Madelyn Freundlich. Handbook of Adoption: Implications for Researchers, Practitioners, and Families. Editor: Rafael A Javier, Amanda L Baden, Frank A Biafora, Alina Camacho-Gingerich. Sage Publication. 2007.
Adoption is both a social and a legal process. The legal process of adoption in the United States has evolved over time from a largely informal process to a process that is now regulated by states and the federal government and that is internationally regulated by the Hague Convention on Intercountry Adoption. Both domestically and internationally, there have been significant developments in adoption law. Nonetheless, challenges remain regarding many aspects of adoption law. This chapter briefly examines the major legal developments in adoption in the United States and the areas in which law continues to evolve. A legal history timeline is presented at the end of this chapter. Readers may find this visual a helpful guide as they move through this chapter.
Origins of Adoption Law in the United States: Colonial Times Through the Late 1800s
Adoption laws in the United States may be seen as having stronger roots in Roman law antecedents than in English common law principles (Huard, 1956). Under English common law, adoption was not formally recognized, whereas under Roman law, adoption was used for inheritance purposes. Under Roman law, families that lacked a male offspring were permitted to bring male strangers, typically adults, into their households and designate these individuals as their lawful heirs (Hollinger, 2002a). These adopted individuals then became members of their new families with no ties to their birth families. The goal of adoption in Roman society was to continue family lines, thereby principally serving the interests of the adoptive families (Kempin, 1963). The adopted adult, however, benefited through receipt of his adoptive family’s property and status (Kempin, 1963).
English common law, by contrast, did not embrace adoption, largely owing to the strong English commitment to blood lineage as the basis for differentiating class and social status (Presser, 1971). Nonetheless, English courts recognized “quasi-adoption” arrangements that later influenced the development of adoption law in the United States. These arrangements included wardships and guardianships designed to protect or provide support for orphaned children, apprenticeships to provide children with a trade, and other arrangements intended to discipline or otherwise train the children of families who were subject to the English poor laws (Hollinger, 2002a).
Because the social climate in the United States differed significantly from that of the United Kingdom, adoption law developed in a very different environment. The absence of a formal class structure in the United States and the widespread pursuit of social and economic mobility allowed for a broader acceptance of the “taking in” of children. In the 1880s, religious and moral concerns regarding the welfare of children and economic interests merged in the United States, and efforts were initiated to find ways to support dependent children beyond the poorhouse or apprenticeships for learning a trade (Leiby, 1978). As concerns about the welfare of children coincided with the interests of some adults in bringing unrelated children into their homes, the first state statutes appeared that legitimated the many informal transfers of parental rights that had been occurring since the colonial era (Hollinger, 2002a).
The adoption statutes that appeared in the 1850s and 1860s in the United States, however, did not establish adoption as a legal relationship. Instead, they simply recognized the informal transfers of children to relatives or strangers by poor parents or by institutions that had assumed responsibility for the care of children (Hollinger, 2002a). These arrangements typically involved agreements that the child would provide farm or domestic services for the family and that the family would support and educate the child and include the child as an heir to the family’s property. Without a formal will that designated the child as an heir, however, informally adopted children had no legal claim to the deceased adult’s estate. As the number of informal adoptions increased, the number of probate court disputes increased as well, leading to efforts to provide for the legal recognition of adoptive relationships (Presser, 1971). Because interest was primarily on property ownership, the inheritance rights of adopted children were the focal point of these early adoption statutes (Cahn & Hollinger, 2004).
Several states enacted adoption statutes in the mid-1800s, including Mississippi (1846), Texas (1850), and Massachusetts (1851). Some of these statutes merely provided a procedure for recording private agreements, focusing on the “adoption” of an individual child through legislative petitions (Cahn, 2003). The Massachusetts statute, however, established the principle of judicial oversight of adoption and, as such, is considered the first modern adoption statute. The Massachusetts statute provided that an individual adopted through judicial proceedings was a child of the adoptive parents “to all intents and purposes,” and it provided that the child was entitled both to parental support until he reached the age of majority and to a share of the parent’s estate (Presser, 1971). The statute also contained provisions that were forerunners of modern adoption law: a requirement of written consent of the child’s parent(s), a requirement of consent of the child if he or she was 14 years of age or older, the necessity of joining the adopter’s spouse as a party to the adoption, the need for the judge to assess the suitability of the prospective adopters, and the termination of the biological parent’s rights and responsibilities for the child (Cahn, 2003; Hollinger, 2002a). Later, California (1872) and New York (1873) enacted adoption statutes that contained similar provisions. These laws, although not specifically grounded on the needs and interests of the child, set the stage for the later development of the principle of “best interest of the child” (Grossberg, 1985; Peck, 1925).
The Continuing Evolution of Adoption Statutes: 1850 Through the 1930s
Between 1850 and the 1930s, formal adoptions began to take place, although in a social and economic climate that differed greatly from the current adoption environment. During this era, many of the children who were likely to be “adopted” resided in publicly supported institutions that were empowered to “bind out” indigent children to unrelated families through indenture or “adoption” (Cahn, 2003; Ross, 2004). It was within this context that state statutes were enacted. These statutes, however, broadly incorporated certain concepts in elementary form that more fully characterize adoption law and practice today: the concept of parental consent to adoption, recognition of the principle of “best interest of the child,” the relationship between the child and the biological family after adoption, the status of adoption records, and the nature of adoptive relationships (Grossberg, 1985; Leiby, 1978).
The adoption statutes during this period recognized the need for parental consent but did not specify when consent should be given or how. There were few procedures in place to ensure that parental consent was informed and voluntary, and parents were rarely represented by attorneys. When children were born to single mothers, only the mothers were required to consent to the adoption. Unmarried fathers played no role in adoption unless they were themselves adopting the child, or in a very rare case, they formally legitimated the child. Some statutes dispensed with parental consent under certain conditions: The parent had abandoned the child, was mentally ill, had maltreated the child, or was “morally depraved” (Hollinger, 2002a). In many cases, adoptive parents simply represented these facts to courts that accepted the explanation of abandonment, parental death, or incapacity without further inquiry. Procedures for review of parental consent were even more minimal when institutions placed children for adoption. Negative societal views of poor parents who placed their children in institutions as morally and personally lacking enabled institutions to elude judicial scrutiny of the adoption arrangements for children placed in these facilities (Ross, 2004). During this period, state statutes did not address the rights of birth parents to revoke consent to adoption or to reclaim their children from the institutions in which they had placed them. Few parents attempted to do either, as most lacked the resources or knowledge to regain custody of their children (Peck, 1925).
With regard to the concept of “best interest of the child,” state statutes enacted during this period generally required that adoptive parents be determined to be suitable and that the “moral and temporal” interests of the child be served through adoption (Hollinger, 2002a). These requirements typically existed more in form than in substance. Suitability of the adoptive parents, if addressed at all, largely was a question of the prospective adoptive family’s financial means, and the “best interest” of the child was principally viewed in economic terms. The one noneconomic criterion that factored into placement decision making was the religion of the child and the adoptive family (Hollinger, 2002a). The religion of many children, however, was not known, and consequently, the preference for same-religion adoptive parents usually translated into an institution’s or agency’s preference for families of the same religion as the religious affiliation of the institution or agency (Hollinger, 2002a). During this period, judicial oversight of the suitability of adoptive parents, whether determined on economic or other grounds, was largely “ministerial” rather than “judicial,” with the proceedings simply validating an already accomplished transfer of the child to the family (Parker, 1927). In the case of institutions and other child-placing agencies, the routine placement of children with families continued with little judicial oversight.
The latitude of child-placing agencies during this era is illustrated by the freedom with which Charles Loring Brace of the Children’s Aid Society gathered up children he described as “street Arabs” from the streets of New York City and dispatched them via “orphan trains” to the Midwest and West to provide agricultural and other labor for families who took in the children (Brace, 1872; Ross, 2004). These children were rarely formally adopted by their “adoptive” families, and there was little, if any, court oversight of this practice (Hollinger, 2002a; Ross, 2004). In the early 1900s, social reformers such as Julia Lathrop (who became the first director of the U.S. Children’s Bureau) attacked the orphan train movement and the failure of the society to screen the families with whom children were placed and monitor the welfare of these children after families took them in (Folks, 1902). As criticisms mounted and efforts intensified to create the forerunner of modern foster care, the practice of “boarding out” the orphan train practice eventually came to a close (Folks, 1902).
Although the statutes during this time period allowed children to be adopted by families selected by birth parents or by child-placing agencies, they did not penalize the practice of placing children for profit or the placing of children without a judicial proceeding, nor did they address the activities of unlicensed agencies in placing children for adoption (Hollinger, 2002a). Baby-selling scams, as well as questionable placements of children with families as laborers, were well-known, but the law did not respond either to punish the individuals and agencies engaging in these practices or to attempt to prevent such activities in the future (Hollinger, 2002a).
This era also saw growing attention to, but continuing ambiguity about, the nature of the ongoing relationship between the child and his or her biological family. The concept of exclusivity—that is, that adoption ends all ties between the birth family and the child and the adoptive family becomes the child’s family—was not fully embraced. Under the law, for example, adopted children could inherit from their birth parents if the birth parent died intestate. There continued to be disputes as to whether a child was the child of the adoptive family “for all intents and purposes” in connection with distribution of the adoptive parent’s property at time of death. Similarly, courts were divided as to whether, if the adoptive family became destitute, the birth parents could be required to support the child whom they had placed for adoption. As late as the 1930s, in about half of the states, there was uncertainty about the child support obligations of birth parents under these circumstances (Hollinger, 2002a).
The statutes enacted during this era did not provide for the confidentiality of adoption records. Adopted persons could readily obtain their original birth certificates if they existed. To the extent that information about an adoption was protected, barriers to information access were designed to maintain the privacy of the arrangement from the public, not to shield adoption information from the parties to the adoption (Samuels, 2001). If information was not shared among the parties to the adoption, it was usually the result of incomplete records. By the 1930s, however, confidentiality provisions had begun to be included in some states’ adoption statutes (Samuels, 2001). Before 1930, for example, birth certificates were not amended when a child was adopted; during the 1930s, states began to provide new birth certificates for children, substituting the adoptive parents’ names for birth parents’ names (Samuels, 2004). Paralleling this legal development were changes in the practice of some child-placing agencies, both reputable and not reputable, with regard to information access. With increasing frequency, it was reported that agencies threatened single pregnant women that their privacy regarding their pregnancies would not be honored unless they placed their babies for adoption (Hollinger, 2002a). At the same time, it was reported that agencies promised prospective adoptive parents that their identities would be withheld to attract families to child-placement agencies and away from the direct placement of children by their birth parents (Hollinger, 2002a). These practices, though of concern, did not trigger a legal response.
Finally, the statutes during this era were not clear about the duration of an adoption. Although adoption was presumably permanent, many statutes allowed adoptions to be overturned on a number of grounds: for example, if the adoptive parents did not support the child, if the child was “unruly” or “willfully disobedient,” or if the adoptee became insane or epileptic as a result of factors that existed before the adoption but which were not communicated to the adoptive family (Zainaldin, 1979). The New York State statute, for example, provided that adoptions could be annulled for “any misdemeanor or ill behavior” on the part of the child, a provision that reflected the prevailing legal ambivalence about the actual permanency of adoption (Hollinger, 2002a).
The Development of the Modern Statutory Framework for Adoption: 1930s to Present
Beginning in the 1930s, adoption law began to emerge in fuller form. By this point in time, adoption had become a more broadly accepted form of family formation, and the courts and social workers had come to recognize the need to work cooperatively to ensure that adoptions were properly arranged (Hollinger, 2002a). The concept of “best interest of the child” broadened beyond economic well-being to include social and psychological well-being, and with this fuller concept of “best interest,” a number of key changes occurred in adoption law and practice.
Among the key developments after 1930 was the inclusion in state statutes of provisions designed to ensure greater oversight of the entities that placed children with adoptive families. Beginning in the 1930s, states began to enact legislation that required state licensing of child-placing agencies and the maintenance of records on the children who were placed for adoption. State legislatures also began to enact laws that required formal home studies of prospective adoptive parents that extended beyond an inquiry into financial solvency, and state laws incorporated stronger procedures regarding the taking of consents for adoption (Zainaldin, 1979). Courts also began to interpret existing statutes to ensure that the interests of children were met. With that development, the “best interest of the child” standard began to take root, and views of adoption as both exclusive and permanent came to be accepted (Hollinger, 2002a).
After 1930, state statutes, in fairly rapid order, were enacted to require the sealing of adoption records beyond the earlier dictates designed to protect adoptions from public scrutiny. These new laws prevented the disclosure of adoption information among the parties themselves, with records to be opened only on a showing to the court of “good cause.” By the 1960s, court records regarding adoption were closed to all persons in all states but Kansas and Alaska, which did not, at any point, close adoption records to the parties to the adoption (Samuels, 2004).
As in previous eras, reports of baby-selling scams continued to be periodically exposed with resulting public outrage. In 1955, Senator Estes Kefauver conducted a congressional investigation that denounced “baby selling” as a national disgrace and revealed a number of egregious cases of intrastate and interstate trafficking in children (Zelizer, 1985). It was only in the 1950s that state statutes were enacted to penalize the illegal procurement of children and illegal advertising of children (Hollinger, 2002a). The efficacy of these statutes, however, remained highly questionable, an issue that has persisted to the current day.
By the 1940s and 1950s, the general statutory framework for adoption laws had been set, but the specifics of that framework varied significantly from state to state. Although state statutes embodied common themes and, in some cases, states used the same legal approach to certain issues, state adoption laws generally lacked uniformity and courts’ interpretations of state laws did not necessarily coincide (Hollinger, 2002a). This lack of uniformity continues to the present day. State statutes govern the relinquishment of children for adoption, the assessment of prospective adoptive parents, who may place children for adoption (and who may not), fees and expenses for adoption, the circumstances under which an adoption can be overturned, and the procedures for finalizing adoptions. How they do so, however, varies considerably.
Since the 1950s, there have been several efforts to achieve greater uniformity in state laws that govern adoption, but each effort has failed. Two Uniform Adoption Acts (UAAs) were proposed by the National Commission on Uniform State Laws, one in 1951 and another in 1994 (Hollinger, 1995). The more recently proposed UAA incorporated a range of provisions governing legal protections of children, birth parents, and adoptive parents, some of which met with broad support and others, such as the sealing of adoption records for 99 years, which became the subject of bitter debate (Hollinger, 1995). As of the writing of this chapter, no state has embraced the 1994 proposed UAA in full form. Similarly, two other efforts were unsuccessful in the 1980s to bring uniformity to states’ adoption laws: (1) an effort on the part of the U.S. Department of Health and Human Services (then the Department of Health, Education, and Welfare) to develop a comprehensive model state adoption statute and (2) an effort on the part of the American Bar Association Family Law Section to draft a Model Adoption Act (Hollinger, 1995).
Continuing Legal Developments in Adoption
A number of themes characterize the legal history of adoption as the law has evolved since the 1930s and into the present. These themes include an increasing federal presence in adoption, better coordination of state-to-state activities regarding adoption, regulation of international adoption, clarification of postadoption rights and responsibilities, and the rights of nontraditional families to adopt.
An Increasing Federal Presence in Adoption
Adoption, as the early legal history indicates, has been the prerogative of states in the United States. Federal courts, however, have become involved in adoption with regard to the constitutional rights of birth parents, and since 1978, federal law has addressed the foster care and adoption programs of public child welfare agencies.
Federal Courts and the Constitutional Rights of Birth Parents
As state adoption law evolved, the rights of birth mothers to consent to adoption were clearly addressed in statute. Under all states’ laws, a woman who gives birth to a child is considered the child’s legal parent and is fully entitled to give or withhold consent to her child’s adoption. As the law evolved, however, the rights of birth fathers to consent to their children’s adoptions either were not clearly articulated in states’ statutes or were expressly negated. Federal courts have played a key role in defining the scope of adoption law with respect to constitutional claims by birth fathers that they were improperly denied their rights to due process of law and equal protection in giving or withholding consent to their children’s adoptions (Meyer, 1999).
The U.S. Supreme Court has decided five cases in the area of the rights of birth fathers. In 1965, the Court considered the first such case, Armstrong v. Manzo. In this case, the father of a child born while the father was married to the child’s mother attempted to set aside an adoption decree that allowed the former wife’s new husband to adopt the child. The Court held for the first time that a father was denied due process of law when he did not receive notice of the adoption proceedings and further ruled that the burden was on the stepfather, not the father, to prove grounds for terminating the father’s rights.
The remaining U.S. Supreme Court cases addressing the rights of birth fathers involved claims by unmarried birth fathers. Until the early 1970s, many states’ statutes excluded unmarried fathers from the group of parents whose consent was necessary for a child’s adoption and accorded unmarried mothers rights that were denied to unmarried fathers (Meyer, 1999). This practice spawned a number of challenges to state laws in federal courts, four of which were ultimately decided by the U.S. Supreme Court. In Stanley v. Illinois, decided in 1972, the Court ruled that state statutory presumptions that an unmarried father was unfit to parent violated the U.S. Constitution on due process and equal protection grounds. In Quillon v. Walcott, decided in 1978, the Court made clear that not all fathers, however, were entitled to constitutional protections. In this case, the unmarried father had sporadically visited his son but had not taken steps to legitimate the child. When the mother married and her new husband sought to adopt the boy, Quillon sought to prevent the adoption, claiming that there was no evidence of his parental unfitness. Finding that Quillon had not “shouldered significant responsibility with respect to the daily supervision, education, protection and care of his child” (434 U.S. at 256), the Court ruled that he had failed to use his opportunity to have a meaningful relationship with his child and, consequently, was not entitled to constitutional protection of his asserted parental rights.
One year later, in Caban v. Mohammed, the Court ruled that a New York statute that gave unmarried mothers but not unmarried fathers the right to consent to or withhold consent to their child’s adoption was unconstitutional. Caban was an unmarried father who was recorded as the father of his children on their birth certificates and who had shared custody of his children until their mother separated from him. Her new husband sought to adopt the children and Caban objected on equal protection grounds—that an unmarried mother had the right to withhold consent to adoption but an unmarried father had no such right. The Court agreed with Caban and ruled that when an unmarried father has shown a significant paternal interest in his child, denying the right to consent or withhold consent to an adoption violated his equal protection rights.
Finally, in 1983, in Lehr v. Robertson, the Court examined the new statutory scheme enacted by New York State after Caban v. Mohammed, and held that the unmarried father had failed to meet any of the statutory provisions that would render him eligible for notice of an adoption proceeding. His name was not recorded on the child’s birth certificate, he had not lived with the mother and child after the child’s birth, and he had not offered marriage to the mother. The court held that the “mere existence of a biological link does not merit equivalent constitutional protection” as that provided to unmarried fathers who had a “developed” relationship with and “full commitment” to their children (463 U.S. at 262).
Since these cases were decided, most states have amended their statutes to accord greater recognition to the rights of birth fathers. Because the Court has ruled on the rights of birth fathers in only five cases, none of which involved the adoption of a newborn or the adoption of a child by a party other than a stepparent, however, there continue to be many unanswered questions regarding the legal rights and responsibilities of unmarried fathers. These questions include the status of an unmarried father of a newborn placed for adoption, the rights of fathers whose efforts to have a relationship with their children have been thwarted by the birth mother or the adoption agency, and the rights of unmarried fathers who receive no notice of the child’s birth.
Federal Law and the Adoption of Children in Foster Care
Since the late 1970s, federal law has recognized the value of adoption for children in foster care and has addressed various aspects of adoption practice on behalf of children in the custody of states’ foster care systems. The provisions of federal law that address adoption issues, however, have taken a variety of forms (Garrison, 1996).
In 1978, Congress enacted the Indian Child Welfare Act (ICWA), the first major federal law that addressed adoption. ICWA was enacted following a series of congressional hearings that documented the pervasive, unwarranted removals of Native American children from Native families and tribes, the serious psychological and social consequences for Native children and families as a result of these practices, and the near decimation of some tribes as a result of these removals (Freundlich, 2000). Of great concern to tribal communities and to Congress were the large numbers of Native children being freed for adoption and placed with non-Native families (Indian Child Welfare Act, Section 1901). ICWA, in making clear that priority was to be placed on a Native American child’s cultural heritage and tribal identity, created an adoption placement hierarchy: A child is first to be placed with a member of the child’s extended family, second with another member of the child’s tribe, and third, with another Native family (Indian Child Welfare Act, Section 1915(a)). A court, however, may override the statutory placement hierarchy on a showing of “good cause” (Indian Child Welfare Act, Section 1915).
Two years later, in 1980, Congress enacted comprehensive federal legislation on foster care and adoption, the Adoption Assistance and Child Welfare Act (Pub. L. No. 96-272). That law created a far more intensive federal role in the delivery of foster care and adoption services than had previously been the case. Permanency for children in foster care became a federal public policy goal, and adoption was expressly recognized in the statute as a permanency option for children in foster care who could not be reunited with their birth families. Federal supports for adoption were created, taking the form of federal matching funds for adoption subsidies for children who met financial eligibility criteria and had “special needs” (U.S. House of Representatives, 2003).
Fourteen years passed before Congress again addressed adoption through major legislation. In 1994, Congress enacted the Multiethnic Placement Act (MEPA), which legislatively defined the role of race, color, and national origin in decisions regarding children’s adoptive placements. In a highly volatile political environment, MEPA represented a compromise between those who argued that race should not be a factor in children’s placements with adoptive families and those who argued that race was a critical factor in determining the best interests of children placed for adoption. MEPA stated that race could be one factor in decisions regarding adoptive families for children, but not the determinative factor. It further required that states diligently recruit adoptive families who represented the racial and ethnic backgrounds of children in foster care who were waiting for adoptive families (Courtney, 1997).
In 2 short years, MEPA was amended by the Interethnic Placement Act (IEPA) of 1996 (Hollinger, 2004c). IEPA established new prohibitions on adoptive placement decision making by states and other entities that provide foster care or adoption services and receive federal funds. IEPA prohibited states and other entities from delaying or denying a child’s foster care or adoptive placement on the basis of the child’s or prospective parent’s race, color, or national origin, and it prohibited agencies from denying any individual the opportunity to become a foster or adoptive parent on the basis of the prospective parent’s or the child’s race, color, or national origin. Under IEPA, race and ethnicity were not to be used in making adoptive placements except in a “few specific cases” when the child’s best interests “may require attention to racial or ethnic factors” (Hollinger, 2004c, p. 190). Under IEPA, the mandate on states with regard to the diligent recruitment of foster and adoptive parents who reflect children’s racial and ethnic backgrounds continued.
In the same year, 1996, as part of the Small Business Protection Act, Congress created an adoption tax credit for families whose adopted children qualify as dependents (Hampton, 2002). Subsequently amended by the Hope for Children Act of 2001, the tax credit, as of this writing, permits families to obtain a tax credit for “qualifying expenses” for adoption (such as fees paid to an adoption agency, travel expenses, court costs, and attorney fees) up to $10,000. When families adopt children with “special needs” from foster care, they may claim the full $10,000 tax credit, regardless of whether they have qualifying expenses. An additional change allowed families whose employers have an adoption assistance program to use payment and reimbursements through those programs to exclude up to $10,000 from their gross income (Hampton, 2002).
One year later, in 1997, Congress again enacted broad adoption legislation, passing the Adoption and Safe Families Act (ASFA, Pub. L. No. 105-89). This law made fundamental changes in Pub. L. No. 96-272 with regard to adoption, including the imposition of time frames within which petitions to terminate parental rights must be filed on behalf of children in foster care; the creation of adoption incentive payments to states that increase the number of adoptions of children in foster care over established baselines; and the extension of children’s eligibility for adoption subsidies when their adoptive parents die. ASFA has been consistently viewed as a major catalyst in the increase in the number of adoptions of children in foster care (Gendell, 2001; Wulczyn, 2002).
It is unclear to what extent Congress will continue to act in the area of adoption. In recent congressional sessions, bills have been introduced to, among other matters, change the eligibility and/or financing structure for the federal adoption assistance program. These proposals have generated significant debate, and the course of future congressional action is unclear.
Better Coordination of State-to-State Adoption Activities
A second area of legal development has been the regulation of interjurisdictional adoptive placements. In the 1950s, attention focused on children’s placements with adoptive families across state lines. That practice, which was wholly unregulated at the time, generated concerns about the safety and well-being of children adopted through such arrangements. In the absence of any structure to regulate interjurisdictional adoptions, there were no assurances that the interests of children, their birth parents, or their adoptive families were protected. In particular, there were concerns about placements of children in foster care across state lines as it had become apparent that some states were attempting to avoid their legal and financial responsibilities for children by, according to some commentators, “dumping” children into other states (Wendell & Rosenbaum, 1995, p. 3-A-1). Concerns about these practices led to the development of the Interstate Compact on the Placement of Children (ICPC), which created a legal structure to govern interjurisdictional foster care and adoptive placements of children (Freundlich, 1997).
The ICPC was designed to ensure the safety and well-being of children placed across state lines and to promote appropriate jurisdictional arrangements for those children’s care (Secretariat to the Association of Administrators of the Interstate Compact on the Placement of Children, 1990). As a compact, it provided a legal framework to which states could voluntarily become parties (Freundlich, 1997). Almost all northeastern states became parties to the ICPC in the early 1960s (Wendell & Rosenbaum, 1995). Between the early 1970s and the mid-1980s, almost all other states became parties to the ICPC (Wendell & Rosenbaum, 1995). Although many benefits of the ICPC were realized over the ensuing decades, the limitations of ICPC also became more apparent, particularly with regard to the long delays in processing interstate adoptive placement requests, uncertainties as to the types of cases that were subject to the ICPC, and little by way of legal enforcement when adoption agencies or independent practitioners violated ICPC provisions (Freundlich, 1997).
In 2004, the American Public Human Service Association, which serves as administrator for the ICPC, initiated, with the collaboration of the 50 states, a revision of the ICPC to address the major barriers to interstate foster care and adoption practice. Through the revision process, a host of issues were identified regarding the most effective legal framework for regulating interstate adoptions—issues that include the types of adoptions that the ICPC should regulate and the appropriate approach when the ICPC is violated. The revised ICPC was issued in 2006 and is currently being reviewed by states for enactment.
Regulation of International Adoption
Regulation of international adoption is a third area of continuing legal development. In 1990, the Hague Conference on Private International Law began work on a multinational treaty on intercountry adoption. In 1993, 55 countries, including the United States, signed the resulting Hague Convention on Intercountry Adoption (Hollinger, 2002b). The Convention has three primary objectives: (1) to ensure that international adoptions take place in the best interest of children and with respect for children’s fundamental rights as recognized by international law; (2) to prevent the abduction, trafficking, and sale of children; and (3) to ensure the recognition of adoptions in countries that ratify the Convention and follow its provisions (Hague Convention on Intercountry Adoption, Article 1). The Convention establishes minimum standards and procedures for international adoptions between countries that have ratified the Convention, including assurances that children are free for adoption and have been appropriately separated from their birth parents (Article 4); adoptive parents have been determined to be “eligible and suited to adopt” (Article 5); and each country has a central authority that oversees international adoption and takes “all appropriate measures to prevent improper gain in connection with an adoption and to deter all practices contrary to the objects of the Convention” (Article 8).
In 2000, the United States enacted the Intercountry Adoption Act (IAA) to complete its ratification and implementation of the Convention. The IAA designated the U.S. Department of State as the central authority for the United States and put into place mandates designed to ensure fairness and protection of the rights of birth parents, children, and adoptive families; eliminate fraud and abuse in the international adoption process; and streamline the international adoption process (Hollinger, 2002b). The essential remaining step in the full ratification and implementation of the Convention by the United States, however, is the completion of implementing regulations by the Department of State. That process, which began with the issuance of draft regulations for public comment in 2003, continues as of this writing and is not expected to be completed until 2006 at the earliest (U.S. Department of State, 2005). This process has been significantly delayed as a result of conflicts between adoption agencies and consumer groups about the allocation of risks and costs of international adoption (Hollinger, 2002b). It remains unclear how the United States will proceed with ratification and full implementation of the Convention and the extent to which it will, through regulation, address some of the thorniest problems affecting international adoption.
Clarification of Post-adoption Rights and Responsibilities
Postadoption rights and responsibilities are issues that have generated considerable interest and advocacy. In the 1970s, adoptees filed constitutional challenges to sealed records laws, asserting that these laws violated the rights of adopted individuals to obtain personal information (Samuels, 2004). These court challenges failed, but in a few states (Tennessee, Oregon, Alabama, and New Hampshire), state laws were changed in the 1990s through legislative action or referendum to permit adopted persons’ access to their original birth certificates or their adoption records (Samuels, 2004). Most states, however, have demonstrated considerable caution in opening adoption records (Samuels, 2004). Although advocacy has continued to amend state statutes to provide adopted adults with access to their original birth certificates and adoption records, these efforts have encountered significant resistance.
Despite the general reticence to allow access to adoption records on completed adoptions, states have evidenced a growing acknowledgment of the general benefit of greater openness in adoptions. Since the mid-1990s, states have enacted statutes to legally support planned openness in adoption as compatible with the established legal framework of adoption (Hollinger, 2004a). By 2003, more than 20 states had laws in place to permit postadoption contact agreements between adoptive families and children’s biological parents and, in some cases, other members of the child’s biological family. Although there is variation among these statutes, they are uniform in requiring that all postadoption contact agreements be approved by the court during adoption proceedings, in making the agreements enforceable after the adoption is finalized, and in clarifying that the existence of or disputes about the agreement do not affect the validity and finality of the adoption (Hollinger, 2004a). It can be expected that the law will continue to support planned openness in adoption given changes in adoption practices regarding openness and the relative success of postadoption contact statutes in the states that have already enacted these provisions.
Paralleling legal developments regarding access to identifying information about other members of the adoption triad were judicial and statutory developments regarding access to nonidentifying information. In 1986, the first “wrongful adoption” lawsuit was decided, a case in which adoptive parents asserted that their adoption agency had failed to disclose known health and other background information about their child prior to the adoption. In Burr v. Board of County Commissioners, an Ohio court recognized for the first time the right of adoptive parents to sue for monetary damages when adoption agencies have misled them about their child’s background; they moved forward with the adoption without this information; and they subsequently experienced economic and emotional harm in attempting to meet the needs of their adopted child (Freundlich & Peterson, 1998). In subsequent years, courts in a number of other states also recognized “wrongful adoption” as a legal cause of action. Beginning in the mid-1980s, most states also moved to enact statutes mandating that background information about children be disclosed to prospective adoptive parents. These statutes and court decisions have led to significant changes in adoption agencies’ practices related to information disclosure (Freundlich & Peterson, 1998).
The Rights of Nontraditional Families to Adopt
One of the most controversial legal issues in the current legal environment is the right of lesbian and gay couples to legitimize and protect their relationships with children whom they wish to adopt. Increasingly, legal focus is being placed on second or co-parent adoption, a legal procedure that allows a same-sex co-parent to adopt the biological or adopted child of his or her partner without the partner relinquishing parental rights. Advocacy in favor of legal recognition of these adoptive relationships has emphasized that it provides children with two legal parents, each equally responsible for the child, and protects legally recognized parental relationships between each parent and the child (Hollinger, 2004b).
Legal developments in this area, however, have taken two distinct paths. On the one hand, second-parent adoptions have been recognized by appellate courts in at least eight jurisdictions (California, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, Vermont, and the District of Columbia), and trial courts in another 20 states have approved second-parent adoptions and adoptions by gay and lesbian couples of unrelated children (Hollinger, 2004b). In at least 3 states (California, Connecticut, and Vermont), statutes authorizing second-parent adoptions have been enacted (Hollinger, 2004b). On the other hand, appellate courts in several states (Colorado, Nebraska, and Wisconsin) have held that same-sex co-parent adoptions are not permitted (Hollinger, 2004b), and in other states (Mississippi, Florida, Texas, and Utah), statutes or regulations have been put in place to prohibit lesbians and gay men from fostering or adopting children in the state’s foster care system (Hollinger, 2004b). The legal debate regarding second-parent adoptions and adoptions by gay and lesbian adults is likely to continue, making it difficult to predict the extent to which a legal consensus will emerge regarding these issues.
Adoption law in the United States has evolved significantly since its inception in the 1800s, which provides a timeline of adoption law developments. At both the state and the federal level, substantial steps have been taken to support and strengthen adoption. In many areas, however, adoption law remains highly variable because of states’ differing approaches to the rights and responsibilities of the various individuals involved in the adoption process. Adoption law will continue to develop in areas that traditionally have been addressed through statutes and court decisions and in areas that are emerging and which continue to be the subject of debate. Just as adoption is not a static process, adoption law is fluid and dynamic. An understanding of the legal history of adoption can provide a foundation for promoting further legal advancements in the field.