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Unlike most states, SC birth parents rarely have legal right to revoke adoption consent

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The South Carolina Statehouse in Columbia. File/Andrew Whitaker/Staff

South Carolina laws recognize that people can have a change of heart after making a big decision. That's why some transactions come with a grace period attached. 

Gym memberships, vacation time-shares, anything purchased from a door-to-door salesman — all are refundable within a few days if the customer changes his mind. 

But adoptions are governed by a different set of rules. 

When birth parents in South Carolina sign an adoption consent form to relinquish their children, there's no buyer's remorse provision. And state law does not require an attorney to be present for the decision to be legally binding. 

Though adoptions often take months to finalize in Family Court, those initial consent forms are almost always irrevocable, unless they were obtained under duress or coercion, or if a court deems that a birth parent signed the document involuntarily.

"This is unbelievable to me, but it's so clear," said Charleston attorney Bill Nixon. "It's easier to revoke a consumer transaction than it is to revoke your consent to giving up your child for the rest of your life."

This isn't the case in most states, where birth parents typically have some time, ranging from a few days to a few months, to change their minds after they've signed the dotted line. Adoption laws vary widely across the country, but most states provide a revocation period for good reason, said Adam Pertman, president and founder of the National Center on Adoption and Permanency.

"This is a human being making a life-changing decision, not someone buying products at a grocery store," Pertman said. He called South Carolina's adoption law borderline "inhumane."

"This is a completely one-sided deal. These laws are designed solely for the adoptive parents and treat the birth parent as if she’s a vehicle for them," Pertman said. "Birth parents should be people with rights as well as responsibilities. And the right to change your mind about what you do with your child should be basic. It should not be negotiable."

A 2008 South Carolina Supreme Court decision echoes Pertman's opinion. 

"While an immediately effective consent form may be intended to provide assurances to adoptive parents, it does not reduce the heartbreak from prolonged litigation when a biological parent later changes his or her mind," the justices wrote. "Although a biological parent could still attempt to revoke consent by proving involuntariness, duress, or coercion, in our view, the likelihood of a challenge to the consent after reflecting during a revocation period would be substantially reduced."

In their opinion, the S.C. Supreme Court justices agreed that such a "reflection" period would be beneficial for both the biological and adoptive parents. But they conceded that the state's adoption laws don't allow for reflection and "we must, therefore, apply the law as it currently stands."

Adoption experts don't agree on this matter. James Fletcher Thompson, a Spartanburg adoption attorney, called revocation periods "somewhat paternalistic."

"Other states rely on the passage of time to formalize that decision," said Thompson. "I prefer the South Carolina approach that allows the birth parent to make a well-informed, intentional decision with her options well explained."

Still, birth parents may find themselves navigating this momentous decision without fully understanding the legal ramifications.

South Carolina law does not require an attorney to be present when an adoption consent document is signed. In fact, the state does not require the birth parents to be represented by an attorney at all. 

That's less protection than is afforded to prospective homebuyers. The South Carolina Supreme Court has made clear that home closings must be performed by attorneys because interpreting loan documents is considered the practice of law. 

South Carolina law does mandate that a certified adoption counselor who has been trained to help birth parents read the form be present at the signing. A separate witness must sign the document, too. 

The rules in every state are different, said Laurie Goldheim, adoption director at the Academy of Adoption and Assisted Reproduction Attorneys.

"I won’t work with (a birth mother) unless she has a separate attorney," said Goldheim, who practices adoption law in New York. "But every state is different. Some states permit that she can go unrepresented. Some states permit that she can waive her right to counsel. And I guess some states permit dual representation."

Adoption laws inherently vary across the country because they're written by state legislatures. 

"Every state has some quirk in its law," Goldheim said. "There’s no uniform adoption law. And there never will be."

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