Infant Adoptions: Know the Hospital’s Discharge Policy

Under Pennsylvania adoption law, a birth mother may not consent to the adoption of her child until at least 72 hours after birth. Hence, a birth mother may not terminate her own parental rights until at least 72 hours after birth has expired. After that time, more complex legal adoption procedures apply.

Even with an adoptive family waiting to have custody of the child, immediately following the child’s birth, there are hurdles which may stand in the way of the new born and his/her adoptive family leaving the hospital together at the time of discharge.

Visiting After Birth

When planning to adopt a newborn, one of the first things an adoptive parent should do is identify the facility where the birth mother plans to deliver and contact the hospital’s coordinator for adoptions. Find out what the policy is for interaction between the new born and the adoptive parents. For example: May you enter the delivery room? May you have access to the child in the nursery? Will you be issued a bracelet to identify yourself as the adoptive parents?

Discharge Policy

In addition, ask the coordinator about the hospital’s discharge policy. Today, most newborns remain in the hospital for a maximum of 24-48 hours. If the birth was a C-section, or involved complications, then the newborn’s stay may be for a longer period of time. Since the birth mother cannot sign a consent paper for at least 72 hours after birth, some hospitals take the position that only the birth mother may carry the newborn out of the hospital. So, what if the birth mother refuses to carry the child out of the hospital?

28 PA Code 105.25 states, in part, that: “Any individual who cannot consent to his own care shall be discharged only to the custody of parents, legal guardians, person standing in loco parentis, or another responsible party….”


If the birth mother refuses to carry the newborn from the hospital, adoptive parents may want to consider entering into a guardianship agreement with the birth mother. The agreement can be tailored to your specific situation.

Adoptive parents could add a provision to use an agreed upon third party; perhaps legal counsel can facilitate the transfer of the child at the time of discharge from the hospital to the adoptive parents. The agreement could give adoptive parents guardian rights for the new born until such time as they may successfully adopt the new born.

If you have questions about a Pennsylvania adoption, please contact the adoption lawyers at Trinity Law at