Birth Mother Expenses
Standards For The Payment of Allowable and Appropriate
Expenses of Birth Mothers Under
California Penal Code Section 273
(Updated September 13, 2003)
California Penal Code Section 273 provides in pertinent part:
(a) It is a misdemeanor for any person or agency to offer to pay money or anything of value, or to pay money or anything of value to a parent for the placement for adoption, for the consent to an adoption, or for cooperation in the completion of an adoption of his child. This section does not make it unlawful to pay the maternity-connected medical or hospital and necessary living expenses of the mother preceding and during confinement as an act of charity, as long as the payment is not contingent upon placement of the child for adoption, consent to the adoption, or cooperation in the completion of the adoption.
(b) It is a misdemeanor for any parent to obtain the financial benefits set forth in subdivision (a) with the intent to receive such financial benefits without completing the adoption or without consenting to the adoption.
By reading this statute carefully, it is clear that the law puts the following conditions on payment of expenses related to an adoption. The expenses must be:
- Of the mother;
- Preceding and during “confinement;”
- An act of charity; and
- Paid unconditionally.
Interpreting these conditions is often difficult, for the statutory standards are less than clear. The result has been confusion, misunderstanding, and abuse of the adoption process. The Academy of California Adoption Lawyers (“ACAL”) has created the guidelines which follow, in order to create an atmosphere of greater legal certainty, discourage abuse of the adoption process, and to establish a yardstick of ethical conduct to which the courts may refer in order to determine whether the facts of individual cases suggest inappropriate conduct or abuse. These guidelines are based upon many years of experience and common sense. In the view of ACAL, the ultimate purpose of the statute is to make adoption a financially neutral option for the birth mother – she should not realize financial gain from the act of placing her child for adoption, nor should she suffer significant financial hardship as a result of that decision. There are some inherent inequities in our current statutory scheme, as is discussed below, but until the legislature addresses those inequities, the parties to an adoption must comply with the law in its current form.
The Academy of California Adoption Lawyers (“ACAL”) has prepared these guidelines to discourage abuse of the adoption process and create a greater degree of certainty as to the application of Penal Code Section 273. Of course, variations from these guidelines may be necessary or warranted by the facts of an occasional case.
The Academy urges the courts to examine closely the Adoption Expenses Report filed in every adoption in compliance with Family Code Section 8610. After this review, the Adoption Request/petition ought to be granted if the Court is satisfied that doing so is in the best interests of the child.
The membership of the Academy of California Adoption Lawyers takes ethical adoption seriously and invites the Court and others interested to contact an Academy member with any questions regarding the guidelines and how they apply to specific situations. A list of all members can be found at in the Members Directory.
The statute refers to expenses “of the mother." Therefore, any financial assistance provided must be for her support. By extension, if a birth mother is under a legal duty to support another person, such as a child or a disabled husband, the amount of assistance provided to the birth mother should reflect that legal obligation. This is considered assistance to her, not to the third party she is supporting.
In the absence of a birth mother's legal obligation of support, it is improper to support her boyfriend or other persons. Thus, if a birth mother is cohabiting with another person, the other person ought to be expected to pay an equitable share of common expenses such as rent, groceries, or utilities.
The statute provides that assistance may be provided for the period “preceding and during confinement”. The terms “confinement” is undefined, and has never been interpreted in an reported decision. However, in all likelihood, a court would define “confinement” as “pregnancy related disability or unemployability”. Obstetricians generally consider a woman “disabled” for two (2) to six (6) weeks after delivery in the case of a normal vaginal delivery, or four (4) to twelve (12) weeks in the case of a caesarian delivery. Therefore, it is legally appropriate for adopting parents to assist with a birth mother’s expenses until her medical disability is ended, in the professional judgment of her physician.
Absent unusual and compelling circumstances, prenatal support should be limited to three (3) months. If a birth mother is employed, she should be encouraged to continue her employment until her treating physician recommends that she commence her maternity leave.
If a birth mother is unemployed, and unable to obtain employment due to her pregnancy, it might be necessary and appropriate for financial assistance to start more than three (3) months prior to her expected delivery date. Discrimination against pregnant women in employment may be illegal, but it is rampant nonetheless, and these guidelines need to be flexibly applied to reflect this reality.
Typically, support should be limited to current and future expenses. Retroactive payment of maternity related expenses shall be scrutinized by an adoption attorney to ensure compliance with the intent of the law.
Under the statue, only expenses “related to the pregnancy” may be paid. Typically this would include maternity clothing, housing, food, utilities, transportation, and other items which are discussed in more detail in the following questions
Maternity clothing is necessary for almost all pregnant women, at least during the later stages of the pregnancy. The cost of such clothing will depend to some extent upon the state of the woman’s wardrobe at the time of conception. In most cases, a reasonable budget for maternity clothing purchased or reimbursed by the adopting parents for the birth mother should not exceed $750.00, absent some compelling reason for a greater expenditure.
Housing should be comfortable but unostentatious, and should exceed a birth mother’s accustomed lifestyle.
Utility payments for the housing (unless included with the monthly rental fee) normally include electricity, water, sewer, and trash service, and might also include natural gas service, propane service, or other items related to the specific housing situation.
In our electronic society, telecommunications are considered by many people to be a necessity of life. When a birth mother requests assistance with telecommunication expenses such a landline phone, a cell phone, Internet service, and cable TV service, one must consider whether maintaining these services is necessary to a healthy and safe pregnancy and delivery.
Phone service is arguably necessary for making appointments (especially medical appointments) and calling for assistance in the event of an emergency. In some situations, it might be necessary to purchase a phone in order to provide the birth mother with phone service. If that is the case, the phone should be returned to the attorney or prospective adoptive parents at the end of the support period.
Internet service can be provided for a birth mother if it is reasonably necessary for her to communicate with her legal counsel, the prospective adoptive parents, and her medical care providers. Again, any equipment purchased to provide this service should be rented, or if purchased, should be returned to the attorney or prospective adoptive parents at the end of the support period.
Cable TV service, while considered a necessity by many, is not really a pregnancy-related utility. Granted, if a birth mother is home on pregnancy-related disability, especially bedrest, it can be difficult for her to pass the time comfortably without some form of entertainment and distraction. Even so, this particular expense should be scrutinized carefully prior to payment to ensure that it us truly "maternity-related."
It is also appropriate for adopting parents to assist with groceries and sundries. A very general guideline would be $500.00 per month for a woman living alone, or $650.00 per month if she has a child to feed as well.
Of course, these numbers may vary substantially due to the cost of living in the birth mother's area of residence. In some places, $500 would be excessive, whereas in others, it may not be enough. Adjustments may also be made if birth mother has special dietary needs due to diabetes, celiac disease, etc., that could increase the cost of her food.
Generally, transportation expenses are payable only for the birth mother and those persons she is under a legal obligation to support. However, if a birth mother is traveling some distance to give birth, it is appropriate to assist with her round-trip travel expenses, plus those of the birth mother’s primary emotional support person.
Becaues birth mother requires transportation to and from doctor and counseling appointments, assistance with bus passes or actually incurred taxi fares is permissible. It is also proper to rent a car for a birth mother’s use during the limited support period, as discussed in previous questions.
However, even if it would be less expensive than paying for taxi fare or bus passes, adopting parents may not under any circumstances buy a car for a birth parent. The purchase of a car is not a “maternity related” expense under the statute.
However, if a birth mother is making payments upon a pre-existing car loan, the adopting parents may assist with those payments during the support period. This assistance may also extend to her gasoline, automobile insurance expense, and car repairs necessary to keep the vehicle safely operable, provided it can be characterized as a minor repair and not an improvement or enhancement of the vehicle.
Routine dental care may properly be provided to a birth mother during her “confinement” at the expense of the adopting parents. This does not extend to bridges, crowns, orthodontia work, or other corrective dental work unrelated to the pregnancy.
If a birth mother needs furniture, the attorney for the prospective adoptive parents should arrange for furniture rental during the time period that support is required. Although renting furniture could be more expensive than purchasing second-hand furniture, it is not proper to give a birth mother tangible long-term assets such as furniture or a car, which are beyond the allowed scope of expenses under the statute.
If placement of a child for adoption necessitates a move by a birth mother, reasonable moving expenses may be properly be paid by the adopting parents. However, this is only proper when the move is one of necessity rather than of convenience. This applies to storage of a birth mother’s belongings as well.
Loans to a birth mother ought to be avoided as it is highly undesirable to create a debtor/creditor relationship between the parties to an adoption. Also, a loan is something of value, and the statute applies to payment of “anything of value." Therefore a loan to a birth mother is proper only if it meets all of the tests set forth in the statute. The loan also must be disclosed in the Accounting Report filed with the court pursuant to Family Code Section 8610.
Penal Code Section 273 allows assistance with “expenses." Loss of income is not an expense. Therefore, adopting parents may not reimburse a birth mother her loss of income occasioned by the pregnancy. In most cases, the income would be used to pay necessary living expenses anyway, so if adopting parents pay the living expenses of a birth mother as well as reimburse her loss of income, they will in effect be reimbursing her twice–once for her living expenses and once for her lost income which would amount to double payment.
Granted, if a birth mother normally earns substantially more than she spends on living expenses, she will suffer a negative economic impact under the support guidlines which only allow for payment of expenses rather than lost income. This is unfortunately unavoidable under the current wording of the statute.
In determining what living expenses are reasonable and necessary, other sources of income available to the birth mother should be considered. This includes welfare monies, food stamps, disability payments, and other forms of public assistance.