Mary was abandoned by her biological parents when she was two months old. As an adult, she discovers that her adoptive parents are not her biological parents and wishes to take legal action against her real parents for abandonment. However, she lacks a DNA test or any other evidence to establish her true identity in court. What options does she have to pursue her case?
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14Mary will have to prove that she suffered some quantifiable harm by the abandonment. If the only harm was the shock of learning as an adult that she was adopted, aren't the adoptive parents responsible for that harm? I've known adopted people who knew from earliest childhood that they were adopted, so they were never subjected to that shock.– MTACommented Dec 8 at 16:15
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8Consider the knock-on effect of such a ruling. Mary getting reparations from their biological parents due to abandonment (with no further quantifier added in the question here) leads to parents who are currently on the cusp of abandoning their child via official channels realizing that doing so opens them up to future lawsuits. This disincentivizes those parents from either giving up their child, or to instead do so via clandestine methods. This may cause significantly more harm to many of these children. Mary's claim to reparations will be a net negative on overall child safety.– FlaterCommented 2 days ago
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8[..] It's unclear to me whether the basis of this question hinges on an understanding of the term "abandonment" to imply reckless abandonment (think Hansel and Gretel) and excluding legally giving up parental rights through the proper channels. Punishing parents for the latter would effectively illegalize that process in the first place.– FlaterCommented 2 days ago
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9"Abandonment" isn't really clearly defined in this question. Leaving a baby with relatives and running away is different than leaving the baby on the steps of a church or at a hospital, which in turn is different than leaving it in a dumpster. None of these are desirable, but they're also not equivalent.– barbecueCommented yesterday
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There are two separate issues, proving her parentage and whether she has standing to sue. Mary wouldn't need a DNA test but would need some evidence of her parentage. This might include birth certificate and papers relating to her guardianship and adoption, or testimony from people who witnessed it, etc.– Stuart FCommented 9 hours ago
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4 Answers
There is no legal right to be raised by your own biological parents. Mary's "real parents," in the eyes of the law, are her adopted parents.
Parents who surrender a child for adoption, or simply abandon that child, cannot be sued by that child for that reason alone. Generally, state law (which controls) specifically authorizes parents to do so without civil liability, and in most cases (i.e. barring criminal child abuse or neglect), without criminal liability. The statute of limitations for criminal liability would have run long ago in any case.
This is done to encourage parents who can't handle being parents to promptly give up a child for adoption, rather than creating a legal incentive for the parents to continue to keep a child in a bad situation.
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Doesn't that raise a question, what if she was not legally adopted, but raised by someone else, and the biological parents' rights were never terminated?– BoatCommented yesterday
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5@Boat The question says "her adoptive parents" and there is nothing to indicate that it was irregular. If the biological parents rights were never terminated that would be something they had standing to raise, not her, in any case. Commented yesterday
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Is there some legal description behind "abandon"? I imagine if new parents abandon at a Fire Station (or hospital, some other "safe space") vs. abandon in the street/dumpster, there could be legal/criminal ramifications for the latter, no? Commented yesterday
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7It could be a crime, which the statute of limitations would have long ago expired for. It would not be the basis for a civil lawsuit by the child. And the question is ambiguous about the nature of the "abandonment" which sounds like a mere "relinquishment" to allow an adoption. Commented yesterday
germany Mary can't sue.
The people who happen to share Mary's genetic code are, legally speaking unrelated and strangers to Mary, as Mary was adopted, but for incest laws. That is the case because an adoption extinguishes all legal rights in both directions, but the ban on incest is about genetic relatedness.
By giving up Mary for adoption, the former parents become fully unrelated strangers. As a result, Mary can not sue them for child support, and she is not automatically their inheritor. And there is no wrong that she can sue for either.
But... Crimes?
Assuming that Mary's genetic parents did commit some crimes against her before giving her up for adoption, those would be prosecuted by the state. In general, the german system also favors much fewer cases: In praxis that in case of a crime, almost always the civil claims are tacked on to the criminal case as a so-called "Adhäsionsverfahten" - the judgment will include the criminal and civil punishments. This also bars any subsequent civil suit for damages.
In the rare case that Mary's civil claim was not adjudicated together with the crime, bringing the case as an adult would generally be time-barred, as the criminal case also made Mary (or her legal guardian) aware of the crime and damage, and they would have had at maximum 3 years to bring their claims.
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Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.– feetwet ♦Commented yesterday
There is no cause of action for "abandonment" in the sense described in the question.
One would need to fit the wrong into a standard tort or extra-contractual civil liability (Quebec). The facts as presented are insufficient to establish any tort or extra-contractual wrong that I can imagine.
More or different facts might establish a tort.
Adoption
Adoption severs all legal ties between the child and living biological parents - those people, therefore, have no legal relationship with the child. An adoption that occurs after the birth parent's death does not destroy the legal relationship.
So, for an adopted child of living parents, there is no duty of care arising solely from being a biological parent.
Other arrangements
There are many circumstances where a child may grow up being cared for by people who are not their parents without formal adoption. Indeed, this is by far the more common circumstance.
In those cases (as well as the adoption of a deceased person's child), the biological parents are still the parents and have legal duties towards the child. However, these duties are owed to the State, not the child - breaching them is an offence, but it does not give the child a cause of action through negligence or similar torts.
Australian courts have been vehemently opposed to universally recognising the existence of a parental duty of care.
So, while some relationships automatically create a duty of care (e.g. doctor/patient, driver/road user), the parent/child relationship does not. That's not to say there couldn't be a duty of care in particular circumstances just as there could be between any two unrelated people.
With respect to abandonment, if this was done in a way that was not negligent (e.g. leaving the child in the care of a competent person), there is cause of action.
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1"Australian courts have been vehemently opposed to universally recognising the existence of a parental duty of care." I'm guessing this is because of informal Aboriginal childcare structures and the Stolen Generation? Commented 2 days ago
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@nick012000 as far as I know, this is the default position in all common law jurisdictions. So, its not a particularly "Australian" position.– Dale M ♦Commented 2 days ago
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The first paragraph misses the mark here in that Mary isn't trying to get her biological parents on the hook for something that happened after the adoption. Mary's point is (presumably, since the finer point was not established) that the abandonment is a failure in the duty of care when it was still a duty of care. I suspect that this answer has assumed that Mary's alleged harm arose from where she ended up post-abandonment, i.e. a bad adoptive situation, but the question doesn't really specify this. The question implies that this is about the act of abandonment in and of itself.– FlaterCommented yesterday
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3@Flater I'm commenting to you here, but this also applies to all your comments to the answers... not being the OP, I'm not sure I understand why you are being so ... emphatic ... in YOUR understanding of the question. The answerers may have a differing understanding and have answered. Perhaps, as the saying goes, you could write your own answer, or question? Commented yesterday
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1In your second paragraph, did you mean to say, "living biological parents?" Similar question for your last sentence, did you intend to say, "there is no cause of action?" Commented yesterday