A Bulletin for 

professionAls 

March 2003 

Providing 

Background 

Information to 

Adoptive Parents 

Providing complete background information 

benefits the child, the adoptive family, and the 

adoption agency. 

•	¬It helps the prospective adoptive family 

make an informed decision. Families who 

know a child’s complete medical, social, and 

placement history are better able to make 

an informed decision about whether they 

are emotionally and financially prepared to 

meet the child’s needs. Full disclosure, or 

telling prospective adoptive families everything an agency knows about a child, also 

What’s inside: 

•	ÊWrongful adoption 

•	ÊMinimizing wrongful adoption 

liability 

•	ÊInternational adoptions and 

agencies with little or no 

background information 

•	ÊEnsuring that families understand 

the impact of background 

information 

•	ÊUnanswered questions 

•	ÊOther resources 

U.S. Department of Health and Human Services 

Administration for Children and Families 

Administration on Children, Youth and Families 

Children’s Bureau 

Child Welfare Information Gateway 

Children’s Bureau/ACYF 

1250 Maryland Avenue, SW 

Eighth Floor 

Washington, DC 20024 

703.385.7565 or 800.394.3366 

Email: info@childwelfare.gov 

www.childwelfare.gov 
Providing Background Information to Adoptive Parents	¬ www.childwelfare.gov 

helps a family plan for a child’s placement 

and reduces the risk of adoption disruption 

or dissolution. 

•	¬It ensures the child is placed in an environment that can meet his or her needs. 

The social worker’s and the prospective 

adoptive family’s knowledge of a child’s 

health, social history, and placement history 

can facilitate early diagnosis and treatment 

if needed. Accurate background information and diagnosis may also enable a child 

to qualify for Federal and State adoption 

subsidies for children with special needs.

• It ensures the adopted person has full 

and accurate knowledge of his or her 

family, medical, and genetic history.

1 

Many adult adoptees do not have access to 

medical and family information that others, 

who are not adopted, take for granted. 

When planning a family or dealing with 

medical or psychiatric emergencies, knowledge of one’s background is crucial. 

•	¬It helps protect agencies and intermediaries from “wrongful adoption” lawsuits. 

Agencies have been held liable by the 

courts in “wrongful adoption” lawsuits for 

intentionally misrepresenting, deliberately 

concealing, or negligently disclosing a 

child’s background information to adoptive 

parents. Full disclosure can guard against 

such lawsuits. 

	 Regulations	issued	as	a	result	of	the	Health	Insurance	

Portability	and	Accountability	Act	of	996	(HIPAA),	which	went	

into	effect	April	4,	2003,	may	impact	the	information	agencies	

may	share	about	birth	parents’	health	histories.		Agencies	

should	consult	with	legal	counsel	regarding	applicable	State	and	

Federal	laws	and	regulations.

Wrongful Adoption 

The Ohio Supreme Court first recognized 

“wrongful adoption” in 1986 as a valid reason 

for adoptive parents to file a lawsuit against an 

adoption agency. In that case, the court found 

that the agency failed to disclose or misrepresented the health status or background of 

an adopted child at the time the child was 

placed. Since that time, a number of adoptive parents have won monetary awards from 

adoption agencies or intermediaries based 

on wrongful adoption findings, and appellate 

courts in at least 10 States have specifically 

recognized some form of wrongful adoption.2 

In all cases, wrongful adoption liability has 

been based on either fraud or negligence. 

There are two types of fraud cases: 

•	¬Intentional misrepresentation— 

Deliberately providing inaccurate material 

background information. 

•	¬Deliberate concealment—Deliberately 

withholding material background 

information. 

There are two types of negligence cases: 

•	¬Negligent misrepresentation—Carelessly 

providing inaccurate material background 

information. 

•	¬Negligent nondisclosure—Carelessly 

failing to provide material background 

information. 

2	 Leshne,	p.	4.

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Providing Background Information to Adoptive Parents	¬ www.childwelfare.gov 

Minimizing Wrongful 

Adoption liability
Ê

Between 1980 and 1995, the vast majority of 

States adopted statutes mandating that at 

least some health information be provided to 

adoptive parents.3

 These laws recognized that 

adoptive parents need information about a 

child’s medical problems or behavioral issues 

before the adoption takes place.4

 Agencies 

and intermediaries can begin by identifying 

the requirements of their State law (if there 

is one) and implementing a policy to meet 

those requirements. However, merely meeting

the State’s statutory requirements may not be 

enough to guard against wrongful adoption 

claims. Courts have rejected agency’s defenses 

that disclosure was not currently required by 

State statute.5

 Agencies and intermediaries 

can minimize their exposure to liability for 

wrongful adoption by taking the following 

steps in keeping with their State’s statutes and 

administrative regulations: 

obtain and Disclose 

“Material information” on the 

Adopted Child’s History 

Material information is any information that 

might be helpful to a prospective adoptive 

parent in deciding whether to adopt a particular child. (Wrongful adoption cases have 

considered birth parents’ physical and mental 

health histories and a child’s history of emotional or behavioral problems to be “material” information.) The majority of States have 

enacted statutes requiring the full disclosure of 

3	 Blair,	p.	5.

4	 Leshne,	p.	7.

5	 Blair,	p.	45.

a child’s social history and medical information 

to prospective adoptive parents.6

 In addition, 

some States have more detailed requirements 

in State regulations or licensing requirements.7 

In many States, the duty (either explicitly 

or implicitly by statute) to use “reasonable 

efforts”8

 to obtain background information 

and disclose health information may also 

extend to an attorney who serves as an intermediary or files a petition for adoption.9

 The 

purpose of these laws and regulations is to 

protect children and their families from harm 

arising from incomplete and inaccurate disclosure. Questions to consider when researching 

a child’s background include: 

•	ÊWhat would I want to know if I were adopting this child? 

•	ÊHave I satisfied the legal requirements of 

my State? 

•	ÊHave I used reasonable efforts to obtain as 

much background information on this child 

as I can? 

Develop Clear policies and 

Guidelines on the Collection and 

Disclosure of social and family 

Background information 

Ensure that, at a minimum, agency policies 

regarding information collection and disclosure meet your State’s legal requirements. 

Standardize protocols for collection and 

disclosure to ensure all necessary records 

and evaluations are obtained, and provide 

clear guidelines to caseworkers carrying out 

6	 Blair,	p.	26.
 

7	 Blair,	p.	83.
 

8	 States	define	“reasonable	efforts”	differently.	Check	
 

your	State’s	statute	or	consult	with	an	adoption	attorney	to	
 

understand	your	State’s	definition	of	reasonable	efforts.
 

9	 Blair,	p.	6.
 

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Providing Background Information to Adoptive Parents www.childwelfare.gov 

these protocols.10 Clear guidelines are also 

necessary regarding disclosure of potentially 

life-threatening illnesses such as HIV/AIDS or 

genetic predispositions.11 To collect information, agencies may wish to review hospital or 

other health care records, use birth parent 

medical questionnaires, and ensure that children have regular physical examinations. 

provide Adoptive parents With 

Written Disclosure of Background 

and Health information 

Disclosure should be made in writing prior to 

a child’s placement for adoption. One adoption expert suggests agencies should have 

both prospective adoptive parents (if a couple) 

sign reports documenting a child’s health and 

background information in the presence of 

two agency personnel. One copy of the report 

should go to the parents, one to the agency, 

and one to the court file to document the disclosure.12 Whenever possible, agencies should 

provide actual copies of reports, assessments, 

or other documents, rather than summarizing 

the material. Errors in transcription can alter 

the meaning and leave the agency open to 

liability due to negligence. 

educate prospective Adoptive 

parents About the limitations of 

information-Gathering and Disclosure 

Agencies should explain to families that 

in virtually every case there is information 

that the agency may not know. See Child 

Welfare Information Gateway’s Obtaining 

Background Information: A Factsheet for 

Families. Agencies should identify any areas 

0	 Blair,	p.	47.

	 Freundlich	&	Peterson,	p.	506.

2	 Blair,	p.	47.

where information is known to be missing and 

explain that all existing information may not 

have been discovered. For example, children 

who have been sexually abused may not feel 

comfortable telling anyone about the abuse 

until they are in a safe, stable environment. 

Indeed, an adoptive parent may be the very 

first person a child feels comfortable talking to 

about an incident of sexual abuse. 

Heighten Adoptive parents’ 

Awareness of the risks of Adoption 

The law in most States indicates an agency is 

not a guarantor of a child’s health.13 Agencies 

can clearly communicate to prospective adoptive parents that adoption, just like any other 

form of parenting, involves risks. It simply is 

not possible to predict a child’s future health. 

Make staff training a priority 

Agencies should ensure staff members are 

thoroughly familiar with standards of quality 

practice in collecting and communicating 

health and other background information. 

Agency staff should have skills in working with 

birth families to obtain the needed health 

and background information and in fully and 

accurately conveying that information to prospective adoptive families.14 Agencies should 

offer training in medical and genetic topics to 

facilitate better understanding of the health 

information.15 

obtain Appropriate liability 

insurance 

Agencies should review the substance and 

scope of their liability insurance to ensure they 

3	 Leshne,	p.	5.

4	 Freundlich	&	Peterson,	p.	508.

5	 Blair,	p.	6.

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Providing Background Information to Adoptive Parents	¬ www.childwelfare.gov 

have general liability and umbrella clauses, 

as well as professional liability to protect their 

staff in the event of claims related to professional services rendered. Directors’ and 

officers’ liability insurance should cover negligence. Agencies may also wish to negotiate 

for defense costs to be covered in the event 

of a fraud claim, and for the right to select 

one’s own defense counsel. (Typically, when 

insurance companies choose defense counsel, 

they select attorneys with little or no experience in the area of adoption.) Membership 

organizations such as the Child Welfare 

League of America (CWLA) or National 

Association of Social Workers will provide 

insurance or information as to where to obtain 

such insurance. Check with Child Welfare 

Information Gateway, info@childwelfare.gov 

or 800.394.3366, for current resources for 

liability insurance. 

international Adoptions 

and Agencies With 

little or no Background 

information 

In some countries, particularly where children have been institutionalized since birth in 

orphanages, full medical records may not be 

available. Translation problems, cultural differences, and differences in medical systems can 

make it difficult to interpret the information 

that is available. In some instances there may 

be no information at all regarding a child’s 

social and medical history. Some intercountry 

adoption facilitators provide a summary of a 

child’s health and social records rather than 

the full record.16 

Agencies can only guarantee that the information they do have is disclosed. Most agencies 

avoid liability for wrongful adoption in international situations by clearly communicating in 

writing the limitations (in quantity and reliability) of information made available to them. 

ensuring that families 

understand the 

impact of Background 

information 

Some adoption professionals suggest social 

workers implement practices to help prospective families develop an understanding 

of the possible impact of a child’s history, 

particularly with children adopted from foster 

care. One such practice involves the social 

worker, at the time a child is first presented 

to a family, providing the family with a written 

description of the critical events of the child’s 

life (such as abuse/neglect or removal from 

birth parents). The adoptive family is then 

asked to write down their thoughts on the 

following questions: 

•	ÊWhat messages or beliefs (about parents, 

themselves, the world, social workers, 

adults, etc.) might a child have learned from 

his or her experiences? 

•	ÊWhat might be the expected feelings and 

behaviors of a child who believes these 

things? 

6	 Leshne,	p.	4.

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Providing Background Information to Adoptive Parents	¬ www.childwelfare.gov 

•	ÊWhat are the pervasive themes in this 

child’s life? 

•	ÊWhat new messages might parents want to 

give this child?17 

This process can be repeated during the 

visiting phase of placement and again when 

the child moves into the home. After the 

child has been with the family for a month, 

the social worker can review with the family 

their thoughts at each stage of the placement 

process.18 This process should be supported 

with referrals for specific post-placement 

and post-legal adoption services, as needed. 

Providing adoptive parents with opportunities 

to anticipate the possible impact on children 

of previous experiences helps to educate the 

prospective family, helps ensure that they are 

connected with needed services, and documents that the agency shared key background 

information with the family. 

unanswered Questions
Ê

Experts seem to agree that adoption agencies 

and professionals have a duty to disclose what 

they know about children to prospective families. However, a number of questions remain 

regarding the extent of that responsibility. 

the Duty to investigate 

As of February 2003, no court had held that 

an agency has a duty to investigate (or a duty 

to ensure that all the background information 

is received and is correct). Liability may be 

possible, however, if an agency fails to meet 

a specific standard of effort, as mandated by 

State statute, in obtaining medical or other 

7	 Edwards.

8	 Ziegler,	p.	4.	

history.19 Some legal experts advocate incorporating the duty to investigate into statute; 

however, others warn this practice might compromise casework with birth families, discourage birth parents from considering adoption 

due to privacy concerns, and create a situation 

in which agencies cannot be certain when they 

have sufficiently “investigated” and may conclude such efforts.20 

Communicating facts vs. suspicions 

In some cases, in an attempt to avoid wrongful adoption liability, agencies share not only 

known information but also information they 

suspect or infer from statements made by the 

birth parents. This practice raises a range of 

ethical and practice issues related to improperly labeling a child, potentially delaying an 

adoptive placement, and providing possibly 

inaccurate information to prospective adoptive 

parents.21 The line between fact and suspicion 

may be difficult to draw but should be carefully considered when conveying background 

information. 

Genetic testing of Children 

An issue of ongoing debate is whether presymptomatic testing to determine the existence of genetic diseases or conditions should 

be conducted on children who are available 

for adoption. Some professionals see genetic 

testing as an opportunity to expand the information that can be provided to prospective 

adoptive parents, but others warn that this 

practice violates the rights of children, subjects children to testing for reasons other than 

9	 Blair,	p.	6.

20	 Freundlich	&	Peterson,	p.	50.

2	 Freundlich	&	Peterson,	p.	50.

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Providing Background Information to Adoptive Parents www.childwelfare.gov 

their own health needs, and could create new 

and higher standards of agency liability.22 

Interpreting Background Information. 

Though they often lack the requisite expertise 

to do so, social workers may be tempted to 

interpret background information for prospective adoptive parents. They may feel 

pressured to do this because of prospective 

parents’ concerns, or they may simply wish to 

help prospective parents better understand 

the background information they are given. 

Wrongful adoption cases counsel against such 

a practice. Staff generally should not offer 

interpretations, but rather should refer prospective parents to independent experts or 

other resources.23 

Communication of New Information After 

Finalization. Some States have established 

central registries that allow birth parents to 

provide updated health information after 

finalization. As of this printing, neither birth 

parents nor agencies have a legal duty to 

update information. Some have advocated 

that agencies comply with the professional 

responsibility (if not legal duty) to provide 

information acquired after finalization directly 

to adoptive families.24 

other resources 

internet resources 

Child Welfare Information Gateway 

The factsheet, Obtaining Background 

Information on Your Prospective Adopted 

Child (www.childwelfare.gov/pubs/h_wrong. 

22	 Lorandos,	996;	Freundlich	&	Peterson,	p.	5.

23	 Freundlich	&	Peterson,	p.	5.

24	 Freundlich	&	Peterson,	p.	52.

cfm), provides further information. The 

State Statutes series (www.childwelfare.gov/ 

systemwide/laws_policies/statutes/) highlights 

specific topics and provides a quick overview 

and comparison of legal requirements across 

the States. 

National Child Welfare Resource Center 

for Adoption 

Back issues of their newsletter, The 

Roundtable (www.nrcadoption.org/roundtable. 

html), can be obtained through the website. 

This publication regularly has articles relating to children who have been adopted from 

foster care. Volume 10, #1 has an article for 

social workers by Kay Donley Ziegler regarding sharing children’s background information 

(disclosure). 

Child Welfare League of America’s 

Standards of Excellence for Adoption 

Services 

This publication (www.cwla.org/programs/ 

adoption/cwla_standards.htm) outlines CWLA’s 

recommendations for thorough investigation 

of medical, developmental, psychological, and 

family history, and full disclosure of this information to adoptive parents. These standards 

also address issues of disclosure to adopted 

individuals and disclosure of a child’s positive 

HIV status. 

Books and Journal Articles Cited 

Association of Administrators of the Interstate 

Compact on Adoption and Medical Assistance 

(1997), Avoiding Wrongful Adoption Suits 

Through Good Policy and Practice, Issue 

Brief Number 25, September 1997. (Available 

through AAICAMA, American Public Human 

Services Association, 810 First St., NE, Suite 

500, Washington, DC 20002, 202.682.0100, 

www.aphsa.org.) 

This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare  Information Gateway. Available online at www.childwelfare.gov/pubs/f_backgroundbulletin.cfm. 
 

 

 

 

 

 

Providing Background Information to Adoptive Parents www.childwelfare.gov 

Blair, D. Marianne (1999), Liability of 

Adoption Agencies and Attorneys for 

Misconduct in the Disclosure of HealthRelated Information in Hollinger, J. (ed.), 

Adoption Law and Practice, New York: 

Matthew Bender. 

Carp, E. Wayne (1995), Adoption and 

Disclosure of Family Information: A Historical 

Perspective, in Child Welfare, JanuaryFebruary 1995, pp. 217-239. (Available through 

CWLA c/o PMDS, P. O. Box 2019, Annapolis 

Junction, MD 20701-2019 800.407.6273, 

cwla@pmds.com, www.cwla.org.)
Ê

Edwards, C. Lynne (2002), Opening Pandora’s 

Box: Helping Children Heal Through 

Storytelling, Conference Presentation, 

CWLA National Adoption Conference, Ft. 

Lauderdale, FL. (Available from the author at 

Coordinators/2, Inc. 4200 Chamberlayne Ave., 

Richmond, VA, 804.266.2694.)
Ê

Freundlich, Madelyn and Peterson, Lisa 

(1999), Wrongful Adoption: Law, Policy, and 

Practice. Washington, DC: CWLA Press.
Ê

Keefer, Betsy and Schooler, Jayne E. (2000) 

Telling the Truth to Your Adopted or Foster 

Child. Bergin and Garvey. (Available through 

Bergen and Garvey Trade, Westport, CT, 

Greenwood Publishing Group, 88 Post Rd. W., 

Westport, CT 06881, 203.226.3571, orders@
Ê

greenwood.com, www.greenwood.com.)
Ê

Leshne, Liane (1999) Wrongful Adoptions: 

Fewer Secrets and Lies, But Agencies Still 

Fail at Full Disclosure, Association of Trial 

Lawyers of America, April 1999, pp 14-17. 

(Available through Association of Trial Lawyers 

of America, Washington, DC. Leonard M. Ring 

Law Center, 1050 31st St. NW, Washington, 

DC 20007, 800.424.2725, 202.965.3500, 

info@atla.org, www.atla.org.)
Ê

Lorandos, Demosthenes A. (1996) Secrecy 

and Genetics in Adoption Law and Practice, 

Loyola University of Chicago Law Journal, 

Winter 1996, pp. 277-320. (Available 

from Fred B. Rothman and Co., 10368 

W. Centennial Rd., Littleton, CO 80127, 

303.979.5657.) 

This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare  Information Gateway. Available online at www.childwelfare.gov/pubs/f_backgroundbulletin.cfm.