During the next decade, at least 125,000 children will become orphans of the AIDS epidemic and will need to be cared for by family members, caring adults or extended family members, or be placed in foster care. The movement toward greater disclosure of an adoptee's medical history reveals an almost complete failure to address the HIV/AIDS epidemic in this area. The adoption process does not provide a specific time when an adoptee's medical conditions are to be disclosed to adopting parents. Although the adoption process did not always serve the child's best interest, today disclosure decisions pertaining to adoption are made in accordance with the "child's best interests" standard. Initially, disclosure of HIV/AIDS does not appear to fit neatly into the current standard of acting in a child's best interests. However, the author's proposed statute brings elements of fairness and equity to the adoption process when HIV/AIDS does become a factor. The fear of failing to place children in homes forms the backbone of arguments offered by the proponents of nondisclosure. For example, disclosing a medical history may result in stigmatization and render a child "unadoptable." On the other hand, disclosure advocates claim that withholding background information could physically or mentally harm the adoptee. They further argue that broad disclosure permits pre-emptive treatment of a medical condition and prevents the financial and emotional devastation to the adoptive parents and adoptee when undisclosed circumstances cause an adoption to go awry. The majority of states that have amended their adoption statutes to permit greater disclosure did so prior to the advent of HIV/AIDS. In addition, the common law decisions involving adoption agency malpractice were drafted before the full extent of HIV/AIDS was understood. The primary deficiency in the adoption statutes is their silence on HIV/AIDS disclosure. Most AIDS confidentiality laws implicitly recognize the rights of prospective parents to discover the HIV status of an adoptee pursuant to a court order. Thus, if an order is granted by a showing of good cause, then the AIDS Confidentiality Act, a vehicle originally created to protect HIV test results, would become the very means of disclosing them. The comment proposes elimination of the possibility of a court order to disclose a newborn's status and believes that it would shield adoptees from unfair stigmas associated with HIV tests. The common law cause of action for adoption agency malpractice injects elements into the HIV/AIDS equation that raise critical concerns about the substantive law and its pragmatic effects. First, the common law is too broad and does not focus on HIV/AIDS. Second, the law does not address the crucial timing of HIV/AIDS disclosure. Third, the law perpetuates litigation and results in adoption law moving away from statute, its originally intended regulator. The need for a distinct, comprehensive HIV/AIDS adoption policy arises from the conflict among statutes governing adoption, the common law and AIDS confidentiality laws. The comment's proposed statute would make it mandatory to have all babies designated for adoption to be tested immediately or reasonably soon after birth, and then once more after his or her eighteenth month. Thus, the follow up exam keeps prospective parents from adopting a child under false pretenses.
Charles Chejfec, Disclosures of an Adoptee's HIV Status: A Return to Orphanges and Leper Colonies?, 13 J. Marshall J. Computer & Info. L. 343 (1995)