In Re Baby Girl D.

517 A.2d 925, 512 Pa. 449, 1986 Pa. LEXIS 906

• Court: Supreme Court of Pennsylvania
• Decided: November 17, 1986
• Docket: 25 W.D. Appeal Docket, 1985
• Status: Published

Opinions

OPINION OF THE COURT

FLAHERTY, Justice.

We granted the petition for allowance of appeal of the minor adoptees, through their guardian ad litem, to address the question whether expenses for locating, preparing and arranging an adoption are properly charged to adoptive parents by an adoption agency, Family Infertility and Counseling Center of the Family Planning Counsel of Western Pennsylvania, and, if so, whether any limits on those expenses are properly imposed by the orphans’ court division of the court of common pleas. The issue presented raises a question whether persons are profiting impermissibly from the placement of newborn infants in adoptive homes. The various courts of common pleas have taken differing positions as to allowable fees in adoption cases.

The question arose when investigators hired by the court under Orphans’ Court Rule 15.5 questioned “unusual” fees charged to adopters in cases involving the intermediary agency, Family Infertility and Counselling Center of the Family Planning Council of Western Pennsylvania. The questioned fees are for (1) counselling natural mothers; (2) counselling adopters; (3) advertising expenses; (4) room and board and travel expenses of the natural mother and certain of the mothers’ medical expenses unrelated to the birth; (5) agency fees. The court, in limine, ordered the intermediary agency to reimburse adopters for all amounts paid in connection with these enumerated expenses. Any fees paid by adoptive parents which might operate as consideration for the transfer of a child were disallowed. Superior Court granted the intermediary agency’s petition for permission to appeal, but subsequently ruled that because individual findings of fact were not made in each case, the matter should be remanded to the trial court to augment its opinion. Because we deem the record adequate to address the broad legal question involved, we reverse the order of Superior Court, 339 Pa.Super. 624, 488 A.2d 1169, and consider the merits of the claims raised by the parties.¹

STANDING

Appeal is sought by the infant children, through their guardian ad litem², and a question has been raised as to the guardian ad litem’s standing to challenge the propriety of the expenses charged to adopters by the adoption agency. The guardian argues that adoption fees charged to adopters and paid for the benefit of natural mothers impermissibly affect both the decision of the natural mothers to voluntarily terminate parental rights and the decision of the agency as to which adopters would provide the best homes for the infant children. The guardian questions whether these infants’ placements are based upon financial rewards rather than a detached assessment of the relative merits of prospective adopters. One judge of the orphans’ court division below deemed expenses charged to these adoptive parents tantamount to “huckstering in human infants.”

The guardian ad litem’s standing to question the propriety of the fees charged must be grounded upon the standing of the infant children themselves, see Sigel Appeal, 372 Pa. 527, 94 A.2d 761 (1953). It should by now be beyond question that it is every American’s right not to be bought or sold. PA.CONST. Art. I, § 1 provides:

All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.

Inherent in this provision must be the right of every individual not to be bought or sold. If individuals have the right not to be bought or sold, it necessarily follows that those individuals must have standing to raise that right in appropriate proceedings. Cf., Stapleton v. Dauphin Co. Child Care Serv., 228 Pa.Super. 371, 324 A.2d 562 (1974) (juvenile is a “party” to an action for custody under the Juvenile Act, Act of Dec. 6, 1972, P.L.1464, No. 333, 11 P.S. § 50-101 et seq., since repealed and replaced); Juvenile Act, Act of July 9, 1976, P.L.586, No. 142, 42 Pa.C.S.A. § 6337 (parties to proceedings under Juvenile Act, including children, are entitled to representation by legal counsel). The guardian ad litem was appointed by the court to represent the interests of the children in the proceedings sub judice. Thus, it follows that the guardian ad litem must have standing to challenge any procedure which amounts to a sale of the child whose interests she is appointed to protect.

REVIEW ON THE MERITS

The issue presented is whether the determination below, that impermissible and excessive fees were charged to adoptor parents by the adoption agency, was properly within the discretion of the judge of the orphans’ court division. This case presents a pure question of law regarding the authority of the orphans’ court division, as protector of the adoption process, to disallow certain fees charged to adoptor parents by the intermediary agency. We will find an abuse of discretion where the lower court’s judgment is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, Commonwealth v. Lane, 492 Pa. 544, 549-550, 424 A.2d 1325, 1328 (1981), or without support in the record.

Traditionally, allowable expenses to adopter parents have been limited to reasonable unreimbursed lying-in expenses, reasonable legal fees incident to the adoption proceedings and costs of the proceeding.³ The reasons for the limitations on fees are obvious. Firstly, the limitations ensure that children will be placed in homes that promote their needs and welfare, 23 Pa.C.S.A. § 2902. Although financial considerations are certainly a factor, placement of children in adoptive homes should not rest solely on the wealth of the adopters. Many homes with scarce financial resources are nevertheless adequate to provide the love, protection and support that children require. Secondly, the limitation upon expenses ensures that children are not bought and sold like commodities. As noted supra, sales of children contravene the public policy of this Commonwealth, and cannot be sanctioned by our courts. Thus, payments to or for natural parents by adopter parents are permissible when the payments are for services which directly benefit the child, such as medical expenses directly related to the birth. See, Gorden v. Cutler, 324 Pa.Super. 35, 471 A.2d 449 (1983). Such expenses are paid to ensure a safe birth and healthy infant, and not for the benefit of the mother, although the mother certainly receives an indirect benefit. Payments by adopter parents which do not directly benefit the child are impermissible.

As noted supra, expenses, which were charged to adopter parents and disallowed by the orphans’ court division, include fees for “counselling” natural mothers. The lower court found that counselling for natural mothers was required.⁴ Although some natural mothers apparently refused counselling, most natural mothers were counselled at a cost to the adoptor parents of from $145-$585. In some cases the exact dollar amounts were not available at the hearing, because they had not yet been billed.

The intermediary agency argues such charges to adoptor parents ought to be permitted on grounds the counselling benefits the child.⁵ The benefit to the child, it is argued, is the stability which will come from the natural mother’s settled decision to relinquish parental rights. While we cannot ignore the difficulties endured by children whose homelives are unsettled, we must conclude that any benefits from counselling natural mothers inure to the direct benefit of the natural mother and not to the child. The child is benefitted, if at all, only indirectly. Thus, payment by adoptive parents for counselling natural mothers in preparation for relinquishment of parental rights falls outside the guideline that permissible payments directly benefit the child. Moreover, one is left to wonder whether the same adoption agency can objectively counsel both the natural mothers and prospective adopters, as will be discussed infra, where the counselling fees seem to be connected to the adoption process. For these reasons, we cannot say that the orphans’ court division abused its discretion in disallowing such charges to adoptive parents.

Some adoptor parents were also charged for expenses of transporting natural mothers to Pittsburgh and of housing the natural mothers for periods of up to ten and one-half weeks prior to the birth. Room and board were charged in two of the cases sub judice. In both cases, the natural mother’s home was outside the Pittsburgh area. Again, the intermediary agency argues that room and board were medically necessary; however, the record does not support this claim.

Room and board were charged at the rate of $50 per week. Although the exact amounts of charges to adopters for these expenses are not included in the record in each case, it is interesting to note that in no case did the adopter couple house the mother of the infant they were to adopt. Of course, were adopter couples to house the natural mother whose child the adopters awaited at the adopters’ expense, such could arguably constitute a payment to the mother in anticipation of the transfer of the child in contravention of the criminal statute proscribing dealing in infants, 18 Pa.C.S.A. § 4305. Moreover, such an arrangement would raise questions about the voluntariness of the natural mother’s decision to relinquish parental rights. Therefore, adopter couples housed natural mothers of infants who were to be placed with different adopter couples. The costs of housing a natural mother were, however, borne by the adopter couple who would later obtain that mother’s infant. The lower court’s recognition of this attempted subterfuge and order that adopter parents be reimbursed by the agency for payments made on account of natural mothers’ housing expenses is a proper exercise of that court’s discretion.

Other expenses paid by adopters for services to the mother include medical expenses wholly unrelated to the birth⁶, Lamaze classes, pre-natal care and sonograms. These expenses were all disallowed. Again, these expenses are not directly connected with the birth, and, thus, are outside the parameters of the traditional allowable expenses in adoption.

Modern medical science is making great strides toward determining ideal developmental conditions for a fetus in útero. With the relatively recent understanding of nutrition, appreciation for the value of vitamins in the daily diet, and studies of the effects of cigarette smoking and alcohol consumption, for instance, modern notions of ideal pre-natal care for infants are expanding. Are we then to sanction provision by adoptive parents of a halcyon environment and delectable foods for expectant mothers on the grounds these are beneficial to the child? If medical science were to determine that stress during pregnancy was inimical to the fetus, and an expectant mother’s employment was causing her stress, would prospective adopters be expected to employ an agency to find the mother a happier work environment, or perhaps simply support the mother during her pregnancy lest the added stress inhibit the baby’s development or effect his insufferable disposition? We think not. Services such as these, which directly benefit the natural mother, would naturally tend to influence the mother’s decision whether to relinquish her parental rights. This we cannot allow. The fact that the child may enjoy an indirect benefit from these services cannot provide a basis for permitting their provision for the mother at the expense of prospective adopters.

Most adopters participated in infertility counselling and adoption counselling in a two-step process. First came infertility counselling. If, at the conclusion of the infertility counselling, the infertile couple desired to adopt, adoption counselling followed. Adoption counselling consisted of advice regarding advertising availability to adopt newborn children and warnings about a “black market” in adoptions. Although some of the adopters testified that this counsel-ling was a regular part of the adoption service, other adopters testified that counselling was optional. The court resolved this conflict in favor of a finding that counselling was required. One adoptive parent testified that the costs of adoption counselling were only billed to persons who adopted. Thus, the so-called counselling expenses are clearly an agency fee for an adoption, and not a fee for counsel-ling as such. Costs for counselling adopter parents range from $50-$75 per case.

The intermediary agency argues the fees for counsel-ling prospective adopters are proper because Department of Public Welfare regulations for licensed adoption agencies mandate the availability of counselling.⁷ However, ensuring the availability of counselling to those who seek it does not mean compelling adoptive parents to avail themselves of that counselling.⁸ Certainly, where potential adopters voluntarily seek counselling services, they should pay fair value for those services. In the present case it appears that mandatory counselling generated fees to the agency. Such practice is not envisioned by DPW’s regulations.

Finally, the court disallowed advertising expenses and ordered the intermediary agency to reimburse adopters for advertising costs in connection with newspaper ads and leaflets. Advertising for adoption has not been barred by the General Assembly and is certainly a legitimate means, in this society, of making one’s availability to adopt publicly known. The form of the ads in the instant case does not appear of record. Thus, we cannot determine whether the ads simply announced the availability of adopters, or whether they promoted the agency itself as the guardian’s brief suggests. Thus, the record does not support the lower court’s determination that advertising fees were improperly charged to adopter parents by the intermediary agency, and, on this record, this determination must be reversed.

We are all aware that because of the availability of effective contraceptives, the legalization of early pregnancy termination and the custom of many young women to delay parenting in order to establish careers, the number of white infants available for adoption is dwindling while the demand for them is increasing. The same young women who have delayed parenting to establish their careers, and who have difficulty conceiving, also have relatively high incomes. Instantly, the adoptive parents have substantial annual incomes, ranging upward from $34,000. The danger thus presented is that white infants will be placed with the family who can pay the most money.

The brief of Family Infertility and Counselling Center recites its sliding scale fee arrangement. Under this arrangement, the agency’s fee is calculated at seven and one-half percent of the adoptor couple’s gross annual income, with a ceiling of $7500.⁹ What relation the costs of providing an adoption service could possibly bear to the adopters’ gross annual income escapes definition. What seems clear from such a sliding scale, however, is that agencies will naturally be motivated to place babies with the adopters who can afford to pay the highest fee, and not necessarily with the family that can provide the most loving and supportive home. The charging of a fee based upon the income of the adoptor parents is per se illegal. It is the function of the orphans’ court division of the courts of common pleas to guard that adoptions do not provide a profit, for, when they do, someone is surely “dealing in humanity” in contravention of the criminal statute. We are satisfied that the court has properly discharged this function in the instant case by disallowing such. Indeed, any agency fee which is unrelated to those set forth in this opinion must be disallowed.

The order of Superior Court is reversed, and the record is remanded to the orphans’ court division for entry of an appropriate, final order.

HUTCHINSON, J., files a dissenting opinion which is joined by ZAPPALA and PAPADAKOS, JJ.

1 . Since the date the interlocutory appeal was allowed by Superior Court, adoptions have been decreed in five of the six cases sub judice.

2 . The guardian ad litem was appointed pursuant to the authority vested in the orphans’ court by virtue of 20 Pa.C.S.A. § 751 which provides, in pertinent part, as follows: "The orphans’ court division may appoint ... [o]n its own motion, a guardian or a trustee ad litem to represent the interest, not already represented by a fiduciary, of (i) a person not sui juris. . . .”

3 . The costs of the proceeding which are properly charged to adoptors are limited by statute to a maximum of $150, 23 Pa.C.S.A. § 2313.

4 . The adoptor parents’ agreement to pay the costs of counselling natural mothers was surely based upon some assumption that they would obtain a baby after the counselling. Nowhere in the record is it suggested that adoptor parents paid a natural mother’s counselling expenses out of any charitable motive.

5 . It should be noted that all the children involved in these proceedings are newborn infants.

6 . One mother had a mass surgically removed from her breast, and the cost of the medical procedure was billed to the adoptive parents. The rationale for this was that the mass might be malignant and, if so, metastasize, threatening the fetus.

7 . The Department of Public Welfare, Office of Children, Youth, Families Social Services Manual provides at ¶ 2-1-16 that "The service provider shall insure, either directly or through referral, the availability of counseling and other services, as needed, to natural parents, the child and the adoptive parents.”

8 . Among the adopters in these cases, only one couple testified they did not receive adoption counselling, although they did receive fertility counselling. The husband is a psychiatrist and the wife a clinical psychologist.

9 . Contrast this with the usual adoption agency fee in Allegheny County which is S150-$200.