"The legal rules on the timing of consent are ultimately a compromise between the interest in protecting biological mothers from making hasty or ill-informed decisions at a time of great physical and emotional stress, and the interest in expediting the adoption for newborns."
Joan Heifetz Hollinger
South Carolina does not have a waiting period before a consent and relinquishment (hereafter "consent") becomes effective; the consent is effective immediately and cannot be withdrawn without an order from the court.
Under South Carolina Law, the biological parent wishing to withdraw her consent must show that the withdrawal is in the best interest of the child and that the consent was not given voluntarily or was obtained under duress or through coercion. This post will focus on the voluntariness of the consent.
In McCann v. Doe, the South Carolina Supreme Court examines a withdrawal of a mother's consent. After the Court recites the facts, it analyzes the voluntariness of the consent and concludes the consent was not given voluntarily.
The Court gives the definition of duress as "'a condition of mind produced by improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or form a contract not of his own volition. '" It than proceeds to put emphasis on "emotional stressors" as it determines whether the consent was entered into voluntarily.
The dissenting opinion with which I agree states:
The majority concludes that the evidence showed McCann's "emotional stressors and suffering caused impaired functioning," which in turn rendered her relinquishment involuntary. However, an action is involuntary when it is performed under duress, force, or coercion, and the crux of this case really is whether McCann acted while under duress...
In my opinion, there is no compelling evidence that McCann's "emotional stressors" were anything but internal in nature. Therefore, although I would agree with the family court's conclusion that McCann was in an emotional state, the family court erred in finding her consent was given involuntarily. Circumstances such as temporary depression or emotional distress simply are not sufficient, in and of themselves, to invalidate a consent to adoption.
Moreover, to suggest that because others offered to support McCann regarding her adoption decision, this encouragement somehow acted to coerce McCann into signing the relinquishment is a sad commentary, indeed. Support for a parent's choice to place a baby for adoption is something that should be promoted, although clearly the decision should never be forced upon a parent...
Of most importance to the instant case is the relinquishment form which was entitled "CONSENT TO ADOPTION." As previously mentioned, and as conceded by the majority, this form complied with the statutory requirements...The purpose of these statutes is "to ensure that birth parents freely and voluntarily consent to relinquish there particular child, and do not do so under conditions of duress.
The South Carolina legislators have put several safeguards in place to ensure that a birth parent is not under duress when she consents to the adoption and relinquishes her parental rights. One of the safeguards is the form and substance of the document the birth parent signs. Another safeguard is the requirement of having the consent and relinquishment signed in the presence of two witnesses. If the consent and relinquishment is taken within this state, one of the witnesses is required to be a family court judge, an attorney who does not represent the adoptive parents, or a person certified by the Department of Social Service to take a consent and relinquishment . If the consent and relinquishment is taken outside of this state then an attorney licensed in the state or jurisdiction within which the consent and relinquishment is signed is required to be one of the witnesses.
In this case, the Court seemed to be bending the facts to its will rather than rendering an opinion based on the facts when it focused on the inner turmoil of the birth mother rather than any external coercion that may have occurred. The Court acknowledged that the consent and relinquishment was proper in form and substance; the facts discussed in the opinion indicate that the attorney taking the consent explained the legal ramification of signing the consent and the birth mother acknowledged she understood the legal ramification of signing the consent. Yet under the guise of the "totality of the circumstance" the Court rendered an opinion contrary to these facts and based on the Court's expanded definition of duress.
This opinion has the potential to make the adoption process less certain and more costly. It seems that a birth mother now only needs to show that several "emotional stressors" overwhelmed her and made her feel like she had no other choice but to release her baby for adoption; in these cases, the lower courts will be apt to find that the consent was entered into involuntarily because the South Carolina Supreme Court expanded the definition of duress to include these internal pressures caused by "emotional stressors."
