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St. Mary's Law Journal

Fred S. Wilson

Abstract

Texas has an opportunity to improve a necessary tool of family law by recognizing and advancing wrongful adoption. There is an underlying lack of recognition for the interests of adoptive parents in adoption law. Those who choose to adopt necessarily rely on the information provided by an adoption agency in making their decision. As such, adoptive parents are particularly vulnerable to misrepresentation about the pertinent history of the adoptee. Recent cases in other states demonstrate the progression of wrongful adoption as a tort, yet many inadequacies remain. The necessary progression of wrongful adoption calls for the imposition of a duty on adoption agencies to disclose the pertinent history of the adopted child and liability for agencies which negligently discharge this duty. Griffith v. Johnson has opened the door for Texas to recognize wrongful adoption as a cause of action. Although the Griffiths lost on their due process claim, the court stressed the Griffith’s claim would have been proper under Texas tort law. Accordingly, Griffith stands as an argument for the recognition of wrongful adoption as a tort. Further, Texas has been very willing to impose a duty on physicians to disclose pertinent information to prospective parents concerning the potential complications their child may face. Adoption agencies serve much the same purpose for adoptive parents as physicians do for natural parents. Therefore, just as Texas imposes liability on physicians who negligently mislead natural parents, so too should Texas impose liability on adoption agencies who negligently mislead adoptive parents. Thus, the climate is ripe for Texas to adopt wrongful adoption and recognize the interests of adoptive parents.

Publisher

St. Mary's University School of Law

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