Child, Family and State

NOMOS XLIV

Stephen Macedo, Iris Marion Young

• Publisher: NYU Press
• Year: 2003
• ISBN:
  9781479892129
• Topic: Derecho
• Subtopic: Derecho de familia

In an era in which our conception of what constitutes a “normal” family has undergone remarkable changes, questions have arisen regarding the role of the state in “normalizing” families through public policy. In what ways should the law seek to facilitate, or oppose, parenting and child-rearing practices that depart from the “nuclear family” with two heterosexual parents? What should the state's stance be on single parent families, unwed motherhood, or the adoption of children by gay and lesbian parents? How should authority over child rearing and education be divided between parents and the state? And how should the state deal with the inequalities that arise from birthright citizenship?

Through critical essays divided into four parts-Adoption, Race, and Public Policy; Education and Parental Authority; Same Sex Families; and Birthright Citizenship- Child, Family, and State considers the philosophical, political, and legal dilemmas that surround these difficult and divisive questions. An invaluable resource in these contentious debates, Child, Family, and State illuminates the moral questions that lie before policymakers and citizens when contemplating the future of children and families.

PART I

ADOPTION, RACE, AND PUBLIC POLICY

1

TOWARD NEW UNDERSTANDINGS
OF ADOPTION: INDIVIDUALS AND
RELATIONSHIPS IN TRANSRACIAL
AND OPEN ADOPTION

MARY LYNDON SHANLEY

Adoption, the conscious severing of the legal ties between biologically related persons and the creation of legal ties between biologically unrelated persons, is a social practice and legal procedure that makes us consider the nature of the ties that are important to children’s identity, to family life, and to larger social groups. Although adoption is generally favorably regarded in the United States, people disagree strongly over whether children should be placed across ethnic or racial lines, and whether adoption records should be open and parties to adoption should be able to know one another’s identities or even meet. These controversies about transracial and open adoption raise issues that go beyond adoption itself. They illuminate a central dilemma in liberal political theory: Should the infant available for adoption be understood as an individual who needs to be placed quickly so that a parent-child relationship can be formed or as someone with ties to persons outside the adoptive family—genetic kin or a racial group—that deserve social and legal recognition?¹ Should a Catholic child be placed only with Catholic parents and a Muslim child only with Muslim parents? Should a black child be placed only with black parents and a Filipino child only with Filipino parents? Should adoptees have access to their original birth certificates, and should birth parents be able to know who adopted their child? I suggest that taking the child’s status as both a rights-bearing individual and a relational being into account would allow us to reframe the controversies concerning secrecy versus nonsecrecy and race neutrality versus race matching in ways that would be beneficial to all parties to adoption.

People usually think of family ties as created “by nature”: the dominant cultural image of family in the United States consists of a heterosexual couple and their offspring (even though such households are not in the majority). Except for the choice of whom to marry, people do not usually choose their relatives, whether parents, children, siblings, aunts, uncles, nieces, nephews, grandparents, or grandchildren. Adoption complicates this picture by suggesting both that family ties can be severed and that the parent-child bond as well as the marital bond can be assumed voluntarily. Adoption concerns both ending an existing set of relationships or potential relationships and establishing new ones. In addition to these biological ties, adoption may remove a child from parents of one religious, ethnic, or racial group and place him or her in a family with different identities and social ties.

The tension between framing adoption policy to reflect the child’s status either as a freestanding individual or as a person to whom these biological and social relationships are of continuing significance infuses the debates about both secrecy and transracial placement in adoption. Proponents of secrecy in adoption tend to regard the infant as an “unencumbered individual” whose primary need is the establishment of strong parent-child bonds. They worry that unsealed records and open adoption suggest that the biological tie is in some way defining of who a person is and may impede the forging of strong relationships in the adoptive family.² People who advocate doing away with secrecy argue that knowledge of the genetic link between biological parents and child is part of the identity of both the biological parents and the child, and must not be permanently inaccessible to either.³ Advocates of race-blind placement, for their part, argue that an infant awaiting adoption should be treated as an unencumbered individual who should be placed without regard to race so that neither child nor adoptive parents will experience discrimination. They contend that children’s primary interests are in rapid, permanent placement regardless of race and that even when race matching causes no delay it is a capitulation to a kind of biologism that flies in the face of equal treatment for every individual.⁴ Opponents of transracial placement insist that being a member of a racial minority gives the child an interest in being raised by others of that minority and gives the group an interest in raising the child.⁵

Although these issues of adoption policy involve assertions about the rights of birth parents, adoptive parents, minority groups, and children alike, it is the child who should be at the center of discussion.⁶ The purpose of adoption is to provide care to children. Children have not only physical needs for food, shelter, and clothing, but also psychological needs for love and permanence. Emotional security is perhaps the most important component of successful identity formation. This need argues for timely and permanent placement with parents who not only regard themselves as entitled to act as the child’s parents, but are supported by law and social practice in their caregiving efforts. In addition, children benefit from information about their origins, and the formation of their religious, racial, cultural, and ethnic identities may be facilitated by knowledge of their birth parents. Although arguments for the preservation of these ties are often made in the name either of birth parents’ right to knowledge of their child or of a group’s right to keep the child as a member of that community, the more important claim is that of the child. It is the child’s multiple needs for security and identity that should engage those trying to deal with the tension between regarding the child as an unencumbered individual or as an embedded self with ties to individuals and groups that require legal recognition.

Giving priority to children and their needs does not in itself, however, provide unambiguous answers to the questions of whether adoption records should be open or closed or whether placement should be made across racial lines. Transracial adoption pits values of equality against community, interracial community against multiculturalism, and individuality against racial-ethnic community.⁷ Disputes about secrecy pit values of privacy against those of knowledge and freedom of information. All of these values are fundamental to pluralist democracy in the United States. The complex moral and policy issues involved in open and transracial adoption are, in Janet Farrell Smith’s words, “not resolvable without remainder.” That is, in situations involving “a complex set of conflicting practical demands, each tied to a set of apparently morally reasonable supports, taking up one of these positions will not nullify moral demands of the alternatives not taken.”⁸ But in the real world where all of us must act, we cannot avoid judgments and policy choices that will favor one side or the other. For example, the law will either prohibit or allow disclosure of identifying information about the parties to an adoption; and the law will either prohibit or allow placement of children across racial lines.

While the existence of such intractable issues may force recognition of a moral remainder, it may also suggest the desirability of reconfiguring the discourse and policies surrounding adoption to minimize the conflict between values. Two shifts have emerged in the discourse and practice concerning adoption that point to the possibility of reframing the way we talk about adoption to reflect the child’s status as both a rights-bearing individual and a relational being with links to biological relatives and social groups. One is the shift away from trying to make the adoptive family an “as if” family, one in which the children from all appearances might have been born to the parents, to recognizing the adoptive family as different from the biological family and valid on its own terms. Replacing the “as if” model of the adoptive family with that of a more complex family structure might increase respect for a variety of family forms, including blended families, single-parent families, and gay and lesbian families. The other shift in the discourse on adoption is away from regarding the child available for adoption as a “parentless” child, often as one “abandoned” by the original parents, to recognizing the significance of the original parents in adopted children’s construction of identity. This change might increase respect for birth parents, particularly birth mothers, who release a child for adoption.

I begin the exploration of these issues in Section I by giving a brief overview of the history of adoption policy and law. I show the ways in which traditional practice tended both to construct the adoptive family as an imitation of the biological family and to treat the child awaiting adoption as a “parentless” individual. In Section II, I discuss the ways in which the effort to create “as if” adoptive families shaped policies regarding both secrecy and same-race placements and how those policies might be changed. In Section III, I examine how policies concerning secrecy and transracial placement reflected the notion that the child available for adoption was now “parentless,” and I suggest ways those policies might be changed. In Section IV, I use the discussions of the “as if” adoptive family and the “parentless” child to develop policy positions concerning nonsecrecy and race-neutral placement. I suggest that nonsecrecy—achieved through adoption registries, unsealed records, or full or partial “open adoption”—should be the rule rather than the exception in adoption. Although some regard public recognition of both sets of parents as a capitulation to biologism, I believe that it need not blur the distinction between biological and social parenthood or undermine the custodial authority of the adoptive parents. I also suggest that since the birth parents are the concrete link between child and racial group, the birth parents’ understanding of their racial identity and its meaning to them are relevant to the question of whether a specific child should be placed across racial lines. Attention to the wishes of birth parents, often in fact only the birth mother, is a way to counteract the disparagement of women (particularly women of color) who place their children for adoption. Policies and practices surrounding adoption cannot eliminate, although they can reduce, the tension between regarding the child as an autonomous individual and as a person shaped by personal and social relationships. While that tension is particularly striking in adoption and other areas of family law, it is an ineradicable part of all law that strives to foster freedom and individualism as well as commitment and communal ties.

I. TRADITIONAL POLICY AND PRACTICE SURROUNDING ADOPTION

In the United States until the mid-nineteenth century the biological tie was a necessary, if not a sufficient, condition for gaining legal recognition as a child’s parent. But while adoption statutes in the nineteenth century and new reproductive technologies in our own day have made the disaggregation of genetic and social parenthood seem like a relatively recent development, legal convention, and not biology alone, has always determined who would enjoy status as a legal parent. As Thomas Hobbes pointed out, while maternity could be observed at the time of parturition, knowledge of paternity depended on the not always reliable word of the mother.⁹ Bastardy laws proclaimed that biological fathers would be recognized as legal fathers only if they were married to the mother of their child. Not all women who gave birth were regarded as legal mothers of their offspring: slave mothers (along with slave fathers) did not have parental rights.

The creation of legal adoption in the mid-nineteenth century was a radical innovation because it dissolved the “natural” (blood) ties that bound families together and replaced them with “artificial” (legal) ties of kinship.¹⁰ Although members of a child’s extended family sometimes adopted the child, the paradigmatic model of formal adoption was “stranger adoption.” In the American understanding of kinship, according to anthropologist David Schneider, “family” is constituted by biological parents and their child, and

[t]he relationship which is “real” or “true” or “blood” or “by birth” can never be severed, whatever its legal position. Legal rights may be lost, but the blood relationship cannot be lost. It is culturally defined as being an objective fact of nature, of fundamental significance and capable of having profound effects, and its nature cannot be terminated or changed.¹¹

Statutes allowing legal adoption disrupted this traditional understanding of the indestructible and involuntary nature of family bonds by severing the legal tie between original parents and off-spring and then by creating a new legal tie by convention and choice.¹²

But although adoptive families were created “artificially” by a legal procedure, from the mid-nineteenth to the mid-twentieth century most adoptive families were constructed in such a way as to give the appearance that they had resulted from sexual relations between the parents. Parents were of the age to have borne the child and were of the same race and often the same religion as the child’s biological parents. The dissolution of the child’s legal ties to its original parents made possible the “construct[ion of] the adoptive family as an ‘as-if’ biological family, reflecting the deeply embedded notion in the ideology of American kinship that the only ‘real’ relation is a blood relation and, by extension, the only experience of authentic identity is bestowed by blood ties.”¹³ In line with this cultural belief, adoption laws were designed to make adoptive families imitate nature.

Adoption statutes rested upon an individualistic and voluntaristic understanding of family ties that permitted the legal bond between biological parents and offspring to be severed and another legal bond between adoptive parents and child to be formed through the consent of both sets of parents. The creation of an “as-if” adoptive family thus incorporated a model of the individual and social ties consonant with the assumptions of liberal individualism and liberal political theory. Infant adoption, in particular, seemed to rest on the notion that at least for a brief period after birth, the child could be regarded as an individual who could be moved from one family to another and could be expected to take on an identity shaped by the roles, status, and obligations that membership in the new family entailed. Adoption discourse focused on the right of the child to a permanent home and the obligation of the state to protect the child by placing him or her with adults who were financially and emotionally capable of providing care. The intermediary role performed by the adoption agency that accepted the child from the birth parents and then placed the child with adoptive parents reflected the fact that for a moment the child was a ward ...