to those followed in a gestational surrogacy. A surrogacy contract is signed and a parentage action followed by a step-parent adoption will establish parental rights.

A key component of any surrogacy, but particularly a traditional surrogacy, is psychological screening of the surrogate. Notwithstanding biology, the surrogate’s emotional connection to the child will be strong and it is critical to prepare her for post-birth separation. Again, neither Kansas or Missouri adoption law provide the intended parents with any legal right to the child, without the surrogate’s willing participation in an adoption proceeding.