The facts of the case reveal that several days before the birth of the infant, the adoption agency became aware that the birth mother was addicted to methadone during her pregnancy, information they chose not to disclose to the excited adopting couple who arrived for the birth of their child only days later.
The new parents were elated as they cared for the baby, named her, and sent snapshots back home to friends and family, but they noticed that the infant seemed to be sensitive to their touch and was experiencing multiple, difficult bowel movements. It was then that the agency social worker advised them that the baby was suffering methadone withdrawal.
They were devastated and forced to make one of the most difficult decisions of their lives. They had signed a contract where they stipulated that they would not take a child whose mother abused drugs, and that is exactly the situation they found themselves in.
They refused to take the child and sued the agency. The agency argued that another contractual term provided that the agency would not be held liable to prospective adoptive parents if relevant facts about the mother and the infant were not brought to the parent’s attention, because the facts were unknown to the agency.
The trouble was that the agency was aware of the baby’s medical situation but did not tell the couple until the new parents had spent considerable time bonding with the child.
While the trial court in Indiana threw out the couple’s lawsuit, the Indiana Court of Appeal ruled that the action could proceed, noting that the contractual protection advanced by the agency did not assist him as they were obliged to inform the couple of the new information as soon as they were aware of it, but did not.
The action against the adoption agency is a civil claim for intentional infliction of emotional distress, a tort that rarely succeeds in Canada, however, U. S. juries are renowned for giving large damage awards.
Lawdiva aka Georgialee Lang