Who’s to blame when an adoption fails? In this case, a greedy matchmaker eager for a quick ‘sale.’

WEST Magazine (The Los Angeles Times)

The clerk swept the hand-held scanner over our returns, negating each onesie, binky and bottle. Beep. Beep. Beep. Beep… Soon, our $700 pile of baby gear would be piled high on the red shelves of Target’s customer service department alongside other people’s unwanted things. Beach balls. Shoes. Bad plaid.

What had gone wrong?

The birth mom was old enough to make up her mind; perhaps she knew all along that she would keep the twins. But there was an underlying problem: an unregulated matchmaking system that keeps critical information out of the hands of adoptive parents and allows birth parents to put off facing the consequences of their decisions for too long. The matchmakers belong to a cottage industry of unlicensed “facilitators” who can earn $6,000 to $20,000 per match, often just for making an introduction. Some facilitators solicit for unborn children on the Internet or in newspaper classifieds, particularly in the Midwest or South. The facilitators then arrange for a pregnant woman to sift through profiles of prospective parents. Even before the two parties meet, the meter is running.

As a consumer advocate for a decade and a half, I have led successful campaigns against insurers, HMOs, oil companies, banks and powerful politicians. The last two California governors have taken my name in vain. My wife, Michelle, a public interest and civil rights attorney, has successfully sued police departments, predatory lenders, multinational corporations and slum landlords. She was recently named one of California’s top 20 lawyers under 40 years old. Yet nothing prepared us.

On a September day Michelle and I sat on the deck of Gladstone’s, just a few yards above the sand, with Diana and her boyfriend, Tony. Tony had never seen an ocean, and we figured that the Pacific would make an impressive climax for our midday driving tour of Los Angeles. Diana, eight months pregnant, had already talked with other Southern California couples about adopting her twins. And in a few hours she had a dinner meeting booked with candidates who were just as eager as we were to sell themselves to a 35-year-old mother of seven from Milwaukee.

What could be more humbling than telling a stranger why you, of all people, should raise her child, unless it is giving up that child? There are no icebreakers for that conversation. But we found Diana easy to talk to and engaging. She told us a story, for example, about the time her boss stopped giving her and the other waitresses where she worked a discount on menu items, so she ordered a pizza from elsewhere and devoured it in view of the restaurant patrons. I remember thinking that if we got the chance to raise them, the twins would hear about their birth mom’s strong sense of right and wrong.

We also learned over a late seafood lunch that Diana and Tony had a lot in common with Michelle and me. Diana had my gift for gab. Tony and Michelle were introspective. As working stiffs, Diana and Tony respected our professional choices to represent the underdog. None of us were religious, vegetarians or Republican. We agreed on the benefits of an open adoption that would encourage the exchange of photos and maybe even visitation. Because Michelle and Tony are African American, and Diana and I white, it seemed like a perfect fit, down to the kids looking like their adoptive parents.

The conversation also turned up this: None of Diana’s seven kids lived with her. Two had been placed with adoptive families, and the other five were staying with a “friend” who had unofficially adopted them. Odd. But we chalked up the fuzzy scenario, and the string of broken matches in which Diana had been involved, to the sort of bad luck and cultural realities that had brought us all together.

By the time we dropped off Diana and Tony at the Best Western in Mission Hills, I believed that our children had found us. Diana and Tony needed a financially secure home for their sons. They had searched their hearts and arrived at a logical, compassionate conclusion. We would name one Joseph, after both our grandfathers, and the other Steven, in honor of a teenage friend who had been blinded by HMO negligence at age 2 and had fought with me for healthcare reform. On the drive home, Michelle reminded me about a couple we had met through our L.A. adoption agency who had been passed over by prospective birth mothers a dozen times. Still, to both of us, it all fit. The twins. The personalities. The next day we got our wish. Diana picked us. Under the informal tenets of private adoption, we would pay, happily so, for not only the twins’ uninsured delivery but also for Diana’s lodging, groceries, phone cards, taxi vouchers’everything an expectant mother could want.

When we decided to adopt, Michelle and I knew enough to avoid facilitators. We also intended to stay away from lawyers who base their practices on matchmaking. After a series of orientations at the nonprofit Vista Del Mar, a 98-year-old social services and adoption agency in West Los Angeles, we filled out the forms to create a profile, including a professional portrait, and anticipated a call. How long could it take? We were less particular than many couples. We would consider an infant of any ethnicity and also one with special needs, which bettered our odds. We envisioned a student too young to care for a child finding their way to Vista. Or a mother who decided to leave her newborn at the hospital.

Instead, when my phone rang on a workday afternoon about three months into our wait, a Vista social worker named Amy gave me a quick rundown on Diana and Tony. She said an attorney had called the agency seeking referrals to prospective parents. He had been contacted by Diana’s facilitator after her initial match fell apart. Amy openly presented the risk’the unknowns of the broken match and the expense of multiple matchmakers. If we wanted to proceed, I should call the attorney.

Adoptive parents often hire a facilitator or attorney to connect them to a potential birth mom. In California, anyone who obtains a business license and posts a $10,000 bond can call themselves a facilitator and collect a fee to make a “match,” which is nothing more than a verbal commitment to proceed toward adoption. If a match fails, a facilitator can bring the same birth mom to another couple and collect yet again. Because the term “match” is so squishy, it’s impossible to track results. But some prominent adoption attorneys believe that about half of facilitator-based matches fail, a far greater number than those involving licensed adoption attorneys or agencies. Diane Michelsen, past president of the Academy of California Adoption Lawyers, estimates that only a third of the facilitated matches occurring in the first trimester succeed. That’s a staggering figure given the life savings’typically anywhere from $17,000 to $25,000 for a private adoption’on the line.

Knowing only some of the dangers at the time, I immediately called the attorney. He seemed caring and nice enough, but I detected a “quick sale” urgency in his voice as he described Diana’s situation, which included other broken matches with a good reason for each. I took notes: “Good-looking couple; has been honest re drug and alcohol; open, honest person; likes people; major thing: she cannot afford kids; has 7 kids; smoked; career waitress; not much prenatal care; placed two other kids for adoption.”

It was clear why the attorney and facilitator were offering to slash their fees by $7,500. Without a match, they would get stuck with bills for the hotel, meals and for Diana’s airfare back to Wisconsin if the match didn’t work out. After answering my questions, the attorney asked if I wanted to meet Diana. I said I first needed to discuss it with my wife, thinking she might want a say in adopting twins. That’s when the awkward pause came. Diana was like a hot Hollywood script, generating a wave of hurried phone calls. By the time I called back less than two hours later, she had gone with another couple. I was floored. Three days later, though, Diana was a free agent again and in the back seat of our Infiniti pointed toward Gladstone’s.

Michelle and I promptly moved Diana to the Farmer’s Daughter hotel on Fairfax, next to my wife’s office and close to our house, so we could take care of her. We also went to see the attorney at his Los Angeles office and forked over $3,500 to cover his fee and added $500 for Diana’s pocket money. We also paid the entire tab for the Best Western. The attorney took his check and asked us about signing a contract with the facilitator. We balked. Paying a lawyer was one thing. We understood his professional obligations and critical role in finalizing the adoption. But binding ourselves to a facilitator was another matter.

The facilitator never provided services such as “General Outreach and Advertising,” as her contract stated, to scour the country for our child. She never shared with us anything more than an application form and limited medical information that had already been prepared for another of her paying clients. She merely’probably desperately’sought us out through the attorney and Vista. We had, in effect, bailed her out. I told the attorney that I would settle directly with the facilitator after determining the value of her services and Diana’s costs.

The U.S. adoption system relies mainly on the courts for oversight. When you decide to adopt through a public or private channel, a social worker checks for any malfeasance during a “home study.” A judge eventually reviews the paperwork and poses for a photo with the new family. In between, unless you seek a foster child under the county’s care, the “market” bustles with profiteers. It’s illegal to buy a baby, though, so an attorney or adoption agency monitors the process to ensure that every dollar spent relates directly to the care of mother and child except, of course, the facilitator’s fee.

When Diana hinted that she’d like a hotel upgrade, Michelle and I moved her into the upscale Oakwood complex in Marina del Rey just blocks from the beach. We paid for groceries, toiletries, clothes, a foot spa, prescription salve for a raging skin rash, and for the drilling and filling of cavities long neglected. After work, we took her out most nights to the Cheesecake Factory, Johnny Rockets, Marie Callender’s, Buca di Beppo. Then we’d do her food shopping and errands. With the third trimester ticking away, we wanted the time with Diana to discover stories to some day tell the children. As much as she kept us jumping, we knew that her burden dwarfed ours.

Still, each answered request generated another. Fix the screen door of the apartment balcony. Move the bed. Pick up pancake mix. Drive to the Hollywood Wax Museum. Procure art supplies for pictures to send home to the kids. We complied, some days on an hourly basis, even as the one critical thing on our own to-do list went undone. We wanted Diana to sit down with a Vista social worker to outline the logistics of the delivery and handoff of the babies at Cedars-Sinai. This is protocol, a task long overdue. In making a hospital plan, a mother begins to visualize physically letting go of her children. Would she hold them or not? But Diana canceled her first appointment and, despite the open tab that Michelle had set up with a cab company, continued to delay the visit. When she finally did show, she left without a plan.

Diana went into labor on Oct. 5, 2002, 20 days and about $12,000 after our first meeting. Michelle and I were not invited to the $3,500 prepaid delivery, but we soon learned from our attorney that Diana did in fact have a plan: return to “her apartment” with the twins and spend “some time” pondering what to do next. Our attorney earned every penny we had paid him when he visited her the next morning to disabuse her of that idea. When Michelle and I went to Oakwood later that day to gather Diana’s things for her, we discovered a bag from Goodwill. It was filled with tiny clothes. The receipt showed that Diana had visited the store on Venice Boulevard near Vista Del Mar right after her long-in-coming meeting with the social worker.

When had she decided that she was not ready to let go? Was it before we even met, or perhaps the week before the boys were born, when Michelle and I had received a call from the facilitator and hustled over to Cedars? We found Diana behind a curtain in the labor room, wearing a fetal monitor around her towering belly. We spent the afternoon at her bedside, urging her to stop unhooking the strap. We sympathized with her pain, even sneaking in a sandwich from Jerry’s Famous Deli across the street. And when what proved to be false labor subsided, I advocated for Diana’s release, just as I would for any family member. Yet she left the hospital that day convinced, wrongly, that I had presented myself to a nurse as the babies’ father. Our attorney advised us to stay away for a few days.

In retrospect, our troubles probably began earlier, when we refused Diana’s request to fly out her troubled 17-year-old daughter for the delivery. We couldn’t let a minor stay alone during her mother’s recovery in an apartment we were leasing. Or maybe even earlier, when Diana told Michelle that Tony, relaying his feelings long distance, was seriously waffling. And there was this late-breaking disclosure: Diana’s claim of Native American descent, which, if validated, would have given a tribe final say over the adoption.

Entering the hospital room to drop off her belongings, we saw the twins, unimaginably cute, with their mother. We were carrying her suitcase, bags of clothes and other things we had bought her. One baby was in her arms; the other was in a bassinet. I couldn’t bring myself to look too closely.

“They’re beautiful,” Michelle said to Diana, to no reply. “Good luck” is all I could manage.

Michelle and I still worry for Diana’s boys.

Who was to blame became the subject of many months’ conversation. The facilitator bitterly complained to me in writing: “I told you, and I still feel very strongly, that your behavior with regard to my payment, which you knew about before you took Diana on, and have neglected to pay me, and your attempts to twist this around so that you could justify your refusal to honor a commitment, is very similar to what Diana did to you at the end. It puts you in the same category as far as I am concerned. In the case of birthmothers, while they are entitled to keep their babies, when it is done the way Diana did it to you, with deception and twisting the facts, it is horrible. In their cases, this is the way they have learned to live. While it does not justify the behavior, it explains it. However, in the case of an adoptive parent who does the same thing, it is unconscionable.”

Until I received that rant, I was actually thinking of compensating her for her time. A little Internet research on her company unearthed its suspended business license for failure to meet “statutory filing requirements of either the Secretary of State’s Office or the Franchise Tax Board.” My letter seeking an explanation for that lapse was never answered. The phone number now belongs to someone else. A Vista social worker told me recently, though, that the facilitator is operating under another business name.

Motorists have more protection against dishonest auto mechanics than adoptive parents do against fraudulent adoption facilitators in California. Many states, including New York, Florida and Texas, have banned facilitators. A bid by adoption attorneys to do the same in California failed in the mid-1990s, deflected by facilitators’ lobbying. At least a bill by Democratic legislator Liz Figueroa that would require facilitators to register with the state recently passed the California Senate and could be signed by the governor this year. Ask most anyone involved in a private domestic adoption about the experience, and they will vent about the process. A friend of ours paid $54,000 for three failed matches. Her facilitator represented a Bay Area “mom” who was convicted of faking her pregnancy to scam three couples. And so on.

Two years and three months after we helped pay for Diana’s train tickets back to Wisconsin, we woke up in a foster home outside of Guatemala City. The housekeeper was yelling up the stairs, “Your baby is here, your baby is here.” At the bottom of the tiled steps, our 3-month-old son was drinking a bottle in the arms of his foster mother. His thick black hair and big brown eyes shone out at us from a bundle of blankets. Soon, we were racing with him in a black SUV toward the U.S. Embassy to straighten out the paperwork that would allow us to bring him home. He slept in the back seat, cuddled calmly on Michelle’s shoulder as we bumped along the road.

Joey, now 2, can make an awful day beautiful. He was meant to be with us. It just did not need to happen this way.