Adoption, Race, and the Constitution

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Since Massachusetts enacted the first "modern" state adoption statute in 1851, adoption in the United States has been both a state judicial process and a child welfare service to promote the "best interests" of children in need of permanent homes. State law and adoption agency practices have traditionally tried to mirror biology; same-race placements simply were presumed to serve a child's "best interests."

The Supreme Court in meyer v. nebraska (1923) deemed the guarantee of liberty in the fourteenth amendment to include the right "to marry, establish a home, and bring up children," and subsequently rendered decisions defining various elements of family relations as "fundamental interests." Yet, it has not recognized a fundamental interest in adopting children.

During the latter half of the twentieth century, legal access to abortion and lessening social stigma associated with nonmarital children resulted in dramatically fewer voluntary relinquishments of white infants—what most prospective adopters initially seek. Instead, waiting children often had special needs, were older or minority children, or were part of large sibling groups who did not "match-up" with approved waiting families. A disproportionate number of these children were African American who remained in foster care longer periods of time than other children due to a shortage of approved African American homes.

Since the mid-1970s, two paradigm shifts in the adoption field set the stage for successful efforts in the 1990s to ban "same-race" placement preferences. First, the primary focus shifted from promoting the interests of children in need of homes to an emphasis on serving adults who seek to parent. Second, lawyers asserting rights of their clients to adopt any child were often the dominant professionals instead of social workers. Adoption was increasingly seen not solely as a specialized child-welfare service, but as a profitable business venture buoyed by a strong demand for babies of all colors. Legal scholars claimed that, in addition to frustrating the market for babies, statutory "same-race" placement preferences harmed African American children in violation of the equal protection guarantee of the Fourteenth Amendment.

Because most forms of racial discrimination are unconstitutional and all racial criteria are subject to strict scrutiny, the question of what weight to give race in granting or denying adoption is a sensitive issue. According to Twila Perry, it has evoked acrimonious debate "between those who view transracial placements as positive for both the children and society as a whole and those who view them as injurious to Black children and Black communities." Some lower courts have held that using race as the sole factor in denying adoption or in placing children in foster homes violates the equal protection clause. Other courts, such as the District of Columbia Court of Appeals, in Petition of R.M.G. (1983), have ruled that race may be one of the relevant factors in a disputed adoption proceeding and that a court may consider how each contestant's race is likely to affect the child's development.

But the Supreme Court's 1984 decision in palmore v. sidoti (a suit by a white father seeking custody of his daughter because the custodial mother lived with and then married a black man) casts considerable doubt on the position taken in the R.M.G. case. In Palmore the Court recognized that racial and ethnic prejudices exist and might pose problems for a child living with a stepparent of a different race. Yet, the Court ruled that such problems could not justify a denial of constitutional rights nor the removal of the child from the custody of her mother. As Homer Clark, Jr., concluded, "fairly read, the opinion may be construed to say that the impact on a child caused by living in a mixed race household … is not a factor which the Constitution permits the courts to take into account."

Ten years after Palmore, state court judicial challenges to "same-race" placement preference practices and aggressive lobbying of Congress resulted in federal legislation that eviscerates adoption's traditional emphasis on the "best interests" of the child in favor of race matching. Those dissatisfied with Senator Howard Metzenbaum's 1994 MultiEthnic Placement Act criticized the latitude given agencies and courts to consider cultural or racial identity needs of a child and a prospective foster or adoptive parent's ability to meet those needs. But those same people applauded the law's 1996 repeal by legislation that absolutely banned consideration of race in child placement decisionmaking.

Under the 1996 law, no state or other entity in a state receiving federal funds and involved in adoption or foster care may (1) deny any person the opportunity to become an adoptive or a foster parent; or (2) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child involved. Noncompliance is a violation of Title VI of the civil rights act of 1964, and financial penalties may result. Additionally, any individual aggrieved by a state's or other entity's violation may seek relief in any U.S. District Court.

Some view the claim that "same-race" placement preferences victimize the increasing numbers of African American children entering foster care as a diversionary "smokescreen" strategy. These observers emphasize the systemic barriers to meeting the needs of African American children, their families, and the African American community. They also point out that eliminating race from placement decisionmaking opens up a new source of infants to satisfy the demands of waiting white applicants, given the increasing numbers of voluntarily relinquished, biracial, nonmarital children (many with one black and one white parent) that historically have been assigned the racial designation of "Black."

Ruth -A rlene W. Howe


Bartholet, Elizabeth 1991 Where Do Black Children Belong? The Politics of Race Matching in Adoption. University of Pennsylvania Law Review 139:1163–1256.

Clark, Jr. , Homer H. 1988 Race and Religion in Adoption Placement. Pages 912–915 in The Law of Domestic Relations in the United States, 2nd ed. St. Paul, Minn.: West Publishing Co.

Howe, Ruth -A rlene W. 1995 Redefining the Transracial Adoption Controversy. Duke Journal of Gender Law & Policy 2:131–164.

——1997 Transracial Adoption (TRA): Old Prejudices and Discrimination Float Under a New Halo. Boston University Public Interest Law Journal 6:409–472.

Perry, Twila L. 1993–1994 The Transracial Adoption Controversy: An Analysis of Discourse and Subordination. New York University Review of Law & Social Change 21:33–108.