There is great variety among states regarding adoption laws, perhaps due to the very personal nature of these laws. A long legal tradition did not surround family law, and as state governments began to take responsibility for regulating family relationships, they tended to develop very unique and regional variations on aspects of family law, including adoption. These variations spawned difficult legal conflicts as modern families grew more mobile, and these conflicts gave rise to the desire to standardize laws among the states into Model Acts and Uniform Laws. Although the need for adoption standardization is strong to date, only eight states have adopted the Uniform Adoption Act.
Any adult may adopt any other person with only minor logical restrictions. A married person must apply for adoption jointly with his or her spouse, for example, and, if the child in certain states is over the age of ten, twelve, or fourteen, the state will require his or her consent as well (except in Louisiana and Wisconsin, where the child’s consent is not required). “Objective” standards, like Hawaii’s requirement of a “proper” adopter, or Illinois’s “reputable” one, and Virginia’s “natural” one, also are present, as are specific requirements, for example, that the adopter be at least ten years older than the adoptee. Sometimes the adoptee must be a minor. In Florida homosexuals are, from the face of the statute, specifically excluded from adopting; it is unclear whether terms such as “proper,” “reputable,” or “natural” refer to a prospective parent’s sexual orientation.
In general, family laws are changing as society’s value system changes and is scrutinized. In the area of adoption, there is a growing trend to recognize the rights and opinions of children at younger ages, and to recognize the rights of non-traditional individuals. Indeed, same-sex couples are recognized as adoptive parents in a number of states. Also, some states appear headed in the direction of “open” adoption, whereby any individual may adopt any other individual for any reason.
Federal law has preempted the entire scope of the laws of adoption regarding Native Americans, provoking controversy over a non-Native American family’s ability to adopt a Native American. In 1991, when a member of the Aleut tribe had a baby out of wedlock, a non-Native couple living in Vancouver, British Columbia, adopted the child. The tribe sued for custody of the child and won the right to intervene in the adoption by claiming that they had a vital interest in preserving the child’s Indian heritage. The California court upheld the tribe’s right to intervene, but in the child’s interest let her remain with her adoptive parents because she had been living with them for nearly two years.
|Table 24: Adoption|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
25 U.S.C. §§1901, et seq. ; Indian Child Welfare Act
|Placement preferences||Indian Tribe exclusive jurisdiction/Tribal||2 years (unless otherwise permitted under state law)|
26-10A-1 to 26-10A-38; No
|(1) Any minor(2) Any adult under following conditions:(a) He or she is permanently disabled(b) He or she is determined to be mentally retarded (c) consents to adoption and is related or stepchild (d) consents to be adopted by a husband and wife||14 years and older unless adoptee does not have mental capacity to give consent||Any adult person or husband and wife jointly; no rule or regulation of Department of Human Resources shall prevent adoption by single person solely because of a certain age; or by a person because he or she works outside the home.||60 days, unless waived by court when good cause is shown||Dept. of Human Resources/Probate Court||1 year|
25.23.010 to 25.23.240; Yes
|Any person||10 years and older unless court dispenses with minor’s consent in minor’s best interest||Husband and wife together; unmarried adult, including father or mother of person to be adopted; married person without other spouse joining, if other spouse is not person to be adopted, and other person is parent of adoptee and consents to adoption or consent is excused by court or spouses are legally separated.||Yes, but no specified length of time required||Health & Social Services/Superior, Juvenile Division||1 year|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
8-101 to 8-145; No 14-8101
|Any child under 18 years of age or foreign born person under age 21 who is not illegal alien; any adult person who is a stepchild, niece, cousin, nephew, or grandchild of the adopting person; an adult who was placed in the care of the adopting parent as a foster child as a juvenile. §14-8101||12 years and older in open court||Any adult resident of the state is eligible to adopt; husband and wife may jointly adopt children. Adults may adopt adult relatives.||No||Economic Security/Superior, Juvenile Division||1 year|
9-9-201 through 9-9-508; Yes
|Any person||10 years and older unless court dispenses with minor’s consent in minor’s best interest||Husband and wife together, unmarried adult, unmarried parent of child, single married parent of child if other parent consents or they are legally separated||6 months||Human Services/ Probate Court||1 year|
Family §§8500-9340; No
|Any unmarried minor child at least 10 years younger than prospective adoptive parent or parents; any married minor or adult||12 years and older||Any adult; must be 10 years older than child unless stepparent, sister, brother, aunt, uncle, or first cousin and court approves||No||State Department of Social Services/ Superior||On any grounds except fraud: 1 year; fraud: 3 years|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
14-1-101; 19-5-200.2 to 304; No
|Any child under 18 years (age 18–21 upon court approval may be adopted as a child); any adult||12 years and older||Minor with court approval or any person over 21. Married person must petition jointly with spouse unless such spouse is natural parent of or has previously adopted child or is legally separated||No||Social Services/ Juvenile||Jurisdictional or procedural defect: 90 days; in stepparent adoption, fraud upon court or party: 1 year|
45a-724 to 765; No
|Any person (except between persons over age of majority, there must be written consent of spouses if any of adopted person)||12 years and older||Married persons must join in adoption unless court finds sufficient reason for nonjoinder; sexual orientation of prospective parents may be considered||No||Children and Youth Services/ Probate Court||Not specified|
Tit. 13, §§901 to 965; No
|Any person||14 years and older, unless court waives consent in best interest of child||Unmarried person; divorced or legally separated person; husband and wife who are living together. Must be legal resident of Delaware and over 21.||6 months||Dept. of Services for Children, Youth & Families/ Family||6 months|
|DISTRICT OF COLUMBIA|
16-301 to 315; No
|Any person||14 years and older||Any person, provided spouse (if any) joins in petition unless spouse is natural parent of adoptee and consents thereto.||6 months||Mayor or licensed agency/Superior Court of the District of Columbia||1 year|
|Any person||12 years and older unless court dispenses with consent in best interest of the child||An unmarried adult who is not homosexual. Married person must be joined by spouse unless such spouse is parent and consents, or failure to join in consent is excused.||90 days||Dept. of Health & Rehabilitative Services/Circuit||1 year|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
19-8-1 to 26; No
|Any child 10 years younger than petitioner; any adult who gives written consent.||14 years and older||Any adult at least 25 years of age or married and living with spouse and bona fide resident for 6 mos. prior to filing petition; must be ten years older than adoptive child.||No||Dept. of Human Resources/ Superior Court in county||Not specified|
578-1 to 17; No
|Any person||10 years and older; if married adult, consent of spouse also||Any proper adult person, not married, or married to legal parent of minor, or husband and wife jointly.||No||Human Services/ Family||1 year|
16-1501, et seq. ; No
|Any child; with consent of parents, if living; any adult where the person adopting has sustained relation of parent.||12 years and older||Any adult resident of Idaho for at least 6 consecutive mos. prior to filing who is either 15 years older than child or 25 years of age or older; except spouse of natural parent or person adopting adult who has shown a substantial relationship as a parent has been maintained in excess of 1 yr. may adopt without above age restriction. No married person can adopt without consent of spouse.||No||Dept. of Health & Welfare/ Magistrate’s Division or District||6 mos. except for fraud|
750 ILCS 50/1 to 50/24; No
|Any child; any adult residing in home 2 years, or a relative.||14 years and older||Any reputable person under no legal disability of legal age who has resided continually in Illinois for at least 6 months or 90 days for armed forces. Residency requirement waived in adoption of relative or if child placed by an agency. If petitioner is married, husband or wife must join in petition unless separated over 1 yr. Minor may also petition by leave of court upon good cause shown.||6 months unless waived by court||Department of Children and Family Services/ Circuit Court||1 year after entry of order|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
31-19-1-1, et seq. ; No
|Any person||14 years and older||Any resident of state. If married, spouse must join. Spouse must consent if such spouse is natural or adoptive parent. Nonresidents of state may adopt hard to place child as defined in §31-19-2-3.||Period of supervision within sole discretion of court hearing adoption petition||Public Welfare/ Probate (in counties with one)||6 mos. after entry or decree or 1 yr. after adoptive parents obtain custody, whichever is later|
600.1, et seq. ; No
|Any person||14 years and older||Unmarried adult; husband and wife together; husband or wife separately under certain circumstances.||180 days; may be shortened for good cause||Human Services/ Juvenile or district||Not specified|
59-2111, et seq. ; No
|Any person; adult with consent (if married, spouse’s consent also)||14 years and older and of sound intellect||Any adult, or husband and wife jointly, except one spouse cannot adopt without consent of other.||Not required||Social & Rehabilitation Services/District||Not specified|
199.470; No 199.500
|Any person||12 years and older||Any person over 18 who is a resident of or who has resided in Kentucky for 12 months immediately preceding filing. Husband and wife must petition jointly (except in certain circumstances).||In some adoptions, 90 days prior to filing adoption petition; temporary custody pending decision in some cases.||Cabinet for Families and Children/Circuit||1 yr.; unless ethnological ancestry difference: then 5 years|
Ch. C. Art. 1167-1270; No
|Any child or adult; Special procedures exist to adopt adult.||Not required||Any single person 18 years of age or older, or married couple jointly.||1 year/6 mos.||Dept. of Social Services/Juvenile||30 days; 6 mos. for fraud or duress|
Tit. 18A §9-101, et seq. ; No
|Any person, minor or adult; only a minor can be placed under guardianship||14 years and older||Husband and wife jointly, unmarried person, resident or non-resident.||1 year may be required at discretion of court||Human Services/ Probate||Not specified|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
Fam. Law §5-301, et seq. ; No
|Any person||10 years and older if the natural parents’ rights have been terminated||Any adult, even though single or unmarried. Court cannot deny petition just because petitioner is single. Married persons must act jointly unless legally separated or if one spouse is natural parent of adoptee or spouse is incompetent.||180 days||Social Services Administration/ Circuit or Equity||1 year|
Ch. 210; No
|Any person younger than adopter; special requirements are needed for child under age 14.||12 years and older||Any person of full age, his spouse joining, may, subject to certain exceptions, petition to adopt any person younger than himself (other than petitioner’s spouse, brother, sister, aunt, or uncle of whole or half blood).||6 months if adoptee is under 14 unless requirement waived||Social Services/ Probate||120 days for appeal; may only be made by a parent|
CLA §710.21, et seq. ; No
|Any person||14 years and older||Any person; if married, spouse must join.||6 months, unless waived by court||Family Independence Agency/Family Division of Circuit||21 days from entry of order or denial of petition for rehearing|
259.20, et seq. ; No
|Any person||14 years and older||Any person who has resided in the state for more than one year, unless length of residence is reduced to 30 days in child’s best interest or waive it altogether.||3 months; may be waived by court||Human Services/ Juvenile||Not specified|
93-17-1, et seq. ; No
|Any person||14 years and older||Any unmarried adult, or husband and wife jointly. Must be Mississippi resident for 90 days preceding filing except under certain circumstances; couples of the same gender are prohibited from adopting.||6 months; waiting period may be shortened if child resided in adoptive home prior to entry of interlocutory decree or is stepchild of petitioner.||Dept. of Human Services/Public Welfare/Chancery||6 months to challenge interlocu-tory decree; or 6 mos. from date of final decree|
453.010, et seq. ; No
|Any person||14 years and older||Court may order joinder for spouse of petitioner.||6 months, may be waived by court in certain circumstances||Social Services, Family Services Division/Juvenile Div. of Circuit Court||1 year|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
42-1-101, et seq.; Yes
|Any person||12 years and older||Unmarried person who is at least 18 yrs. old. Husband and wife jointly or may adopt separately when one spouse is a parent of the child or legally separated or spouse judicially incompetent||6 months||Department of Public Health and Family Services/ District or Tribal||Not specified|
43-101 to 43-160; No
|Any child.||14 years and older||Any adult person may adopt minor child; adult child may be adopted by spouse of such child’s parent. Husband and wife must jointly adopt child, unless he or she is parent of child.||6 months (except in adoptions of adult child)||Department of Social Services/ County||2 years|
11-127, et seq. ; No
|Any person (consent of spouse required for adult persons)||14 years and older||Minor: Any adult who is 10 years older than adoptee. If petitioner is married, spouse must join. Must have resided in state during 6 months preceding adoption. Adult: Any adult may adopt younger adult except spouse.||6 months||Human Resources, Division of Child and Family Services/District||Not specified|
Title XII-170-B, et seq. ; No
|Any person||14 years and older||Any person age 18 or older may petition to adopt any other individual except his or her spouse. Failure to join spouse to petition must be excused (unless other spouse is parent of person to be adopted and consents to adoption).||6 months||Dept. of Health and Human Services/Probate||1 year|
9:3, et seq. (minor); 2A:22-1 et seq. (adult); No
|Any person. If adult adoption, must be 10 years younger than petitioner||10 years and older (to be given consideration)||Any person of at least 18 yrs. If petitioner is married, spouse must consent or application may be made jointly. Court may waive any of these requirements for good cause.||6 months||Human Services/ Superior, Chancery Division, Family Dept.||Not specified|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
32A-5-1, et seq. (minor); 40-14-1 thru 15 (adult); Yes
|Any person; any adult with his consent||14 years and older||Any individual approved by the court as a suitable adoptive parent. If petitioner is married, spouse must join unless natural parent of adoptee or legally separated or excused from joining by court. Nonresidents may adopt if adoptee is resident or was born in state, is less than 6 mos. old and was placed by agency licensed in state||60 days if less than one year old when placed; 120 days if more than one year old when placed (unless waived).||Children, Youth and Families Dept./District Children and Court Division||1 year (except where Indian Child Welfare Act of 1978 prevails)|
Dom. R el. §109-117; Yes
|Any person||14 years and older.||Adult unmarried person or adult husband and wife together unless legally separated pursuant to decree or for at least 3 yrs. prior to filing. Adult or minor husband and wife, together or separately, may adopt child either born in or out of wedlock.||3 months; may be waived by judge||As defined by social services law/Family||Not specified.|
§48-1-100, et seq. ; No
|Any person; any adult with his consent; spouses may not adopt each other||12 years and older||Any adult person over 18 yrs. old or husband and wife jointly or one spouse gives consent, only one unmarried person may file. Must have resided in North Carolina for six months next preceding filing of petition. Residency requirement waived under certain circumstances.||At least 90 days||Health and Human Services/Superior||6 months|
14-15-01, et seq. ; Yes
|Any person||10 years and older||Unmarried adult or parent of child to be adopted. Husband and wife jointly unless legally separated or excused.||6 months||Human Services/ District||1 year|
3107.01, et seq. ; Yes
|Any child; certain adults only.||12 years and older||Unmarried adult; unmarried minor parent of adoptee; husband and wife (at least one of whom is adult) together, unless legally separated or under certain other circumstances.||6 months||Human Services/ Probate||1 year|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
Tit.10 §7501-1.1, et seq. ; No (but some section incorporated)
|Any person; any adult with his consent||12 years and older.||Husband and wife if both over 21 or either husband or wife if other spouse is parent or relative of child; unmarried person 21 years or older; married person 21 years or older who is legally separated from spouse.||6 months, discretionary||Department of Human Services/ District||1 year|
109.304, et seq. ; No
|Any person; any adult who consents||14 years and older||Any person who is a resident of Oregon for 6 months. If petitioner is married, spouse must join. Compliance with Indian Child Welfare Act required if applicable.||Not required||Dept. of Human Services/Probate or Circuit||1 year|
Tit. 23 §§2101 to 2910; No
|Any person||12 years and older||Any person||Not required, but may do temporary placement||Pennsylvania Adoption Cooperative Exchange (PACE) in Dept. of Public Welfare/Common Pleas||Not specified|
15-7-2, et seq. ; No
|Any person||14 years and older||Any person residing in state may adopt any person younger than himself. If petitioner is married, spouse must join; however, requirement may be waived if it can be shown adoption would be in child’s best interest. Nonresident may petition under certain circumstances.||6 months, but court may waive for good cause||Child Welfare Services Dept. for Children and their Families/Family (adults-Probate)||180 days|
20-7-1646 to 1890; No
|Any child present in state; any adult||14 years and older||Any South Carolina resident may petition court to adopt child. Nonresidents may apply in exceptional circumstances. Any adult person may adopt any other adult person.||90 days||State Dept. of Social Services/ Family||Relief may be granted after duty of decree only for extrinsic fraud|
25-6-1, et seq. ; No
|Any person||12 years and older||Any adult person may adopt any child at least 10 years younger. Any adult may adopt another adult with the latter’s consent. Spousal consent required.||6 months||Social Services/ Circuit||2 years, except for fraud|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
36-1-101, et seq. ; No
|Any person||14 years and older||Any person over 18 years of age who has been Tennessee resident for 6 months. Residency requirement may be waived under certain circumstances. Spouse shall join in petition if competent (unless natural parent of child to be adopted)||1 year||Children’s Services/Chancery or Circuit||1 year|
Fam. Ch. 162.001, et seq. ; No
|Any person||12 years and older||Any adult. If petitioner is married, spouse must join. (unless one is parent of child)||6 months (may be waived)||Human Services/ District||6 months|
78-30-1, et seq. ; No
|Any child 10 years younger than petitioner; any adult||12 years and older||Any adult. Must have consent of spouse if married. A single person who is “cohabitating” and involved in a sexual relationship without being married may not adopt.||6 months; 1 year for adoptive stepparents||Child and Family Services/District or Juvenile||Cannot be contested after entry of final adoption decree|
Tit.15A §§1-101,et seq. ; No
|Any person; if adult, must have his and any spouse’s consent||14 years and older||Any person. If petitioner is married, spouse must consent. Parent and partner may adopt if in best interest of the child.||180 days||Social & Rehabilitation Services/Probate||Not specified|
63.2-1200, et seq. ; No
|Any child; adult under certain conditions||14 years and older||Any natural person may petition to adopt minor child. If petitioner is married, spouse must join. Any natural person may adopt another adult under certain conditions.||6 months (may be omitted by court)||Public Welfare or Social Services/ Circuit||6 months|
|Any person||14 years and older||Any legally competent person, 18 years of age or over.||Not required||Social & Health Services/Superior||1 year|
48-22-101, et seq.
|Any person||12 years and older||Any person not married or any person with his or her spouse’s consent or husband and wife jointly.||6 months||Department of Human Services/ Circuit||6 months|
|State/Code Section; Uniform Act||Who May Be Adopted||Age that Child’s Consent Needed||Who May Adopt||Adoptive Home Residency Prior to Decree||State Agency/ Court||Statute of Limitation to Challenge|
48.81, et seq. ; 882.04; 808.04(7); No
|Any child present in state at filing or an adult||No child’s consent required; however, minors 14 and older must attend hearing unless court orders otherwise.||Unmarried adult, husband and wife jointly, spouse of minor’s parent may adopt minor. Must be Wisconsin residents and (if practicable and if requested by birth parent) of same religion as adoptee’s natural parents. Any resident adult may adopt any other adult.||6 months||Department of Health & Social Services/Circuit||45 days or 90 days depending on how much notice is given for entry of final judgment|
1-22-101; et seq. ; No
|Any person within state at filing||14 years and older||Any adult person who has resided in state during 60 days immediately preceding filing of petition and who is determined by court to be fit and competent to be a parent.||6 months||Department of Family Services/ District|
A two-step judicial process in conformance to state statutory provisions in which the legal obligations and rights of a child toward the biological parentsare terminated and new rights and obligations are created between the child and the adoptive parents.
Adoption involves the creation of the parent-child relationship between individuals who are not naturally so related. The adopted child is given the rights, privileges, and duties of a child and heir by the adoptive family.
Since adoption was not recognized at common law, all adoption procedures in the United States are regulated by statute. Adoption statutes prescribe the conditions, manner, means, and consequences of adoption. In addition, they specify the rights and responsibilities of all parties involved.
De facto adoption is a voidable agreement to adopt a child, based on a statutory proceeding in a particular state, which becomes lawful when the petition to adopt is properly presented.
Equitable adoption, sometimes referred to as virtual adoption, is treated by the law as final for certain purposes in spite of the fact that it has not been formally executed. When adoption appears to comply with standards of fairness and justice, some states will grant a child the rights of one who has been adopted even though the adoption procedure is incomplete. An equitable adoption might be enforced by the court for the benefit of a child in order to determine inheritance rights, for example. Similarly, adoption by estoppel is the equitable adoption of a child by promises and acts that prevent the adoptive parents and their estates from denying the child adoptive status.
Who May Adopt
To be entitled to adopt a child, an individual must meet the qualifications under the laws of his or her state, since the state has sole power to determine who may become an adoptive parent. Unless otherwise provided by state statute, U.S. citizenship is not a prerequisite for adoption.
A child may be jointly adopted by a husband and wife. If not contrary to statutory provision, either may adopt without being joined by the other. Unmarried people may adopt unless prohibited by law.
A growing area of controversy by the courts is whether adoption by a child's grandparents is a viable alternative. Such adoption might be considered in the child's best interests if the natural parents die or if the custodial parent is found unfit. A legal guardian may adopt a child but is not ordinarily given preference in the court proceedings.
The best interests of the child are of paramount importance in policy considerations toward adoption. Although legislative policy prefers such conditions as adoption by people of the same religion as the prospective adoptee, an interfaith adoption is allowed when it does not adversely affect the welfare of the child.
Elements in determining who will be suitable adoptive parents include race, religion, economic status, home environment, age, and health. Most of these criteria are taken into consideration in placements by agencies or in private placements where state law requires that adoptive parents be investigated.
Who May Be Adopted
Since the status of an adopted person is regulated by state statutes that authorize the adoption, state law determines whether an individual is a proper candidate for adoption. In addition, to be subject to adoption in a particular state, the individual must be living within that state.
Children may be adopted in situations where their natural parents are living, dead, or unknown, or where they have been abandoned. An adoption will not be prevented by the fact that a child has a legal guardian.
Some statutes expressly limit adoption to minors, and others expressly provide for adoption of adults. The adoption of adults is regarded by statutes and the courts in a manner similar to the adoption of children. Practically, however, the adoption of adults differs greatly, since it serves different purposes and creates few of the difficulties arising out of the adoption of children. In most cases, the purpose of adult adoption is to facilitate a device for inheritance. One may designate an heir by adopting an adult. Generally, the adoptee would not otherwise be entitled to inherit but for the adoption.
In the past, adoption was viewed primarily as a means for a childless married couple to "normalize" their relationship. The focus has switched, however; now, adoption is ordinarily seen as an institution that exists to help place children into improved environments.
A number of states have, in recent years, enacted statutes that permit subsidization of adoptions. The adoption procedure thereby became a social instrument for the improvement of the lives of underprivileged children. Subsidized adoption tends to encourage adoption of children by suitable individuals who would otherwise be unable to afford it. This type of adoption has a significant effect upon placement of children labeled hard-to-place. Such children, who are frequently either physically or mentally handicapped, might have no other alternative except protracted institutionalization.
State law may require that the adopting parent have custody of a child for a certain period before obtaining an adoption decree. This requirement is designed to prevent premature action and to establish whether the best interests of the child will be furthered by the adoption.
Transracial Adoption The issue of transracial adoption (adoption of children who are not the same race as the adoptive parents) has come under close scrutiny by courts, legislatures, and the public. Americans are sharply divided on this issue. Is it a positive way to create stable families for needy children and well-meaning adults? Or is it an insidious means of co-opting members of racial minorities and confusing their sense of identity?
In 1972, when the number of African American children adopted annually by white families rose to fifteen thousand, the National Association of Black Social Workers (NABSW) issued its opinion on the subject. Igniting a furious national debate that continued in the mid-1990s, the association equated transracial adoption with cultural genocide for African Americans.
The NABSW and other minority groups opposed to the adoption of African American children by whites claim that the children are deprived of a true appreciation and understanding of their culture. Their childhood is skewed toward white values and assimilation. Without a sense of racial identity and pride, these children cannot truly belong to the African American community; yet, by the same token, racism prevents their full inclusion in the white world.
Despite these arguments, some African Americans applaud the unconditional love and permanence offered by transracial adoptions. Transracial adoption supporters argue that it is much worse to grow up without any family at all than to be placed with parents of a different race. Because a disproportionate number of African American children are placed in foster care, mixed-race adoptions may be necessary to ensure permanent homes for some African American children. Transracial adoption may also be viewed as an opportunity to achieve integration on the most basic level.
Controversies involving transracial adoption soon found their way to the courts. In 1992, the Minnesota Supreme Court upheld a district court's order to transfer a three-year-old African American girl from her suburban Minneapolis foster home to her maternal grandparents' home in Virginia (In re Welfare of D. L., 486 N.W.2d 375 [Minn. 1992]). Referred to as Baby D in court records, the child had been raised since birth by white foster parents who had been married for twenty-four years and had already raised three grown children. Baby D's birth mother placed her in foster care almost immediately after delivery and had not seen the child since. When no relatives could be found to claim the child, the foster parents decided to adopt the girl, whom they had grown to love.
When Baby D's grandparents learned that their daughter had delivered a baby, they set out to find their grandchild and to obtain custody. (The couple was already raising their daughter's three other children.) When the foster parents' petition to adopt Baby D surfaced, the grandparents vigorously opposed it.
The Minnesota Minority Heritage Preservation Act mandated a preference for placing children with relatives and adoptive parents of the same race (Minn. Stat. Ann. § 259.57(2)). An intermediate appeals court and the Minnesota Supreme Court agreed with the lower court that under the law, the Virginia grandparents must be granted custody. Despite the white foster parents' argument that they had provided security and loving care for the child, the grandparents' claim to Baby D was superior. Although many African Americans applauded the decision, some critics questioned the constitutionality of a law favoring same-race adoption.
A similar case in Lexington, Texas, produced a different result in 1995. Two foster parents, Scott Mullen and Lou Ann Mullen, who are white and Native American, respectively, applied to adopt two African American boys in their care. Initially, social workers for the Texas Department of Protective and Regulatory Services denied the Mullens' request, stating that departmental policy required them to seek adoptive parents of the same race as the children.
A civil liberties group called the Institute for Justice filed suit against the department on behalf of the Mullens. The institute also filed suits in other states, arguing that adoption decisions based on race are unconstitutional. The Texas department reconsidered and allowed the Mullens to adopt the boys despite race differences.
Another statute affecting transracial adoptions is the indian child welfare act of 1978 (25 U.S.C.A. § 1901 et seq.) (ICWA), a federal law giving special preference to family and tribal adoptions of Native American children. Prior to its enactment, nearly one quarter of all Native American children were removed from their parents' care and placed in foster care, through which some were adopted. ICWA's sponsors argued that the adoption of Native American children by white parents was not necessarily in the children's best interests and was unquestionably harmful to tribal membership. The law was intended to preserve Native American culture and to support an Indian child-rearing philosophy that relies heavily upon the extended family.
Under the 1978 law, tribes have jurisdiction over the proposed adoption of any Native American child living on a reservation. Extended families or tribal placements are given automatic priority over all other applicants.
Another law covering transracial adoptions is the Multiethnic Placement Act of 1994 (42U.S.C.A. §§ 622, 5115a, 5115a note). Sponsored by Senator Howard M. Metzenbaum (D-Ohio), the law prevents federally assisted child welfare agencies from screening prospective adoptive parents on the basis of race, color, or national origin. Although agencies may still consider the cultural or racial identity of children when making permanent placements, the law is intended to prevent discrimination and to speed the adoption process. The intention of the law is to give thousands of minority foster children who are eligible for adoption a greater chance of finding permanent homes.
Same Sex Adoption Several states have laws on the books that permit second-parent adoptions by same-sex couples, including Connecticut, the District of Columbia, Illinois, Massachusetts, New York, New Jersey, and Vermont. In 18 other states, trial courts have granted second-parent adoptions to same-sex couples. In other words, these states do not have laws permitting adoptions statewide, but adoptions may be granted in county family courts on a case-by-case basis. These states are Alabama, Alaska, California, Delaware, Georgia, Hawaii, Indiana, Iowa, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, and Washington. In states where there is no statewide law permitting second-parent adoptions, the odds of a trial court granting an adoption vary from county to county. Many of the courts that approve these adoptions are located in metropolitan areas where judges may be more liberal than their rural counterparts.
While the majority of states do not specifically prohibit gays and lesbians from adopting children, three states prohibit the practice. Florida's law is considered the nation's toughest, because it prohibits adoptions not only by gay couples, but also by gay individuals. In 2000, an Arkansas law was passed which prohibited gays and lesbians from becoming foster parents. Mississippi also has legislation barring gay couples from adopting children. The ACLU is challenging that law.
Virtually all statutes make parental consent to adoption an indispensable condition. Most statutes set forth detailed requirements for the form and procedure of such consent. Ordinarily, statutes dispense with the parental consent requirement only when a parent has reached a serious level of unfitness that would be so significant as to terminate parental rights, or when such rights have already been judicially terminated.
In addition to parental consent, most states require a child to consent to the adoption if the child has reached a certain age, generally between ten and fourteen years.
The increasing number of divorces has resulted in deemphasis of the necessity of consent to adoption by noncustodial parents, the purpose being to ease integration of children of a former marriage into the family created by a subsequent marriage. Some statutes allow adoption without the consent of the noncustodial parent if that parent has been unable to or has failed to contribute to the support of a child for a certain period of time. Courts are more inclined to find abandonment—a common ground for termination of parental rights—in cases involving noncustodial divorced parents.
Unmarried Father's Consent Historically, if a child was illegitimate, most jurisdictions required only the consent of the child's natural mother to the adoption of the child. The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption.
In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father need be obtained before an adoption could be finalized.
In Caban, a mother of illegitimate children and her husband filed a petition for adoption. The children's natural father filed a cross petition to adopt. The New York Surrogate's Court granted the mother's petition, and the natural father appealed. The decision was affirmed by the Supreme Court, Appellate Division, and subsequently affirmed by the New York Court of Appeals.
On appeal, the U.S. Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of sex discrimination. The unwed father in Caban had lived with the mother of the children for five years prior to the birth of the children. The Court held that he had the right to block their adoption by a man who subsequently married the mother.
Consents that are signed by the parents either immediately before or after the birth of the child may be particularly subject to challenge by the natural mother. Owing to the mother's weakened physical and mental condition, findings of involuntary consent frequently have been handed down in such cases.
A parent can forfeit the right to give or deny consent for the adoption of his or her child in certain instances. Abandonment, the nonperformance of the natural obligations of caring for the child, including support, is one such case. The parent and child will ordinarily be kept together by the courts when the parent exhibits a continuing interest in the child's welfare.
A finding of abandonment may terminate a parent's rights and free the child for adoption with or without parental consent. A parent's rights may also be severed in cases of serious child abuse or neglect. Some statutes provide that a noncustodial parent cannot veto an adoption; however, that parent is generally entitled to be heard when a court considers the case. This is particularly true when the parent has established some kind of family tie with the child, either by having been married to, or having lived with, the custodial parent or by taking the child into his or her home.
State law may require that if a child has been placed in the custody of an agency, the agency's consent is a prerequisite for an adoption. Similarly, consent of a guardian having custody of a child is necessary. The consent of the natural mother's parents may also be required if she is under eighteen years of age and unwed.
Invalid Consent If coercion or deception plays any part in the decision to terminate parental rights, the birth parent's consent may be ruled invalid. In the wake of the highly publicized battle over "Baby Jessica," it appears that regardless of the length of time or quality of a child's placement, the consent rights of the birth parents outweigh the best interests of the child.
In an agonizing case that divided the adoption community, Michigan couple Roberta DeBoers and Jan DeBoers lost custody in 1993 of Jessica, the two-and-a-half-year-old child they had raised from birth (In re Clausen, 442 Mich. 648, 502 N.W.2d 649 ). Courts in both Iowa and Michigan concluded that the necessary consent by Iowa birth parents Cara Schmidt and Daniel Schmidt was flawed. After a protracted legal battle, Jessica was ordered to return to Iowa to live with her biological parents.
Shortly after Jessica's birth on February 8, 1991, the DeBoers filed a petition in Iowa juvenile court to adopt her. The couple, who for ten years had tried to conceive or adopt a child, were named her temporary guardians and custodians. When Jessica was less than four weeks old, however, birth mother Cara Clausen sued to have her maternal rights restored. The birth father, Dan Schmidt, also sought custody.
Unmarried at the time, Clausen had signed a release-custody form, terminating her parental rights, approximately forty hours after giving birth to Jessica. (Iowa law requires a seventy- two-hour waiting period before waiving parental rights.) The man Clausen identified as the child's father—not Schmidt—also signed a release form. Seventeen days later, Clausen informed Schmidt that she had lied on the release form and that Schmidt was actually the father.
On March 6, 1991, Clausen sought to revoke the custody agreement, naming Schmidt as the child's father. Upon learning that he was the baby's father, Schmidt filed an affidavit of paternity and asked for a court intervention to prevent the adoption proceedings. Clausen and Schmidt were married shortly thereafter.
The district court and subsequent courts determined that Dan Schmidt was indeed the biological father and that he had not agreed to have his parental rights terminated. Because he had not abandoned the baby, it was not clearly in the best interests of Jessica to remain with the DeBoers. Also, the parental rights waiver signed by Cara Schmidt was invalid because the statutorily imposed waiting period had not been observed. Therefore, early in the legal skirmish, the court ordered the baby returned to the Schmidts.
The DeBoers continued to fight Jessica's removal from their custody. With the legal maneuvering and delays, the case stretched out over a twenty-nine-month period. By the end, the DeBoers had developed a close bond with Jessica, even though they knew from the time Jessica was an infant that their claim to her might not hold up in court. But with the passage of time, the DeBoers could make a powerful claim that Jessica needed them more than the Schmidts. After all, they were the only parents she knew. The DeBoers argued that it was in Jessica's best interests to remain with them, or she could face possible emotional and psychological damage.
After Iowa courts refused to change position on the custody, the DeBoers took their case to Michigan, hoping that the best-interests-of-the-child argument would be persuasive. However, Michigan courts also agreed that Jessica should be returned to her Iowa birth parents. She was delivered to the Schmidts on August 2, 1993, and renamed Anna.
Methods of Adoption
There are several types of adoption placement procedures. Foreign adoptions are affected by the policies and procedures of the adoptees' countries. Agency placement and independent placement are governed by statute, as is adoption by contract or by deed. Some people adopt through illegal purchase of a child or arrange to have a child by a surrogate mother.
Foreign Adoption Because of the scarcity of healthy babies for adoption in the United States, many U.S. citizens are pursuing adoption of orphaned and abandoned babies from foreign countries.
Most U.S. parents with children in foster care do not relinquish their parental rights. Foster children in the U.S. may also be difficult to place because many are older and carry the emotional scars of physical or sexual abuse.
Since the 1950s, U.S. couples have adopted thousands of Korean children. The number of Korean adoptions is declining, however, reportedly because the Korean government is uncomfortable with its reputation as a baby exporter. On the other hand, children from South America are being adopted in greater numbers by U.S. citizens, as are children from China, Romania, and Russia. In these countries, poverty, natural disasters, abandonment, war, and collapsed governments have resulted in an increased population of needy children.
Each country has different adoption policies regarding the age, income level, and marital status of prospective parents. Often, foreign adoptions are handled privately. Countries may allow children to be escorted to the United States or may require adoptive parents to come and stay for days or even months to complete the adoption paperwork. The costs of adoption also vary from nation to nation.
Agency Placement In agency placement of a child, the arrangements are made by a licensed public or private agency. Such agencies exist solely for the placement of children, and part of their responsibility involves a thorough investigation of the suitability of the potential adoptive parents. Such an investigation is ordinarily quite detailed and takes into consideration the background of both child and prospective parents.
Statutes generally provide for agencies that are operated or licensed by the government to act in an intermediary role between natural and adoptive parents. The method by which a child is transferred to an adoption or placement agency is by the execution of a formal surrender agreement that the natural parents sign. By surrendering a child to an agency, the parent relinquishes all rights to the child. The agency is then given complete authority to arrange for adoption. In arranging for an adoption, agencies must take into consideration such issues as whether a particular child is a proper subject for adoption, whether the proposed home is a suitable one, and whether the adoption is in the child's best interests.
Agency placement has three basic advantages: (1) It minimizes such risks as the adoption of nonhealthy children, the discovery of the adoptive parents' identity by the natural mother, and the natural mother's changing her mind about the adoption. (2) The suitability of adoptive parents is determined by a stringent investigation, which minimizes the risk that a child will be adopted by unfit parents. (3) Adoption through an agency minimizes fees incidental to the adoption.
One essential disadvantage of agency placement is that it involves a long, detailed process. The adoptive parents might be forced to wait for many months while they are being investigated as to their suitability. A second disadvantage of agency placement is that only a limited number of children are available for adoption through agencies.
Independent Placement In independent placement, or private adoption, a child is directly transferred from the natural mother, or her representative, to the parents seeking to adopt. This type of placement is ordinarily arranged by the natural mother's family or doctor. Generally, neither the natural nor the adoptive parents are thoroughly investigated. The adoptive parents often arrange to pay all medical bills incidental to the pregnancy and birth, in addition to legal expenses. Private adoptions are lawful in most states.
Like agency placement, independent placement has both advantages and disadvantages. Private placement facilitates the adoption of a child by parents who might otherwise be forced to endure an extended waiting period or who might be unable to find a child through agency channels because of stringent requirements or mere nonavailability of adoptable children. As with all adoptions, there is an inherent risk that the natural mother might change her mind and never complete the adoption procedure. With some private adoptions, the natural mother remains anonymous. With others, her identity is known to the adoptive parents at the outset.
Independent placement aids mothers who do not have financial resources, by arranging for the payment of medical expenses by the adoptive parents. Such a procedure can, however, lead to a black market if not carefully monitored.
Other disadvantages of private placements are the risks of adoption of an unhealthy child or of nonsuitability of the adoptive parents.
Some states prohibit lawyers from obtaining babies for adoption by clients under any circumstances. Attorneys, however, are ordinarily permitted to accept fees for handling the legal aspects of adoption.
Surrogate Motherhood During the 1980s, many infertile couples turned to surrogate motherhood as an alternative to traditional adoption. A surrogate mother was paid a fee to bear a child conceived through artificial insemination. Once the child was born, the surrogate mother agreed to terminate her parental rights in favor of the sperm donor, typically the husband of the woman unable to have children. For public policy reasons, paid surrogate motherhood has been denounced as an unacceptable means of buying and selling babies.
The wrenching "Baby M" case proved to be the ultimate downfall of surrogate motherhood contracts. In in re baby m, 109 N.J. 396, 537A.2d 1227 (1988), Mary Beth Whitehead entered a written agreement to bear the child of William Stern, whose wife, Elizabeth Stern, was unable to have children. Whitehead was to be paid $10,000 for her services. When the baby girl was born in 1985, Whitehead refused to give her up and fled with the infant to Florida. Four months later, she was apprehended by authorities, who gave the baby over to the Sterns.
Despite Whitehead's efforts to regain the child, the New Jersey Superior Court stripped her of parental and visitation rights and allowed the Sterns to adopt the baby, whom they had named Melissa. The decision had little to do with adoption policy but centered primarily on contract enforcement. The court ruled that Whitehead was obligated to honor her contract with the Sterns.
The New Jersey Supreme Court reversed the lower-court decision, declaring that surrogate motherhood contracts are unenforceable because they violate public policy. The Sterns were allowed to maintain custody of Baby M, although the adoption was voided and some of Whitehead's parental and visitation rights were restored. After the decision, most states passed legislation to prohibit surrogate motherhood contracts altogether.
Adoption by Contract or Agreement Generally, an adoptive relationship cannot be formed by private contract, either express or implied. Although adoption contracts are not usually considered to be injurious to public welfare, they are discouraged on the basis of the principle that a parent should not be permitted to trade away his or her child.
A court may, however, choose to treat a contract of adoption as an agreement to be enforced, with the outcome being equivalent to a formal adoption. The courts have upheld contracts between parents and institutions. In addition, in a number of states, an adoption contract between a natural parent and an institution that provides that the parent is not to be informed of the child's location is enforceable.
Since courts are not eager to deprive natural parents of the right to care for a child, adoption contracts are not enforced when they are in conflict with the welfare of the child. Some states provide that a contract made by one parent alone, absent a showing of clear consent by the other, is not valid. The procedure for adoption by a written declaration or deed is permitted in some states. Ordinarily, it must be properly recorded before the adoption will be valid.
Revocation A court will allow an agreement for the adoption of a child to be broken by a natural parent if the circumstances warrant it, such as when a parent was forced into an adoption agreement.
The court has discretion over whether to permit revocation of an adoption agreement. In such cases, the court will scrutinize the circumstances under which the parent gave consent as well as the parent's reasons for revoking the contract.
Consequences of Adoption
Adoption ordinarily terminates the rights and responsibilities of the natural parents to the child. The death of an adoptive parent does not restore the rights of the natural parents.
Adoption creates the same rights and responsibilities between a child and adoptive parents as existed between natural parent and child. An adopted child is entitled to the same rights as a natural child. When an adult is adopted, however, the adoptive parent does not assume the usual duty of support.
State law governs whether or not the name of a child will be affected by adoption. When a minor child is adopted, his or her legal residence is changed from that of the natural parent to that of the adoptive parent.
Inheritance A state legislature has the authority to impart or remove inheritance rights of adopted children or adoptive parents. Statutes usually provide that adopted children can inherit from adoptive parents in the same capacity as natural children and, conversely, adoptive parents can inherit the property of an adopted child who predeceases them.
Revocation of Adoption
If an adoption decree is acquired by fraud, it may be revoked. In addition, in the absence of the requisite consent of all concerned parties, an order of adoption is void. After a decree is revoked, a child assumes the status she or he had prior to the adoption proceedings.
Summary of Adoption Procedure
The formal steps in adoption of a child are generally uniform in all states.
Notice Notice of adoption proceedings is given to all parties who have a legal interest in the case except the child. In the case of illegitimacy, both natural parents should be given notice if they can be located.
Some statutes provide that a parent who has failed to support a child is not entitled to notice. Ordinarily, a parent who has lost custody of a child in a divorce or separation case is, however, entitled to notice. Similarly, an adoption agency that has custody of the child is entitled to notice.
Petition The parents seeking to adopt must file a petition in court that supplies information about their situation as well as the situation of the child. The filing of a proper petition is ordinarily a prerequisite to the court's jurisdiction.
The petition indicates the names of the adoptive parents, the child, and the natural parents, if known. In addition, the child's gender and age are stated, and some states mandate that a medical report on the child must also accompany the petition. An example of such a petition is found on page 98.
Consent Written consent of the adoption agency or the child's natural parents accompanies the petition for adoption. Consent of the natural parents is not required if their parental rights have been involuntarily terminated as a result, for example, of abandonment or abuse of the child.
Hearing A hearing is held so that the court may examine the qualifications of the prospective parents and either grant or deny the petition. There must be an opportunity for the parties to present testimony and to examine witnesses at such a hearing.
Adoption proceedings are confidential, so the hearing is conducted in a closed courtroom.
Ordinarily, the records of an adoption hearing are available for inspection only by court order. Confidentiality is thought to promote a sense of security for the child with his or her new family.
Probation Most states require a period of probation in adoption proceedings. During this period, the child lives with the adoptive parents, and the appropriate state agency monitors the development of the relationship. The agency's prime concern is the ability of the adoptive parents to properly care for the child. If the relationship is working well for all concerned parties, the state agency will request that the court issue a permanent decree of adoption.
If the relationship is unsatisfactory, the child is either returned to his or her previous home or is taken care of by the state.
Decree An adoption decree is a judgment of the court and is given the same force and effect as any other judgment.
Birth Certificate Following the adoption proceedings, a certificate of adoption is issued for the adopted child, to replace the birth certificate. It lists the new family name, the date and place of the child's birth, and the ages of the adoptive parents at the time the child was born.
Generally, the certificate of adoption does not indicate the names of the child's natural parents or the date and place of adoption. A child may never know that he or she was adopted unless the adoptive parents reveal the information, since the old birth certificate is sealed away and may be opened only by court order.
Right to Information on Natural Parents
Ordinarily, all information concerning an adopted child's origins is sealed, in compliance with the court adoption proceedings, to facilitate development of a relationship between the adoptive parents and child free from the natural parents' influence.
Most state statutes deny adoptees access to records that disclose information about the natural parents. Often, the natural parents make their consent to the adoption contingent upon the condition that no information about them should ever be revealed.
In recent times, because of a growing public interest in tracing ethnic and family backgrounds, many adoptees, as adults, have been calling for the right to obtain access to sealed adoption records.
The adult adoptees recognize that a disclosure of this kind of information could be traumatic to minor adoptees, but they contend that lack of access could cause serious psychological trauma to them as adults. In addition, they cite medical problems or misdiagnoses that could be caused by absence of genetic history, lack of religious identity, and fear of unwitting incest.
Adult adoptees contend that most adoption statutes do not make a distinction between adoptees as minors and later as adults, which causes the adults to be deprived of the right to trace their background. In addition, the adults allege that they have been denied equal protection of law because their status precludes them from receiving medical information readily available to nonadoptees.
Various approaches are being used to resolve this problem. One approach involves the enactment of a legislative requirement that public and private adoption agencies be required to open their records upon request to adults who were adopted as children, with certain limitations. For example, if the child had been placed by the natural parents prior to the effective date of the legislation, the natural parents could prevent the adoptee from seeing the records.
The issue of right to access to adoption records by adoptees when they reach adulthood also encompasses the legal consideration of the natural parents' right to privacy, which could be violated if free access to sealed court records were given to adult adoptees. The adult adoptees' right to know must be balanced against their natural parents' right to privacy. The way to achieve such a balance, however, has never been clearly determined.
In September, 1999, Tennessee's Supreme Court overturned the Tennessee Court of Appeals ruling in Doe v. Sundquist, 2 S.W.3d 919 (Tenn., Sep 27, 1999) (NO. 01-S-01-9901-CV00006), which challenged a law passed in 1995 that unsealed both adoption records and original birth certificates to adult adoptees. Earlier, the 6th Circuit Court of Appeals had ruled in favor of the state and opined, much to the dismay of sealed records advocates: "A birth is simultaneously an intimate occasion and a public event—the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth," Doe v. Sundquist, 106 F.3d 702, 65 USLW 2527, 1997 Fed.App. 0051P (6th Cir.(Tenn.) Feb 11, 1997) (NO. 96-6197). The U.S. Supreme Court, however, elected not to hear the Tennessee case.
Carp, E. Wayne, ed. 2002. Adoption in America: Historical Perspectives. Ann Arbor: Univ. of Michigan Press.
DuPrau, Jeanne. 1990. Adoption. Englewood Cliffs, N.J.: Messner.
Marshner, Connaught, ed. 1999. Adoption Factbook III. Washington, D.C.: National Council for Adoption.
Melosh, Barbara. 2002. Strangers and Kin: The American Way of Adoption. Cambridge, Mass.: Harvard Univ. Press.
Rundberg, Gayle D. 1988. How to Get Babies through Private Adoption. Bend, Ore.: Maverick.
Sloan, Irving J. 1988. The Law of Adoption and Surrogate Parenting. London: Oceana.
Adoption is an institution as old as civilization. It may be defined as a social transaction through which a person belonging by birth to one family or kinship group acquires, through legal means, a new family or new kinship ties.
In its broadest sense, the term "adoption" may be used to describe the taking in, nurturing, and rearing of biologically unrelated children in need of protection and care. The terms "adoption" and "fostering" are used interchangeably in some countries, but in the United States adoption, in contrast to temporary foster arrangements, is a legal and permanent transaction.
Shaped by the laws and cultures of each society, adoption was seldom concerned primarily with rescuing abandoned children but rather with the transfer of a child or adult from one set of parents to another in order to ensure property rights or family continuity. Yet the perception of adoption has always wavered between the legal fiction that a child is reborn into the adoptive family and the folk belief that blood is thicker than water. The Egyptians and the Hebrews practiced adoption; the Old Testament chronicles the story of Moses, who was adopted by the daughter of the Pharaoh but later returned to his people and led them out of bondage.
Roman law, the foundation of institutionalized legal adoption, was concerned primarily with property and inheritance rights but permitted birth parents to reclaim their abandoned children if they paid expenses incurred by the adoptive parents (Boswell). The Code of Napoleon, enacted in 1804, which was the beginning of modern adoption legislation and is still a major influence in French and Latin American law, allowed adoptees to have knowledge of family background and the option to retain their original name. The modern French government social security system provides for both "simple" (open) adoption and "complete" (closed) adoption.
English common law, the basis for U.S. law, stressed blood lineage and did not legalize stranger adoption, the total legal transfer of the child to nonrelatives, until 1926. Until then, a form of apprenticeship existed in which children lived with and worked under the master training them. Orphans were sent as indentured servants to the American colonies to help with the labor shortage. Economic considerations superseded any concern for the welfare of the individual child.
From the mid-nineteenth century until the beginning of the twentieth century, New York City street urchins were routinely rounded up and loaded into boxcars on "orphan trains" that carried them to "God-fearing" farm families in the West. There were no legal contracts or protections for the children who, once severed from their families, were regarded as orphans and forced into a life of domestic or manual labor thousands of miles away.
The transition from apprenticeship and indenture to present-day adoption was gradual in the United States, but by 1929 every state had some form of statutory adoption. Licensed adoption agencies established in the 1920s investigated prospective adoptive families to try to ensure the wellbeing of adopted children. Adoption records were open, but in the late 1930s a few states began to close them.
After World War II, U.S. adoption shifted its focus from the needs of homeless children to the desires of infertile couples to adopt healthy white newborns. Adoption became the means for the childless to create a family. As state after state closed their records, the adopted child's birth certificate was sealed and replaced with an amended document that named the adoptive parents as the birth parents. The original intent was to spare the child the stigma of illegitimacy, not to cut him or her off from the birth heritage. Over the years the rationale of protecting the confidentiality of the birth mother was added, but an even greater concern was the protection of the adoptive parents, who feared the birth parents might reappear to reclaim their biological, though no longer legal, child. By 2003 all but six states had sealed records.
Adoption Practice in the United States in the Mid- to Late Twentieth Century
The social upheavals of the 1960s and 1970s had a major impact on adoption practice. The legalization of abortion, along with the widespread use of contraceptives and the increased tendency of unmarried mothers to keep their children, led to a shortage of white, adoptable newborns. At the same time, there was a rise in infertility among couples who delayed having children.
The states regulate adoption practice; most states permit both independent and agency adoption. As the shortage of white, adoptable babies grew more acute, adoption became a commercial enterprise. Lawyers and "baby brokers" took over most infant adoptions from the agencies, frequently using newspaper advertisements to entice pregnant women and couples to give up their children with offers of money and other benefits.
Without regulation by the child-welfare field, there is little protection for the baby and both sets of parents. Prospective adopters may spend a great deal of money for medical, living, and legal costs only to have the pregnant woman change her mind and keep the baby or choose another family. Conversely, a birth mother who has been promised open communication with the adoptive parents and the child may find herself cut off once the adoption is finalized. Or the birth mother may break her promise to stay in touch with the family if she finds visits too difficult to continue. Safeguards for the baby are lacking when the investigation of the family by an agency occurs after the infant is already in the home and petition has been filed for legal adoption.
Special Needs and Biracial Adoption
In the 1990s adoption agencies, both private and public, focused primarily on finding families for "hard to place" children, a category that includes older children, sibling groups, disabled children, and biracial or minority-racial children. The U.S. Department of Human Services estimated in 1998 that 520,000 children lived in foster care in the United States, a sizable increase from 1992. About 110,000 children were reported to be legally free for adoption. Many child-welfare specialists believe that if sufficient effort were expended, homes could be found for them. Some states offer subsidies to families who are willing to adopt and raise disabled children. Single persons and gay and lesbian couples, not generally approved for newborn babies, are often considered acceptable for placement of children who otherwise might not find permanent homes. This remains a controversial issue in some parts of the United States, as a number of individuals and groups question the ability of these nontraditional adoptive parents to raise healthy, normal children.
In 1972 the National Association of Black Social Workers (NABSW) launched a campaign against allowing white families to adopt black or biracial children. The NABSW called this practice genocide. They maintained that, with enough effort and focus, black families could be found for these children. Proponents of interracial adoption argue that the benefits children gain from having permanent and loving homes outweigh the social and psychological difficulties they may face because of society's prejudice toward mixed-race families. Mental-health professionals generally agree that permanency, whether with legal adoption or long-term placement, is a paramount need for all children; they believe that growing up without roots and a stable home is a primary cause of lifelong problems. Many child advocates prefer that a child be placed with his or her extended family or within his or her community of race or religion, but accept the fact that biracial placement is preferable to no permanency as long as the families are sensitive to biracial issues and seek integrated communities in which to raise their children.
Adoption of Native American children is a related and equally controversial issue. Many Native Americans believe that adoption by Caucasians robs them of their children and robs the children of their native heritage. When Congress enacted the Indian Child Welfare Act of 1978, giving tribal courts exclusive jurisdiction over adoption proceedings involving Native American children, each tribe developed its own guidelines concerning the Native American lineage a child needed to qualify as a member. Children identified as members of a particular tribe must be placed for adoption with a family of that tribe.
The shortage of desirable adoptable babies in the United States has led many who wish to adopt to seek children in other countries. The first international adoptions generally involved Amerasian children, that is, those fathered by GIs in Japan during and after World War II, in Korea during and after the Korean War, and in Vietnam during the U.S. involvement there. These adoptions were first sponsored by church groups and then by licensed adoption agencies (Lifton, 1994).
Since the middle of the 1980s, international adoption has shifted from the rescue of war orphans to the legal or (in some cases) illegal trafficking of children. Most of the children are drawn from Korea, China, Russia, Eastern Europe, and Latin America because these countries have made the emigration of children more accessible. Human-rights organizations report that many children are taken away from their families without formal relinquishments (Mantaphon). Studies of intercountry adoptions suggest that children cut off from their own culture and transplanted into a totally foreign environment may be more vulnerable to emotional problems (Verhulst et al., 1990a, 1990b). Many have difficulty in attaching to their new family or feeling part of the community, where they may not find full acceptance because of racial differences.
The 1989 U.N. Convention on the Rights of the Child addressed the rights of the adopted child along with the rights of all children. According to the convention, each child has a right to receive a name, to acquire a nationality, and, as far as possible, to know and be cared for by his or her parents. A child placed outside of his or her family of origin has the right to maintain contact with his or her birth parents.
The Sealed-Record Controversy
For over half a century, closed adoption (i.e., with sealed records) was viewed by U.S. society as beneficial to everyone: The homeless child born out of wedlock was given a second chance in a new family, the infertile couple was able to become "real" parents, and the birth mother was free to go on with her life as if she had never had a child. Yet research conducted since the mid-1970s has consistently indicated that the secrecy in the closed-adoption system can often create lifelong psychological problems for everyone involved (Sorosky et al.).
Although adopted children comprise less than 5 percent of the population, the percentage of adopted children in mental-health facilities and residential treatment centers has been reported to be as high as 30 percent. Some researchers have found that adopted children score lower in academic achievement and social skills than the nonadopted, have a high incidence of learning disabilities, and display behavior characterized as impulsive, aggressive, and antisocial (Schecter et al.; Brodzinsky and Schecter; Brinich). Psychotherapists have postulated that an adopted child's perception of rejection and abandonment by the birth mother can cause low self-esteem. Ignorance of origins ("genealogical bewilderment") can lead a child to rebellion against the adoptive parents and society, and eventually to delinquency (Wellisch; Sants; Kirschner and Nagel).
Women who relinquish their infants often suffer a profound loss and experience lifelong difficulties. Like the child, they are encouraged by society to deny and repress the feelings that accompanied giving up their children for adoption. Some studies indicate that these women never forgive themselves. Some may feel they have no right to a happy marriage and other children, while others may try without success to have other children as replacements for the one that they relinquished (Deykin et al.; Millen and Roll).
The closed-adoption system also encourages adoptive parents to deny their grief at not being able to produce a child that will carry on their lineage. They are expected to conceal their unresolved conflicts over infertility as they pretend that adopting a child is the same as giving birth (Blum). Adoptive parents who are able to acknowledge the differences between an adoptive and birth family, instead of denying them, have been shown to have better communication and closer relationships with their children (Kirk).
The closed-adoption system tends to pit the right of the adopted child to know the identity of his or her birth parents against the right of the birth mother to confidentiality, and against the right of the adoptive parents to maintain exclusive parental roles. The National Council for Adoption (NCFA), a lobbying organization representing traditional adoption agencies, contends that sealed records protect the privacy of the birth mother, who was promised confidentiality (Caplan). A national birth-parent group, Concerned United Birth Parents (CUB), argues that the majority of birth mothers did not ask for confidentiality and in fact want to have knowledge of or some contact with the children they gave birth to. Until 1976, birth fathers had no rights, only responsibilities. At that time, the U.S. Supreme Court gave birth fathers equal right of consent with birth mothers in adoption arrangements.
Search and Reunion
One of the effects of the civil-rights movement of the 1960s was the emergence of an adoption-reform movement led by adult adoptees. Its rallying cry was that the civil rights of the adopted had been violated when their original birth records were sealed, denying them access to information available to nonadopted people. Adoption support groups have been established across the United States to provide emotional support, lobby for open records, and facilitate the search for birth parents.
Some states, rather than open their previously sealed adoption records, have established "reunion registries" that will connect adoptees with their birth parents if both register and indicate their mutual desire. In other jurisdictions, there is an intermediary system, in which the court, or an adoption agency is empowered to search for the birth mother if an adoptee requests a reunion. The birth mother retains the right of refusal of contact. Adopted activists believe that both registries and intermediaries violate their right to information and the ability to make direct contact with birth relatives.
More adopted women search for their birth parents than adopted men. The quest to find the birth mother is usually stronger than the need to locate the birth father. Adoptees tend to begin their search when they become aware of formerly repressed feelings that often surface at times of life transitions, such as impending marriage, parenthood, or death of adoptive parents (Sorosky et al.; Lifton, 1988).
The secrets inherent in the closed-adoption system make reunion difficult for both birth mother and adoptee. To return to each other is to return to their earlier traumas. The adoptee experiences grief, anger, and divided loyalties; the birth mother relives the unresolved sadness, guilt, and humiliation she felt at the time of pregnancy, birth, and relinquishment (Lifton, 1994).
No matter whom adoptees find—a loving, a withholding, or even a deceased parent—the opportunity to heal arises when they can integrate the past with the present. Adoptees' relationship to their adoptive parents is usually strengthened once they have resolved their identity issues. Reality replaces their fantasies, and they are able to recognize the important role of their adoptive parents (Gonyo and Watson; Sorosky et al.; Lifton, 1994). Birth parents also enter a healing process after reunion because they have the opportunity to explain to their child why they relinquished him or her and to forgive themselves and be forgiven (Gediman and Brown).
Some adoptees and birth parents develop close, ongoing kinship ties. Others maintain a more distant relationship that may involve little more than exchanging holiday cards. A few, after one or two meetings, close off contact. Whatever follows the reunion, however, the individuals involved have been able to take control of this important aspect of their lives.
Open versus Closed Adoption
Since the early 1980s there has been a trend toward openness in adoption. In the placement of older children, good adoption practice dictates providing each child with a "life book" that has information and photographs about their history. Often these children are encouraged to maintain contact with the previous foster mother and with relatives, such as grandparents, in the extended birth family.
In infant adoption, a birth mother may choose the parents for her baby, but completely open arrangements—where there is an ongoing relationship between birth and adoptive families—are still rare. Semi-open adoption is more usual. It may vary from little more than a single meeting between the birth mother and adoptive parents, with no disclosure of names or discussion of future contact, to annual exchanges of photographs and information and the promise of more contact when the child grows up (McRoy et al.). Professionals describe open-adoption arrangements as a process in which all parties move at their own pace over the years (Silber and Dorner).
Opponents of open adoption argue that it makes it difficult for the birth mother to accept that she has given up a child, that it hinders adoptive parents in forming secure ties with an infant, and that it deprives the child of a sense of permanence with the adoptive family (Caplan). Proponents of open adoption believe that birth mothers who take an active part in the placement process can resolve their guilt and grief about giving up their baby; that it obviates adoptive parents' fantasies about the child's background because they have facts; that it permits adopted children to know that their birth parents are real persons, not ghosts; and that they were not given up because there was something wrong with them (Silber and Dorner).
Court Battles between Birth Parents and Adoptive Parents
Since the mid-1980s the number of contested adoption cases has multiplied. Many have been brought by birth mothers (and increasingly by birth fathers) who feel that they did not receive proper counseling or enough time, or were coerced into signing relinquishment papers. When the birth mother seeks the return of the child, lawyers for the adoptive parents may delay action in order to prolong the child's presence in the adoptive home. The longer that period, the stronger the argument that it is in the best interests of the child to stay in the only home he or she has ever known. Adoptive-parent lobbies seek to limit the time that birth parents may have to revoke their consent or relinquishment. There is also a strong movement to develop uniform state laws that would limit the problems of inter-state placements and decrease the legal conflicts of different jurisdictions.
The adoption field is betwixt and between stasis and change. The records remain sealed in most states, but the traditional closed system is gradually giving way to a more open one that allows birth parents and adoptive parents to meet and even maintain contact over the years for the sake of the child.
Adoption practice is no longer exclusively concerned with healthy white newborns. Adoptees include transracial and biracial children and older handicapped children with special needs. Standards for adoptive parents, once modeled on white, middle-class, heterosexual couples, have changed to include single parents, homosexual couples, and minority and biracial couples of any age.
Uniform state laws are necessary to regulate adoption practice, but there is much disagreement about the relative importance of birth-parent versus adoptive parent rights. The term "best interests of the child" has come to mean whatever people want it to mean. Prospective adoptive parents and birth parents find themselves in adversarial roles where their own best interests may conflict with the best interests of the child.
Adoption-reform activists believe it is in the best interests of the child to have adoption practice limited to nonprofit agencies and child-welfare specialists. They stress the need for adequate legal and psychological counseling for both birth parents and adoptive parents before and after the birth of the baby and especially before finalizing relinquishment plans.
Reformers would like to see adoption records unsealed so that adopted children can integrate their dual heritage and avoid many of the psychological problems that are caused by secrecy. They advocate a nationwide program that would promote sex education, pregnancy prevention, family preservation, and legally enforced open-adoption arrangements when relinquishment and placement are necessary.
Twenty-First Century Adoption Practices
During the late 1990s, laws erasing the secrecy and anonymity of the last century of adoption practice have been enacted in a number of states. Adopted adults are gaining access to their original birth certificates through legislative acts and voter referendums, despite the fact that there is still resistance to opening adoption records in most states. However, even in states where the records remain sealed, there has been an increase in reunions between birth parents and adoptees relinquished in infancy or childhood.
The Internet has revolutionized the adoption field. Searches for identifying information have become easier than in previous decades due to the nation's fascination with genealogy and the growth of databases on the Internet. Potential adopters and pregnant women considering relinquishment are also using the Internet to make contact. Families with special-needs children can turn to a variety of websites, help lines, chat rooms, and referral sources. There are also special websites on international adoption that lay out the unique problems one can encounter in the various countries where children are available.
The lucrative business of adoption in the marketplace continues to grow as attorneys, private agencies, and intermediaries use the Internet for networking in both domestic and international placements. International adoption is increasing as the number of adoptable healthy newborn Caucasian infants born in the United States decreases. Most women, married or single, choose to raise, rather than relinquish, their babies. Potential adoptive couples fear that even those women who initially choose to relinquish their babies will change their minds, or that the birth father will challenge the legality of the adoption. The publicity around and pain caused by contested adoptions has resulted in the introduction of new codes and procedures in many states to act as safeguards.
At the same time, open arrangements between birth and adoptive families in the United States are becoming the accepted practice with both infants and older children. The degree of openness varies and may be modified over the years, but all parties generally have identifying knowledge of each other. Agencies and other adoption practitioners can no longer offer guarantees of confidentiality or anonymity. In fact, many agencies offer post-adoption services in which they act as intermediaries in reunions, conduct support groups, and do counseling with all members of the triad.
By the beginning of the twenty-first century, private and public adoption agencies served different communities. The private agency or practitioner deals primarily with Caucasian infants born in the United States and with international adoptions of infants and toddlers. Public agencies, connected to the welfare system, place special-needs children. These children are usually older, part of a sibling group, non-Caucasian, racially mixed, or with medical or developmental problems. The federal government has enacted special programs, with financial incentives to local public agencies, to increase the numbers of children moving from foster home placement into permanent or adoptive homes. In both public and private agencies, there is greater acceptance of adoptions by single persons and gay and lesbian couples.
Those couples or individuals who prefer international adoption discover that the availability of children and the cost involved shifts from country to country, depending on political, economic, and legal issues. Regulations in the United States as well as in the country of the child's origin and in international umbrella agencies all contribute to the complicated procedures facing those applying to adopt. Nevertheless, a growing number of children are adopted through these routes. Those who choose international adoption to avoid the risk of legal challenges or interference from the birth parents overlook the psychological need of adopted children to know their heritage. Many young adults adopted from Asia, Europe, and South America have returned to seek their biological families in an attempt to resolve their ethnic, racial, and cultural identity.
Another revolutionary development in the adoption field is its connection with alternative reproductive techniques. Adult children who have learned they were conceived by donor insemination have organized a world wide movement, still small in number, to gain the right to have identifying information about their fathers. They refer to themselves as "in utero adoptees." Their initiative has brought about a growing acceptance of the right to access of identifying information in both egg and sperm donations. The American Adoption Congress recognizes donor offspring as adoptees, and advocates opening their records, as well as promoting future openness in all alternative family building methods. Embryo adoptions are being seriously considered as an alternative, due to the surplus of fertilized embryos no longer needed by couples. Rather than defrost and destroy them, a few agencies are encouraging donation of these embryos to infertile couples.
Researchers have not yet determined what the psychological effects will be on children born to parents to whom they are not genetically related when they learn of their high tech origins. One thing is certain: that they will ask the same question that legions of adoptees since Oedipus have struggled with: "Who Am I?"
betty jean lifton (1995)
revised by authors
Blum, Harold P. 1983. "Adoptive Parents: Generative Conflict and Generational Continuity." Psychoanalytic Study of the Child 38: 141–163.
Boswell, John. 1988. The Kindness of Strangers: The Abandonment of Children in Western Europe from Late Antiquity to the Renaissance. New York: Pantheon.
Bowlby, John. 1982. Attachment and Loss, 2nd edition. New York: Basic Books.
Brinich, Paul. 1989. "Psychoanalytic Psychotherapy with Adoptees." Paper presented at the 36th Annual Meeting of the American Academy of Child and Adolescent Psychiatry, New York, October 13.
Brodzinsky, David M., and Schechter, Marshall D. 1992. Being Adopted: The Lifelong Search for Self. New York: Doubleday.
Caplan, Lincoln. 1990. An Open Adoption. New York: Farrar Straus Giroux.
Deykin, Eva Y; Campbell, Lee; and Patti, Patricia. 1984. "The Postadoption Experience of Surrendering Parents." American Journal of Orthopsychiatry 54(2): 271–280.
Erikson, Erik H. 1980. Identity and the Life Cycle: Selected Papers. New York: W. W. Norton.
Gaylord, C. Lester. 1976. "The Adoptive Child's Right to Know." Case and Comment 81(2): 38–44.
Gediman, Judith S., and Brown, Linda P. 1989. Birthbond: Reunions between Birthparents and Adoptees—What Happens After. Far Hills, NJ: New Horizon.
Gonyo, Barbara, and Watson, Kenneth W. 1988. "Searching in Adoption." Public Welfare 46(1): 14–22.
Kingsolver, Barbara. 1993. Pigs in Heaven: A Novel. New York: HarperCollins.
Kirk, H. David. 1964. Shared Fate: A Theory of Adoption and Mental Health. New York: Free Press.
Kirschner, David, and Nagel, Linda S. 1988. "Antisocial Behavior in Adoptees: Patterns and Dynamics." Child and Adolescent Social Work 5(4): 300–314.
Lifton, Betty Jean. 1988. Lost and Found: The Adoption Experience. New York: Perennial Library.
Lifton, Betty Jean. 1994. Journey of the Adopted Self: A Quest for Wholeness. New York: Basic Books.
Mantaphon, Withit. 1993. "Sale of Children: Report." Geneva: U.N. Economic and Social Council.
McKenzie, Judith K. 1993. "Adoption of Children with Special Needs." Future of Children 3(1): 62–76.
McRoy, Ruth G.; Grotevant, Harold D.; and White, Kerry L. 1988. Openness in Adoption: New Practices, New Issues. New York: Praeger.
Millen, Leverett, and Roll, Samuel. 1985. "Solomon's Mothers: A Special Case of Pathological Bereavement." American Journal of Orthopsychiatry 55(3): 411–418.
Rynearson, Edward K. 1982. "Relinquishment and Its Maternal Complications: A Preliminary Study." American Journal of Psychiatry 139(3): 338–340.
Sants, H. J. 1964. "Genealogical Bewilderment in Children with Substitute Parents." British Journal of Medical Psychology 37: 131–141.
Schecter, Marshall D.; Carlson, Paul V.; Simmons, James Q., III; and Work, Henry H. 1964. "Emotional Problems in the Adoptee." Archives of General Psychiatry 10(2): 109–118.
Silber, Kathleen, and Dorner, Patricia. 1990. Children of Open Adoption and Their Families. San Antonio, TX: Corona.
Sorosky, Arthur D.; Baran, Annette; and Pannor, Reuben. 1978. The Adoption Triangle: The Effects of the Sealed Record on Adoptees, Birth Parents, and Adoptive Parents. New York: Anchor.
Verhulst, Frank C.; Althaus, Monika; and Versluis-Den Bieman, Herma J. 1990a. "Problem Behavior in International Adoptees: I. An Epidemiological Study." Journal of the American Academy of Child and Adolescent Psychiatry 29(1): 94–103.
Verhulst, Frank C.; Althaus, Monika; and Versluis-Den Bieman, Herma J. 1990b. "Problem Behavior in International Adoptees:II. Age of Placement." Journal of the American Academy of Child and Adolescent Psychiatry 29(1): 104–111.
Wellisch, Erich. 1952. "Children without Genealogy: A Problem of Adoption." Mental Health 13: 41–42.
Winnicott, Donald W. 1955. "Adopted Children in Adolescence." In Report of the Residential Conference Held at Roehampton, July 8–11, 1953, pp. 33–41. Roehampton, Eng.: A. Rampton.
ADOPTION , taking another's child as one's own.
Alleged Cases of Adoption in the Bible
The evidence for adoption in the Bible is so equivocal that some have denied it was practiced in the biblical period.
(a) genesis 15:2–3. Being childless, Abram complains that *Eliezer, his servant, will be his heir. Since in the ancient Near East only relatives, normally sons, could inherit, Abram had probably adopted, or contemplated adopting, Eliezer. This passage is illuminated by the ancient Near Eastern practice of childless couples adopting a son, sometimes a slave, to serve them in their lifetime and bury and mourn them when they die, in return for which the adopted son is designated their heir. If a natural child should subsequently be born to the couple, he would be chief heir and the adopted son would be second to him.
(b) genesis 16:2 and 30:3. Because of their barrenness, Sarai and Rachel give their servant girls to Abram and Jacob as concubines, hoping to "have children" (lit. "be built up") through the concubines. These words are taken as an expression of intention to adopt the children born of the husbands and concubines. Rachel's subsequent statement, "God… has given me a son" (30:6) seems to favor this view. A marriage contract from *Nuzi stipulates that in a similar case the mistress "shall have authority over the offspring." That the sons of Jacob's concubines share in his estate is said to presuppose their adoption. Bilhah's giving birth on (or perhaps "onto") Rachel's knees (30:3; cf. 50:23) is believed to be an adoption ceremony similar to one practiced by ancient European and Asiatic peoples among whom placing a child on a man's knees signified variously acknowledgment, legitimation, and adoption. Such an adoption by a mistress of the offspring of her husband and her slave-girl would not be unparalleled in the ancient Near East (see J. van Seters, jbl, 87 (1968), 404–7), but other considerations argue that this did not, in fact, take place in the episodes under consideration. Elsewhere in the Bible the sons of Bilhah and Zilpah are viewed only as the sons of these concubines, never of the mistresses (e.g., 21:10, 13; 33:2, 6–7; 35:23–26). Rachel's statement "God… has given me a son" reflects not necessarily adoption but Rachel's ownership of the child's mother, Bilhah (cf. Ex. 21:4, and especially the later Aramaic usage in Pritchard, Texts3, 548a plus n. 5). The concubines' sons sharing in Jacob's estate does not presuppose adoption by Rachel and Leah because the sons are Jacob's by blood and require only his recognition to inherit (cf. The Code of Hammurapi, 170–1). Finally the alleged adoption ceremony must be interpreted otherwise. Placing a child on the knees is known from elsewhere in the ancient Near East (see I.J. Gelb et al., The Chicago Assyrian Dictionary, vol. 2 (1965), 256, s.v. birku; H. Hoffner, jnes, 27 (1968), 199–201). Outside of cases which signify divine protection and/or nursing, but not adoption (cf. T. Jacobsen, jnes, 2 (1943), 119–21), the knees upon which the child is placed are almost always those of its natural parent or grandparent. It seems to signify nothing more than affectionate play or welcoming into the family, sometimes combined with naming. (Only once, in the Hurrian Tale of the Cow and the Fisherman (J. Friedrich, Zeitschrift fuer Assyriologie, 49 (1950), 232–3 ll. 38 ff.), does placing on the lap occur in an apparently adoptive context, but even there it is not clear that the ceremony is part of the adoption.) Some construe the ceremony as an act of legitimation, but no legal significance of any sort is immediately apparent. Significantly, the one unequivocal adoption ceremony in the Bible (Gen. 48:5–6) does not involve placing the child on the knees (Gen. 48:12 is from a different document and simply reflects the children's position during Jacob's embrace, between, not on, his knees). Furthermore, Genesis 30:3 speaks not of placing but of giving birth on Rachel's knees. This more likely reflects the position taken in antiquity by a woman during childbirth, straddling the knees of an attendant (another woman or at times her own husband) upon whose knees the emerging child was received (cf. perhaps Job 3:12). Perhaps Rachel attended Bilhah herself in order to cure, in a sympathetic-magical way, her own infertility (cf. 30:18, which may imply that Rachel, too, had been aiming ultimately at her own fertility), much like the practice of barren Arab women in modern times of being present at other women's deliveries. Genesis 50:23 (see below) must imply Joseph's assistance at his great-grandchildren's birth; or, if taken to mean simply that the children were placed upon his knees immediately after birth, it would imply a sort of welcoming or naming ceremony.
(c) genesis 29–31. It is widely held that Jacob was adopted by the originally sonless Laban, on the analogy of a Nuzi contract in which a sonless man adopts a son, makes him his heir, and gives him his daughter as a wife. This in itself is not compelling, but the document adds that, unless sons are later born to the adopter, the adopted son will also inherit his household gods. This passage, it is argued, illuminates Rachel's theft of Laban's household gods (31:19), and herein lies the strength of the adoption theory. But M. Greenberg (jbl, 81 (1962), 239–48) cast doubt upon the supposed explanation of Rachel's theft, thus depriving the adoption theory of its most convincing feature. In addition, the Bible itself not only fails to speak of adoption but pictures Jacob as Laban's employee.
(d) genesis 48:5–6. Near the end of his life Jacob, recalling God's promise of Canaan for his descendants, announces to Joseph: "Your two sons who were born to you … before I came to you in Egypt, shall be mine; Ephraim and Manasseh shall be mine, as Reuben and Simeon are"; subsequent sons of Joseph will (according to the most common interpretation of the difficult v. 6), for the purposes of inheritance, be reckoned as sons of Ephraim and Manasseh. In view of the context – note particularly that grandsons, not outsiders, are involved – many believe that this adoption involves inheritance alone, and is not an adoption in the full sense. (M. David compares the classical adoptio mortis causa.) This belief is strengthened by the almost unanimous view that this episode is intended etiologically to explain why the descendants of Joseph held, in historical times, two tribal allotments, the territories of Ephraim and Manasseh.
(e) genesis 50:23. "The children of Machir son of Manasseh were likewise born on Joseph's knees" is said to reflect an adoption ceremony. To the objections listed above (b), it may be added that unlike (d), Joseph's adoption of Machir's children would explain nothing in Israel's later history and would be etiologically pointless.
(f) exodus 2:10. "Moses became her [= Pharaoh's daughter's] son." Some, however, interpret this as fosterage.
(g) leviticus 18:9. A "sister… born outside the household" could mean an adopted sister, but most commentators interpret it as an illegitimate sister or one born of another marriage of the mother.
(h) judges 11:1ff. S. Feigin argued that Gilead must have adopted Jephthah or else the question of his inheriting could never have arisen. But since Jephthah was already Gilead's son, the passage implies, at most, legitimation, not adoption.
(i) ruth 4:16–17. Naomi's placing of the child of Ruth and Boaz in her bosom and the neighbors' declaration "a son is born to Naomi" are said to imply adoption by Naomi. But the very purpose of Ruth's marriage to Boaz was, from the legal viewpoint, to engender a son who would be accounted to Ruth's dead husband (see Deut. 25:6 and Gen. 38:8–9) and bear his name (Ruth 4:10). Adoption by Naomi, even though she was the deceased's mother, would frustrate that purpose. The text says that Naomi became the child's nurse, not his mother. The child is legally Naomi's grandson and the neighbors' words are best taken as referring to this.
(j) esther 2:7, 15. Mordecai adopted his orphaned cousin Hadassah. (This case, too, is taken by some as rather one of fosterage.) This possible case of adoption among Jews living under Persian rule is paralleled by a case among the Jews living in the Persian military garrison at Elephantine, Egypt, in the fifth century c.e. (E. Kraeling, The Brooklyn Museum Aramaic Papyri (1953), no. 8).
(k) ezra 2:61 (= Nehemiah 7:63). One or more priests married descendants of Barzillai the Gileadite and "were called by their name." This may imply adoption into the family of Barzillai.
(l) ezra 10:44. Several Israelites married foreign women. The second half of the verse, unintelligible as it stands, ends with "and they placed/established children." S. Feigin, on the basis of similar Greek expressions and textual emendation, viewed this as a case of adoption. Since the passage is obviously corrupt (the Greek text of Esdras reads differently), no conclusions can be drawn from it, though Feigin's interpretation is not necessarily ruled out.
(m) i chronicles 2:35–41. Since the slave Jarha (approximately a contemporary of David according to the genealogy) married his master's daughter, he was certainly manumitted and, quite likely, was adopted by his master; otherwise, his descendants would not have been listed in the Judahite genealogy.
(n) In addition to the above possible cases, one might see a sort of posthumous adoption in the ascription of the first son born of the levirate marriage (Gen. 38:8–9; Deut. 25:6; Ruth 4) to the dead brother. The child is possibly to be called "A son of b [the deceased]"; in this way he preserves the deceased's name (Deut. 25:6–7; Ruth 4:5) and presumably inherits his property.
Of the most plausible cases above, two (a, d) are from the Patriarchal period, one reflects Egyptian practice (f), and another the practice of Persian Jews of the Exilic or post-Exilic period (j). From the pre-Exilic period there is a possible case alleged by the Chronicler to have taken place in the time of David (m), one or two other remotely possible cases (g) and (k), the latter from the late pre-Exilic or Exilic period) and the "posthumous adoption" involved in levirate marriage (n). The evidence for adoption in the pre-Exilic period is thus meager. The possibility that adoption was practiced in this period cannot be excluded, especially since contemporary legal documents are lacking. Nevertheless, it seems that if adoption played any role at all in Israelite family institutions, it was an insignificant one. It may be that the tribal consciousness of the Israelites did not favor the creation of artificial family ties and that the practice of polygamy obviated some of the need for adoption. For the post-Exilic per-iod in Palestine there is no reliable evidence for adoption at all.
Adoption as a Metaphor
(a) god and israel. The relationship between God and Israel is often likened to that of father and son (Ex. 4:22; Deut. 8:5; 14:1). Usually there is no indication that this is meant in an adoptive sense, but this may be the sense of Jeremiah 3:19; 31:8; and Hosea 11:1. (b) in kingship. The idea that the king is the son of a god occurs in Canaanite (Pritchard, Texts, 147–8) and other ancient Near Eastern sources. In Israel – which borrowed the very institution of kingship from its neighbors (i Sam. 8:5, 20) – this idea could not be accepted literally; biblical references to the king as God's son therefore seem intended in an adoptive sense. Several are reminiscent of ancient Near Eastern adoption contracts. Thus, Psalms 2:7–8 contains a declaration, "You are my son," a typical date formula "this day" (the next phrase, "I have born you," may reflect the conception of adoption as a new birth), and a promise of inheritance (an empire); ii Samuel 17:7 contains a promise of inheritance (an enduring dynasty), a declaration of adoption, and a statement of the father's right to discipline the adoptive son (cf. Ps. 89:27 ff.; i Chron. 17:13; 22:10; 28:6).
Since the divine adoption of kings was not known in the ancient Near East, and the very institution of adoption was rare – if at all existent – in Israel, the question arises as to where the model for these metaphors was found. According to M. Weinfeld (jaos, 90 (1970)) the answer is found in the covenants made by God with David and Israel. These are essentially covenants of grant, a legal form which is widespread in the ancient Near East. In some of these a donor adopts the donee and the grant takes the form of an inheritance. Thus in the biblical metaphor God's adoption of David serves as the legal basis for the grant of the dynasty and empire, and God's adoption of Israel underlies the grant of a land (Jer. 3:19; also noted by S. Paul). According to Y. Muffs, the pattern of the covenant in the Priestly Document (p) is modeled on adoption by redemption from slavery (cf. Ex. 6:6–8). In later times adoption was used metaphorically in the Pauline epistles to refer variously to Israel's election (Rom. 9:4), to the believers who were redeemed from spiritual bondage by Jesus (Rom. 8:15; Eph. 1:5; Gal. 4:5), and to the final eschatological redemption from bondage (Rom. 8:21–23). Whether Paul modeled the metaphor on biblical or post-biblical, ancient Near Eastern, or Roman legal sources is debated.
[Jeffrey Howard Tigay]
Later Jewish Law
Adoption is not known as a legal institution in Jewish law. According to halakhah the personal status of parent and child is based on the natural family relationship only and there is no recognized way of creating this status artificially by a legal act or fiction. However, Jewish law does provide for consequences essentially similar to those caused by adoption to be created by legal means. These consequences are the right and obligation of a person to assume responsibility for (a) a child's physical and mental welfare and (b) his financial position, including matters of inheritance and maintenance. The legal means of achieving this result are (1) by the appointment of the adopter as a "guardian" (see *Apotropos) of the child, with exclusive authority to care for the latter's personal welfare, including his upbringing, education, and determination of his place of abode; and (2) by entrusting the administration of the child's property to the adopter. The latter undertaking to be accountable to the child and, at his own expense and without any right of recourse, would assume all such financial obligations as are imposed by law on natural parents vis-à-vis their children. Thus, the child is for all practical purposes placed in the same position toward his adoptors as he would otherwise be toward his natural parents, since all matters of education, maintenance, upbringing, and financial administration are taken care of (Ket. 101b; Maim., Yad, Ishut, 23:17–18; and Sh. Ar., eh 114 and Tur ibid., Sh. Ar., Ḥm 60:2–5; 207:20–21; pdr, 3 (n.d.), 109–125). On the death of the adopter, his heirs would be obliged to continue to maintain the "adopted" child out of the former's estate, the said undertaking having created a legal debt to be satisfied as any other debt (Sh. Ar., Ḥm 60:4).
Indeed, in principle neither the rights of the child toward his natural parents, nor their obligations toward him are in any way affected by the method of "adoption" described above; but in fact, the result approximated very closely to what is generally understood as adoption in the full sense of the word. The primary question in matters of adoption is the extent to which the natural parents are to be deprived of, and the adoptive parents vested with, the rights and obligations to look after the child's welfare. This is in accordance with the rule that determined that in all matters concerning a child, his welfare and interests are the overriding considerations always to be regarded as decisive (Responsa Rashba, attributed to Naḥmanides, 38; Responsa Radbaz, 1:123; Responsa Samuel di Modena, eh 123; Sh. Ar., eh 82, Pitḥei Teshuvah 7).
Even without private adoption, the court, as the "father of all orphans," has the power to order the removal of a child from his parents' custody, if this is considered necessary for his welfare (see *Apotropos). So far as his pecuniary rights are concerned, the child, by virtue of his adopters' legal undertakings toward him, acquires an additional debtor, since his natural parents are not released from their own obligations imposed on them by law, i.e., until the age of six. Furthermore, the natural parents continue to be liable for the basic needs of their child from the age of six, to the extent that such needs are not or cannot be satisfied by the adopter; the continuation of this liability is based on Dinei Ẓedakah – the duty to give charity (see *Parent & Child; pdr, 3 (n.d.), 170–6; 4 (n.d.), 3–8).
With regard to right of inheritance, which according to halakhah is recognized as existing between a child and his natural parents only, the matter can be dealt with by means of testamentary disposition, whereby the adopter makes provision in his will for such portion of his estate to devolve on the child as the latter would have gotten by law had the former been his natural parent (see Civil Case 85/49, in: Pesakim shel Beit ha-Mishpat ha-Elyon u-Vattei ha-Mishpat ha-Meḥoziyyim be-Yisrael, 1 (1948/49), 343–8). In accordance with the rule that "Scripture looks upon one who brings up an orphan as if he had begotten him" (Sanh. 19b; Meg. 13a), there is no halakhic objection to the adopter calling the "adopted" child his son and the latter calling the former his father (Sanh. ibid., based on ii Sam. 21:8). Hence, provisions in documents in which these appellations are used by either party, where the adopter has no natural children and/or the child has no natural parent, may be taken as intended by the one to favor the other, according to the general tenor of the document (Sh. Ar., eh 19, Pitḥei Teshuvah, 3; Ḥm 42:15; Responsa Ḥatam Sofer, eh 76). Since the legal acts mentioned above bring about no actual change in personal status, they do not affect the laws of marriage and divorce, so far as they might concern any of the parties involved.
In the State of Israel, until 1981, adoption was governed by the Adoption of Children Law, 5720/1960, which empowered the district court and, with the consent of all the parties concerned, the rabbinical court, to grant an adoption order in respect of any person under the age of 18 years, provided that the prospective adopter was at least 18 years older than the prospective adoptee and the court were satisfied that the matter was in the best interests of the adoptee. Such an order had the effect of severing all family ties between the child and his natural parents. On the other hand, such a court order created new family ties between the adopter and the child to the same extent as are legally recognized as existing between natural parents and their child – unless the order was restricted or conditional in some respect. Thus, an adoption order would generally confer rights of intestate succession on the adoptee, who would henceforth also bear his adopter's name. However, the order did not affect the consequences of the blood relationship between the adoptee and his natural parents, so that the prohibitions and permissions of marriage and divorce continued to apply. On the other hand, adoption as such does not create such new prohibitions or permissions between the adopted and the adoptive family. There was no legal adoption of persons over the age of 18 years.
[Ben-Zion (Benno) Schereschewsky]
In 1981 the Knesset repealed the Adoption of Children Law, 5720/1960 and enacted in its stead the Adoption of Children Law, 5741/1981 (hereinafter – the Law), empowering the Family Court to issue adoption orders. The Law and its subsequent amendments provide for two substantively different modes of adoption. The first is local adoption, in which the Child Welfare Authority – a branch of the Welfare Ministry – functions as an adoption agency: it determines the adoptive parents' eligibility and even initiates adoption proceedings of the minor in the court, by way of special welfare officers for adoption. Proceedings to declare a minor adoptable can only be initiated by these welfare officers. The Child Welfare Authority is similarly responsible for the removal of a child from the custody of his natural parents against their wishes, for purposes of adoption. Occasionally, and under special circumstances, even prior to the child being declared adoptable the Authority may hand over the child "to a person who has agreed to receive him into his house with a view to adopting him" (§12 (c) of the Law). The second mode is that of "intercountry" (i.e., international) adoption, in which the adoption is undertaken by non-profit organizations under the supervision of a "central authority," i.e., the Child Welfare Authority.
The difference between the two kinds of adoption is as follows: local adoption also involves numerous cases in which the biological parents do not consent to hand their child over for adoption, in which case, quite naturally, the identity of the adoptive parents is withheld (closed adoption) to protect the adopted child from potential harm at the hands of his natural parents. In international adoption, the adoption is the product of negotiations between the prospective adoptive parents and the natural family. Under the Law, the rabbinical court is also permitted to issue adoption orders with the consent of all the parties, i.e., the parents (or adoptive parents, respectively) and the minor (when the case concerns a minor above the age of nine) or with the consent of the attorney general (in cases of a minor below nine). Even in those cases in which the rabbinical court has jurisdiction pursuant to the parties' consent, it is nevertheless obliged to comply with all the provisions of the law (§27).
The arrangements for international adoption were transformed when the law was amended in 1996, in accordance with the format of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which Israel ratified in 1993. Together with the incorporation of the Convention's provisions in the Law, the legislature also addressed a particular problem, unique to the State of Israel by virtue of its Jewish character. Under section 5 of the Law: "The adopter shall be of the same religion as the adoptee." How then can a Jewish family receive an adoption order for a non-Jewish child, brought to Israel from abroad? The legislature resolved this problem by amending section 13a of the Capacity and Guardianship Law, 5722/1962, which now provides that the court may give an instruction for the minor's religious conversion "to the religion of the person who provided for the minor with the intention of adopting him, during the six months that preceded the filing of the application for conversion."
In addition to the court's authorization, the minor who is a candidate for adoption must undergo a conversion process; according to the halakhah, a minor who is to be converted must be ritually immersed for conversion through the authority of the bet din. This is so, "because it [the conversion] is a benefit to him" (Ketubot 11a). The Israeli rabbinical courts have avoided converting minors who are candidates for adoption when the prospective adoptive parents will not provide him/her with an education based upon religious observance.
The case law of the Israel Supreme Court on adoption (given by Deputy President Menachem *Elon) emphasized the extensive impact of Jewish law on actual adoption procedures. The Law provides that "the adoption shall not affect any legal prohibition or permission as to marriage or divorce" (§16(c)); accordingly, the Adoption Register may be inspected by a marriage registrar in the course of carrying out his official function (§30 (2)). In doing so he raises the legal "veil" separating the adopted child from his natural family in order to establish the "legitimacy of his pedigree"; in other words, to prevent marriages between a brother and sister, etc. Furthermore, an adoption performed "for the benefit of the adoptee" does not represent the optimal solution, and preference should be given to the other arrangements, which do not sever the child from his natural family, despite their defective parental capacity. "Adoption is not intended as a punishment for the natural parents… we punish by confiscating property; we punish by denying freedom, but we do not punish by taking children away" (c.a. 3063/90 p.d. 45 (5) 837, 848), save for cases in which there is unequivocal, objective proof that the parents are incapable of raising their children.
As a rule, there is no discussion of the "child's best interests" until after examination as to whether there is any statutory ground for "removing the child from the natural guardianship of his parents and placing him in the home of the adopters" (h.c. 243/88 Konsols v. Turgeman, 45 (5) p.d. 837, 848). For the same reason, all possible efforts should be made to avoid ordering that the adoption of the minor be a "closed" adoption, which separates the minor from his natural identity. Indeed, in its capacity as the "father of minors," the court is commanded to "ensure the welfare and the future of the minor" and order that he be severed from his natural family – but this, only done when the court is convinced that leaving the minor with his family, or placing him with a foster family or in an "open adoption" will cause him terrible suffering due to his parents' incompetence (Elon, in the following judgments: c.a. 310/82, 37 (4) p.d. 421; c.a. 3763/92, 47 (1) p.d. 869). Similarly, the court will order the Child Welfare Service to seriously consider a request from the natural family that their child be given to "a family belonging to their own religious community, that maintains a religious lifestyle" (c.a. 3063/90 45 (3) 837) and, in exceptional circumstances, consider assenting to the parents' request that their child be adopted by their relatives who have no children of their own. This is in accordance with the prevalent custom in a number of Jewish communities whereby "when a couple belonging to the extended family is childless, another couple in the family, blessed with children, gives one of them to the couple that was denied their own offspring, and the latter can adopt and raise the child, as if he was their own child" (c.a. 568/80 35 (3) 701, 702).
Where the question arose of severing an adoptee minor from the religion of his natural parents, Justice Elon raised another consideration for withholding authorization of an adoption performed against the natural parents' wishes, or with their coerced consent: "We remember the battles fought by Jewish families and institutions in order to restore Jewish children to their families and religion. Prior to being sent to the death camps and gas chambers these families placed their children with Christians to care for them and raise them. It is befitting that we emulate their conduct in similar situations, when the tables are turned and the context is no longer the death camps but rather gangs of avaricious criminals" (the case of the "Brazilian girl" who was abducted from her natural mother; h.c. 243/88, 45 (2) p.d. 652).
In describing the character of the institution of adoption, its interpretation and implementation by the Israeli judiciary, Justice Elon further stated:
I wholeheartedly agree that we must not hinder the development of the institution of adoption, having regard primarily for its crucial importance in locating a warm and secure home and a loving, devoted family for children who have suffered at the hands of fate. In pursuing this important goal we must also ensure the totality of the adoptive parents' rights and obligations in their relations with the adopted child. However, we must not ignore our principal and basic obligation, which is to maintain, promote and preserve the earliest and most fundamental social unit in human history: the natural family, its descendants, offshoots and progeny, the unit which always has, does, and always will continue to guarantee the survival of human society. This is certainly the case when dealing with the history of the Jewish family, in which the family unit, in both the immediate and extended sense, was the central pillar that guaranteed Jewish survival and continuity. This principle applies a fortiori in our times, in which the institution of the natural family has encountered tumultuous upheavals and frequent crises, which have weakened its capacity to function. (c.a. 488/77, 32 (3) p.d. 421 434)
And, in another decision:
Tearing a child away from his biological parents is more difficult than splitting the Red Sea. The same applies to all decisions concerning a minor's adoption; all the more so in a case such as the one confronting us, in which the children are no longer infants and know their parents and their siblings. But as a court that is the "father of all minors," it is our responsibility to ensure their welfare and their best interests. It is incumbent upon us to find them a home in which they will merit love and warmth, physical well-being and spiritual tranquility, and all of the basic, elementary needs that they are not receiving in the home of their biological parents. (c.a. 658/88, 43 (4) p.d. 468, p. 477)
[Yisrael Gilat (2nd ed.)]
bible commentaries: J. Skinner, The Book of Genesis (icc, 19302); E. Speiser, Genesis (1964); N.M. Sarna, Understanding Genesis (1966); W. Rudolph, Ruth (1962); M.J. Dahood, Psalms, vol. 1 (1966). general: T.H. Gaster, Myth… in the Old Testament (1969), 448–9, 741–2; de Vaux, Anc Isr, 51–54, 111–3 (bibl. 523); S. Feigin, in: jbl, 50 (1931), 186–200; idem, Mi-Sitrei he-Avar (1943), 15–24, 50–53; H. Granqvist, Birth and Childhood Among the Arabs (1947), 60, 114, 252–9; M. David, Adoptie in het Oude Israel (Dutch, 1955); Z. Falk, Hebrew Law in Biblical Times (1964), 162–4; F. Lyall, in jbl, 88 (1969), 458–66; H. Donner, in: Oriens Antiquus, 8 (1969), 87–119; H.E. Baker, Legal System of Israel (1968), index. special studies: B. Stade, in: zaw, 6 (1886), 143–56; G. Cooke, ibid., 73 (1961), 202–25; C. Gordon, in: ba, 3 (1940), 2–7; H.H. Rowley, The Servant of the Lord… (1952), 163–86 (= htr, 40 (1947), 77–99); I. Mendelsohn, in: iej, 9 (1959), 180–3; R. Patai, Sex and Family in the Bible and the Middle East (1959), 42, 78–79, 92–98, 205, 224; W.F. Albright, in: basor, 163 (1961), 47; H. Hoffner, in: jnes, 27 (1968), 198–203; J. Preuss, Biblisch-Talmudische Medizin (1923), 460–1; S. Kardimon, in: jss, 3 (1958), 123–6; J. van Seters, in: jbl, 87 (1968), 401–8; Z. Falk, in: Iura, 17 (1966), 170–1. jewish law: J. Kister, Sekirah al Immuẓ Yeladim… (1953); G. Felder, Hakohen, in: Sinai, 48 (1961), 204 ff.; Findling, in: No'am, 4 (1961), 65 ff.; Ezraḥi, ibid., 94 ff.; Rudner, ibid., 61 ff.; B. Schereschewsky, Dinei Mishpaḥah (19672), 395 ff. add. bibliography: M. Elon, Jewish Law – History, Sources Principles (1994), 827, 1763–1765; idem, Jewish Law (Mishpat Ivri): Cases and Materials (Mathew Bender Case Books, 1999), 313–22; A. Abraham, "Imuẓ Yeladim," in: Hama'ayan (1994), 29; "Sample of Adoption Order given by the Rabbinical Court for a Minor, in accordance with the Halakhah," in: Shurat ha-Din (2000), 475; A.J. Goldman, Judaism Confronts Contemporary Issues (1978), 63–73; Y. Rosen, "Giyyur Ketinim ha-Me'umaẓim be-Mishpaḥah Ḥillonit," in Teḥumin, 20 (2000), 245; M. Steinberg, Responsum on Problems of Adoption in Jewish Law (1969); I. Warhaftig, Av u-Veno, Mehkarei Mishpat, 16 (2000), 479; R. Yaron, "Variations on Adoption," in: Journal of Juristic Papyrology, 15 (1965), 171–83.
Adoption is a process in which a person (the adoptee) acquires the rights and duties of a biological child with respect to an individual who is not the adoptee's biological parent. The process is usually legal in character, but in some cultures adoption occurs by social ritual. As part of the process of adoption, the adoptee's legal relationship with his or her biological parents may be terminated.
Common events triggering the possibility of adoption are the death of a biological parent; the termination of a biological parent's rights following the abuse, neglect or abandonment of the adoptee; or the divorce of the biological parents followed by the remarriage of the custodial parent and a loss of contact with the noncustodial biological parent.
Legal Consequences and Availability
Two standard models of adoption exist. In one model, found in Anglo-American jurisprudence and other legal systems, the effect of adoption is that the biological parent's rights and duties end with respect to the adoptee (Cretney and Masson 1997). These rights and duties are acquired by the adoptive parents (Hampton 2000). Thus, the biological parents cease to owe the adoptee a duty of support, and this duty is imposed on the adoptive parents. Similarly, normally the adoptee loses the right to inherit from a biological parent who dies leaving no will, but acquires such a right to inherit from the adoptive parent. In the second model, a complete severance of the legal relationship between the adoptee and his or her biological parent does not occur. Instead, as in Turkey (Örücü 1999), the adoptee acquires some rights and duties with respect to the adoptive parent, but retains others with respect to a biological parent.
In some countries, both models may co-exist. This occurs notably in Europe, as in Bosnia and Herzegovina (Bubic 1998) and Portugal (De Oliveira and Cid 1998), and in those countries whose legal traditions flow from Europe, as in Argentina (Grosman 1998), Colombia, and other countries in Central and South America (Monroy 1998). The model used in any given adoption may depend on the purpose behind the adoption or the circumstances of the adoptive and biological parents and the adoptee. For example, in Scotland (Sutherland 1997), when a biological parent remarries and the adoption is by the stepparent, the legal relationship with the other biological parent may not terminate completely even though a legal relationship with the adoptive parent is established. This approach is often followed in the United States (Hampton 2000). Thus, the adoptee may be entitled to support from both the biological parents and the adoptive parent. Similarly, the adoptee may be entitled to inherit from both the adoptive parent and perhaps his or her relatives, as well as from the biological parents and their relatives.
Islamic jurisprudence generally does not permit formal adoption. However, some Islamic countries such as Somalia and Tunisia permit adoption. Adoption is also possible in some circumstances among Muslims in South Asia (Pearl and Menski 1998).
In some countries, the applicable family law rules may be determined by factors such as the individual's citizenship, clan membership, or religion. Accordingly, in a given country, adoption rules may vary with the individuals involved, and indeed, may not be available to some individuals at all. Thus, in India, the availability of adoption is controlled by an individual's religion. Statute permits adoption among a broadly defined group of Hindus. The law, however, does not apply to those who are Muslim, Christian, Parsi, or Jew by religion (Pant 1994). Ordinarily, these individuals cannot formally adopt a child, although some of the objectives of adoption can be achieved using the laws of guardianship or the rules regulating the distribution of property by will (Manooja 1993).
History and Purpose
Adoption has been known from biblical times and in many cultures (Goody 1969). In Europe, the roots of modern law lie with the Greeks and Romans. Similarly, in the East, adoption has a long tradition. In Hindu literature, discussions of adoption go back more than 5,500 years (Pant 1994). Common themes dominate the purposes behind adoption in ancient times. Some of these themes are still relevant today.
To the early Greeks and Romans, the goal of adoption was to perpetuate the family based on the male line of descent and to ensure the continuation of the family's religious practices. Thus, the adopter originally had to be a male without a legitimate son (Harrison 1968; Hornblower and Spanforth 1996). Adoption also served the purpose of cementing political alliances between families and continuing political dynasties (Gager 1996). Later Roman emperors, however, did permit adoption by women to "console them for the loss of children" (Moyle 1912). Similarly, early Chinese tradition was primarily concerned with the goals of family continuity and preserving the cult of the ancestors. The object of adoption was to produce a legal successor, and the process was governed by strict rules. For example, the adoptee had to be from the same clan as the adopter, or at least have the same surname and be younger than the adopter so as to maintain order in the family genealogy (Bodde and Morris 1967). However, Chinese tradition also permitted the adoption of a charity son who was supported by the family but acquired no rights in it and did not participate in family religious rituals.
With time, the Roman concept of adoption migrated through Europe where it encountered local customs and codes, such as those found among the Germanic peoples. The use of formal adoption floundered in Europe, and notably in France, during the seventeenth century, chiefly as a result of the disapproval of the church (Gager 1996). Adoption survived, however, due to existing practices of custom, coupled with the needs of the elderly who, after depopulation following the plague epidemic, were willing to trade inheritances for security in old age—as the elderly still do in Turkey (Örücü 1999). One form of adoption practice employed during the seventeenth century involved the use of notarized contracts of adoption. This form is still found in some countries. Postrevolutionary France saw adoption as a means to break down class barriers and redistribute wealth, as well as being a remedy for childless households and children without families. Even so, the Napoleonic Code imposed strict limitations aimed at protecting legitimate biological heirs and the institution of marriage. As a result, ordinarily, only married couples could adopt (Gager 1996).
In contrast, Roman adoption practices never took hold in England. Statute law first introduced adoption to England in 1926 (Cretney and Masson 1997). English concerns with the integrity of blood lines and the desire to ensure that property was inherited by legitimate biological descendants meant that there was no adoption law to be received in postrevolutionary America. In the United States, adoption laws developed in response to the needs of dependent children, not infrequently poor, orphaned, or handicapped. Statutory schemes regulating adoption were first enacted by the states after the middle of the nineteenth century, the earliest probably being in Massachusetts in 1851.
The English and their European neighbors took their adoption practices to their colonies. For example, French and Spanish principles found their way to Central and South America (Monroy 1998). Imperial rules often encountered customary practices. Accordingly, current adoption law sometimes reflects a blend of the European roots and local tradition, as in New Zealand (Atkin 1997), Uganda (Okumu Wengi 1997), and Zambia (Munalula 1999).
In relatively recent times there has been a significant worldwide shift to recognizing the role adoption should play in advancing the interest of the individual adoptee, rather than the goals of broader elements of society or the interests of would-be adopters. This process has been enhanced by the evolution of global standards as reflected, for example, in the United Nations Convention on Rights of the Child. In some countries, for example, Argentina (Grosman 1998) and Uganda (Okumu Wengi 1997), this Convention is an integral part of the country's adoption law. In others, as in Scotland (Sutherland 1997), the Convention is highly influential.
There are three basic types of adoption processes: direct placement by the biological parent or parents, placement through a state agency, or placement through a private agency licensed by the state. Direct placement is often found where the adopter is a stepparent or close relative, as in Germany (Deliyannis 1997). Where direct placement by a biological parent is permitted, there is increasing concern to ensure that the adoptive parents are subjected to a screening process if they are not related to the adoptee (Boskey and Hollinger 2000). Any such screening is usually conducted by a state agency or an entity or individual approved by the state. However, screening does not occur in all countries (Manooja 1993).
Countries such as Argentina (Grosman 1998), China (Palmer 2000), and Latvia (Vebers 1999), or sometimes adoption agencies themselves, often impose extensive conditions on the eligibility of people to adopt and the children who may be placed with particular adoptive parents. As far as adoptive parents are concerned, conditions may include requirements relating to their ages and the age difference between them and the adoptee, their physical and mental health, their financial resources, and their community reputation. Adoption by unmarried couples, couples of the same sex, single individuals, and couples whose infertility is not established, may also be precluded (Forder 2000; Cretney and Masson 1997; Kounougeri-Manoledaki 1995). Traditionally, attention was paid to matching the physical characteristics of adoptive parents and the adoptee, as well as their socioeconomic backgrounds, religion, and race. Eligibility for adoption also might be affected by clan, tribal, or caste membership (Okumu Wengi 1997). Sometimes, as in Colombia (Monroy 1998), the concern is that neglecting race or tribal membership, for example, will adversely affect the adoptee and lead to the erosion of the relevant group and its culture. For these reasons, in the United States, the federal Indian Child Welfare Act of 1978 places control of the adoption of children eligible for tribal membership in the hands of the tribe and the tribal courts (Hollinger 2000a). In contrast, although a child's race may be taken into account for placement purposes, federal law does not permit the adoption placement to be delayed unduly while a same-race placement is sought.
In some countries, adoption can occur in a relatively informal way by mere agreement between the adoptive parents and the biological parents. This agreement may be reflected in some symbolic way in the form of a more or less public ceremony or ritual, as in India (Manooja 1993; Pant 1994), or by written contract, or by registration, as in China (Zhang 1997) and Rwanda (Ntampaka 1997). In other countries, adoption requires a decree by a court, as in Argentina (Grosman 1998), the United States (Hollinger 2000b), and Russia (Khazova 2000), or a decision by an administrative agency, as in Hungary (Dóczi 1997).
In many countries, the adoption process involves three phases: termination of parental rights; placement of the adoptee with an adoptive family; and finalization of the adoption. Sometimes, as in England (Cretney and Masson 1997), the state obtains the termination of the rights of a biological parent over the opposition of that parent. This may be due to the parent's abuse, neglect, or abandonment of the child, or due to a failure to support the child, or because the parent is mentally or physically ill, or imprisoned, or otherwise unfit. Where the biological parent favors the adoption, parental rights usually are relinquished either by surrender of the adoptee to an agency, or by the formal consent of the parent to the adoption. To help ensure that the biological parent is willing to surrender the child for adoption, many countries, as in Poland (Stojanowska 1997), specify that consent to the adoption cannot be given before the birth of the child. Also, formal procedures are employed to reduce the risk that the biological parent will be pressured into giving consent (Melli 1996). In this regard, generally, a biological parent cannot be paid for consenting to adoption. However, adoptive parents routinely pay for expenses associated with birth, as well as paying agencies and other intermediaries for their services (Melli 1996; Somit 2000). Despite these rules, there is concern that economic circumstances in some countries drive parents to give up their children, sometimes for compensation. Many countries require that children above a certain age must consent to their adoption, or, at least, be consulted regarding it.
Some countries, for example Argentina (Grosman 1998), Japan (Oda 1999), and the United States (Melli 1996), often impose a delay between the time when the adoptee is placed with the adoptive parents and the point where the adoption becomes final. This delay, as in Switzerland (Graham-Siegenthaler 1995), is to enable an investigator to conduct a home study and report to the relevant court or administrative agency on the success of the placement before the court or agency grants the final order of adoption.
Procedurally, difficulties can arise with respect to the biological father of the adoptee. His identity or location may be unknown, or may be known to the adoptee's mother, who conceals the information from the adoption authorities. Moreover, the father may be unaware of the mother's pregnancy, or he may know of the birth but have played no active role in either supporting the child or developing a social relationship with it. In such contexts, countries are reluctant to put the father in a position to block the adoption or delay it. To address these concerns, modern law tends to require that a biological father who has acknowledged his paternity or had it determined (Frank 1997) or who has been socially or financially active in the adoptee's life must give his consent to the adoption, or, if grounds exist, have his rights terminated on an involuntary basis (Cretney and Masson 1997). Where the father's identity is unknown or where he played a passive role in the adoptee's life, his consent to adoption is not required. At best, as in the Republic of Ireland (Ward 2000), an effort will be made to find the father and notify him of the proposed adoption and receive his input without giving him the ability to control the process.
In some cultures, adoption is a public event. Both the fact of adoption and the identity of the birth parents are known. In other traditions, the fact of adoption and related issues are kept secret. This might be because adoption is a means of dealing with children born out of wedlock or because secrecy and anonymity are seen as devices producing greater integration of the adoptee into the adoptive family, while shielding the biological parents. This approach requires adoption records to be sealed and placements to occur through intermediaries. Increasingly, health concerns and other considerations have led to requirements, as for example in the United States (Melli 1996), that nonidentifying background information be made available to adoptive parents. Beyond this, some countries, such as Argentina (Grosman 1998), are willing to allow access to background information, even if the effect is to reveal the fact of the adoption and the identities of the biological and adoptive families. In England, an adoptee, upon adulthood, may obtain a copy of the original birth certificate (Cretney and Masson 1997). In some countries, this access is possible only if good cause can be shown for disclosing the information. In other instances, a register is maintained of biological and adoptive parents who are willing to have their identities revealed if an inquiry is made. Even in countries where secret adoptions were the norm, there is increasing interest, as in New Zealand (Atkin 1997), in open adoptions, that is adoptions where contact is maintained between the biological parents and the adoptive family. These contacts may range from limited written communication to formal arrangements for physical contact. Such arrangements may even extend to more remote family members such as biological grandparents. The maintenance of contacts is seen as a way of helping biological parents deal with a sense of grief while facilitating the adoption process. However, concerns exist that open adoptions risk disrupting the adoptive family (Cretney and Masson 1997). Open adoptions are particularly favored in the context of adoptions by stepparents or adoptions of older children, that is, in circumstances where the adoptee already has an established relationship with the biological parents.
Concern with an increasing incidence of children from one country being adopted in another led, in 1993, to the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Pfund 1993). The increase in international adoptions in recent times is due to a decline in the birth rate in certain countries, coupled with relatively high fertility rates in other countries, possibly accompanied by social disruption because of war, disease, famine, and poverty. The Convention attempts to address a number of concerns. First, it seeks to ensure that the children are legitimately available for adoption. Second, the Convention requires reasonable efforts to find a permanent placement in the child's country of origin. Finally, the Convention aims to ensure that the placement in the receiving country is one that will benefit the child, and, in particular, that the adoptive parents are suitable (Bartholet 2000; Rosettenstein 1995). Many countries have ratified the Convention and modified their laws to meet its requirements.
atkin, b. (1997). "dealing with family violence: familylaw in new zealand." in the international survey of family law 1995, ed. a. bainham. the hague, netherlands: kluwer law international.
bartholet, e. (2000). "international adoption: overview."in adoption law and practice, ed. j. heifetz hollinger. new york: lexis publishing.
bodde, d., and morris, c. (1967). law in imperial china.philadelphia: university of pennsylvania press.
boskey, j. b., and hollinger, j. (2000). "placing children for adoption." in adoption law and practice, ed. j. heifetz hollinger. new york: lexis publishing.
bubic, s. (1998). "family law in bosnia and herzogovinia." in the international survey of family law 1996, ed. a. bainham. the hague, netherlands: kluwer law international.
cretney, s. m., and masson, j. m. (1997). principles offamily law, 6th edition. london: sweet and maxwell.
deliyannis, i. (1997). "reforming the law of adoption."in the international survey of family law 1995, ed. a. bainham. the hague, netherlands: kluwer law international.
de oliviera, g., and cid, n. de s. (1998). "family law inportugal." in the international survey of family law 1996, ed. a. bainham. the hague, netherlands: kluwer law international.
dóczi, m. (1997). "family law in hungary." in the international survey of family law 1995, ed. a. bainham. the hague, netherlands: kluwer law international.
forder, c. (2000). "opening up marriage to same sexpartners and providing for adoption by same sex couples, managing information on sperm donors, and lots of private international law." in the international survey of family law 2000 edition, ed. a. bainham. bristol, uk: jordan.
frank, r. (1997). "the need for reform in parentagelaw." in the international survey of family law 1995, ed. a. bainham. the hague, netherlands: kluwer law international.
gager, k. e. (1996). blood ties and fictive ties. princeton,nj: princeton university press.
goody, j. (1969). "adoption in cross-cultural perspective." comparative studies in society and history 11:55–78.
graham-siegenthaler, b. (1995). "family law in switzerland." in family law in europe, ed. c. hamilton and k. standley. london: butterworths.
grosman, c. p. (1998). "the recent reform of argentineadoption law." in the international survey of family law 1996, ed. a. bainham. the hague, netherlands: kluwer law international.
harrison, a. r. w. (1968). the law of athens. oxford, uk:clarendon press.
hampton, l. p. (2000). "the aftermath of adoption: support, inheritance and taxes." in adoption law and practice, ed. j. heifetz hollinger. new york: lexis publishing.
hollinger, j. h. (2000a). "adoption of native americanchildren." in adoption law and practice, ed. j. heifetz hollinger. new york: lexis publishing.
hollinger, j. h. (2000b). "adoption procedure." in adoption law and practice, ed. j. heifetz hollinger. new york: lexis publishing.
hornblower, s., and spanforth, a. (1996). the oxford classical dictionary. new york: oxford university press.
khazova, o. (2000). "three years after the adoption of the new russian family code." in the international survey of family law 2000 edition, ed. a. bainham. bristol, uk: jordan.
kounougeri-manoledaki, e. (1995). "family law ingreece." in family law in europe, ed. c. hamilton and k. standley. london: butterworths.
manooja, d. c. (1993). adoption law and practice. newdelhi, india: deep and deep publications.
melli, m. s. (1996). "focus on adoption." in the international survey of family law 1994, ed. a. bainham. the hague, netherlands: kluwer law international.
moyle, j. b. (1912). imperatoris iustiniani istitutionum.oxford, uk: clarendon press.
monroy, p. a. (1998). "adoption law in colombia." in the international survey of family law 1996, ed. a. bainham. the hague, netherlands: kluwer law international.
munalula, m. (1999). "family law in zambia." in the international survey of family law 1997, ed. a. bainham. the hague, netherlands: kluwer law international.
ntampaka, c. (1997). "family law in rwanda." in theinternational survey of family law 1995, ed. a. bainham. the hague, netherlands: kluwer law international.
oda, h. (1999). japanese law, 2nd edition. oxford, uk:oxford university press.
okumu wengi, j. (1997). weeding the millet field:women's law and grassroots justice in uganda. kampala: uganda law watch center.
Örücü, e. (1999). "improving the lot of women and children." in the international survey of family law 1997, ed. a. bainham. the hague, netherlands: kluwer law international.
palmer, m. (2000). "caring for young and old: developments in the family law of the people's republic of china, 1996–1998." in the international survey of family law 2000 edition, ed. a. bainham. bristol, uk: jordan.
pant, p. c. (1994). the hindu adoptions and maintenance act, 1956, 4th edition. allahabad, india: the law book company.
pearl, d., and menski, w. (1998). muslim family law, 3rd edition. london: sweet and maxwell.
pfund, p. h. (1993). "introductory note." internationallegal materials 32:1134–1146.
rosettenstein, d. s. (1995). "trans-racial adoption in theunited states and the impact of considerations relating to minority population groups on international adoptions in the united states." international journal of law and the family 9:131–154.
somit, j. (2000). "independent adoptions in california;dual representation allowed." in adoption law and practice, ed. j. heifetz hollinger. new york: lexis publishing.
stojanowska, w. (1997). "adoption: revision of the family and custody code." in the international survey of family law 1995, ed. a. bainham. the hague, netherlands: kluwer law international.
sutherland, e. e. (1997). "child law reform—at last!" inthe international survey of family law 1995, ed. a. bainham. the hague, netherlands: kluwer law international.
vebers, j. (1999). "family law in latvia: from establishment of the independent state of latvia in 1918 to restoration of independence in 1993." in the international survey of family law 1997, ed. a. bainham. the hague, netherlands: kluwer law international.
ward, p. (2000). "judicial and legislative family law developments." in the international survey of family law 2000 edition, ed. a. bainham. bristol, uk: jordan.
zhang, x. (1997). "family law." in introduction to chinese law, ed. c. wang and x. zhang. hong kong-singapore: sweet and maxwell.
DAVID S. ROSETTENSTEIN
A practice in which an adult assumes the role of parent for a child who is not his or her biological offspring.
An adult assumes the role of parent for a child other than his or her own biological offspring in the process of adoption. Informal adoptions occur when a relative or stepparent assumes permanent parental responsibilities without court involvement. However, legally recognized adoptions require a court or other government agency to award permanent custody of a child (or, occasionally, an older individual) to adoptive parents. Specific requirements for adoption vary among states and countries. Adoptions can be privately arranged through individuals or agencies, or arranged through a public agency such as a state's child protective services. Adoptees may be infants or older children; they may be adopted singly or as sibling groups; and they may come from the local area or from other countries. Adoptive parents may be traditional married couples, but they may also be single men or women or non-traditional couples. Parents may be childless or have other children.
Adoption is a practice that dates to ancient times, although there have been fundamental changes in the process. Ancient Romans, for example, saw adoption as a way of ensuring male heirs to childless couples so that family lines and religious traditions could be maintained. In contrast, modern American adoption laws are written in support of the best interests of the child, not of the adopter.
Modern American adoption laws evolved during the latter half of the 19th century, prompted by changes due to the Industrial Revolution, large numbers of immigrant children who were often in need of care, and a growing concern for child welfare. Because of the poor health conditions in the tenements of large cities, many children were left on their own at early ages. These dependent children were sometimes placed in almshouses with the mentally ill, and sometimes in foundling homes plagued by high mortality rates. In the 1850s the Children's Aid Society of New York City began to move dependent children out of city institutions. Between 1854 and 1904 orphan trains carried an estimated 100,000 children to the farms of the Midwest where they were placed with families and generally expected to help with farm work in exchange for care.
Massachusetts became the first state to pass legislation mandating judicial supervision of adoptions in 1851, and by 1929 all states had passed some type of adoption legislation. During the early part of the 20th century it was standard practice to conduct adoptions in secret and with records sealed, in part to protect the parties involved from the social stigma of illegitimate birth . After WWI two factors combined to increase interest in the adoption of infants. The development of formula feeding allowed for the raising of infants without a ready supply of breast milk, and psychological theory and research about the relative importance of training and conditioning in child rearing eased the concerns of childless couples about potential "bad seeds." Because of the burgeoning interest in infant adoptions, many states legislated investigations of prospective adoptive parents and court approval prior to finalization of the adoption.
Until about mid-century the balance of infant supply and parent demand was roughly equal. However during the 1950s the demand for healthy white infants began to outweigh the supply. Agencies began to establish matching criteria in an attempt to provide the best fit between characteristics of the child or birth parents and the adoptive parents, matching on items such as appearance, ethnicity, education, and religious affiliation . By the 1970s it was not uncommon for parents to wait 3-5 years after their initial application to a private adoption agency before they had a healthy infant placed with them. These trends resulted from a decrease in the numbers of infants surrendered for adoption following the increased availability of birth control, the legalization of abortion , and the increasingly common decision of unmarried mothers to keep their infants.
In response to this dearth of healthy, same-race infants, prospective adoptive parents turned increasingly to international and transracial adoptions. Children from Japan and Europe began to be placed with American families by agencies after WWII, and since the 1950s Korea has been the major source of international adoptions (except in 1991 with the influx of Romanian children). The one child policy of the Chinese government has provided a new source of infants to American families, and recently many adoptees have come from Peru, Colombia, El Salvador, Mexico, the Philippines, and India.
The civil rights movement of the 1960s was accompanied by an increase in the number of transracial adoptions involving black children and white parents. These adoptions peaked in 1971, and one year later the National Association of Black Social Workers issued a statement opposing transracial adoption. They argued that white families were unable to foster the growth of psychological and cultural identity in black children. Transracial adoptions now account for a small percentage of all adoptions, and these most frequently involve Koreanborn children and white American families.
While healthy infants have been much in demand for adoption during the last 50 years, the number of other children waiting for adoptive homes has grown. In response, the U.S. Congress passed the federal Adoption Assistance Child Welfare Act (Public Law 96-272) in 1980, giving subsidies to families adopting children with special needs that typically make a child hard to place. Although individual states may define the specific parameters, these characteristics include older age, medical disabilities, minority group status, and certain physical, mental, or emotional needs.
Types of adoption
Adoption arrangements are typically thought of as either closed or open. Actually, they may involve many varying degrees of openness about identity and contact between the adoptive family and the birth family. At one extreme is the closed adoption in which an intermediary third party is the only one who knows the identity of both the birth and adoptive parents. The child may be told he or she is adopted, but will have no information about his or her biological heritage. When the stigma attached to births out of wedlock was greater, most adoptions were closed and records permanently sealed; however, a move to open records has been promoted by groups of both adoptees and by some birth mothers. Currently about half of the states allow access to sealed records with the mutual consent of adoptee and birth parent, and others have search processes through intermediary parties available. Why search? Some research and clinical observation suggests that, especially during adolescence , healthy identity formation depends on full awareness of one's origins (Where do I get my freckles? Why do I have this musical ability ? Why did they give me up?). Other important medical history may be critical to the adoptee's health care planning. For birth mothers, sometimes they simply want to know that their child turned out okay.
The move to open records lead to an increase in open adoptions in which information is shared from the beginning. Open adoptions may be completely open, as is the case when the birth parents (usually the mother) and adoptive parents meet beforehand and agree to maintain contact while the child is growing up. The child then has full knowledge of both sets of parents.
Other open adoptions may include less contact, or periodic letters sent to an intermediary agency, or continued contact with some family members but not others. It can be a complex issue. In the case of an older child who is removed from the family by protective services because of abuse or neglect, the child clearly knows his birth parents as well as any other siblings. If these siblings are also removed and placed in different adoptive homes, it may be decided that periodic visits between the the children—once every few months, perhaps—should be maintained, but that contact with the abusive parents should be terminated until the child reaches adulthood and may choose to search. Siblings may know each other's placements, but the birth parents may have no knowledge of the children's whereabouts. However, if a child is ultimately adopted by the foster family with whom he or she was initially placed prior to the termination of parental rights or visitation, then the birth parents might have knowledge of the child's placement and whereabouts even though continued contact may not be deemed in the best interests of the child.
Children removed from families for protective issues are sometimes reunited with their parents after a stay in temporary foster homes and after the parents have had the chance to rehabilitate and are able to care adequately for their children. On the other hand, it may be decided that reunification is not a feasible objective for a particular family and a permanent home is then sought. The foster family then plays a major role in the child's transition to his or her "forever family." The desire to provide children with permanent homes and the resulting sense of security and attachment as soon as possible gives rise to another type of adoption, the legal risk adoption.
Legal risk adoptions involve placement in the prospective adoptive home prior to the legal termination of parental rights and subsequent freeing of the child for adoption. In these cases, child protective services are generally involved and relatively certain that the courts will ultimately decide in favor of the adoptive placement. The legal process can be drawn out if birth parents contest the agency's petition for termination. Although there is the risk that the adoption may not be finalized and that the child will be returned to his or her birth parents, social service agencies generally do not recommend such placements unless, in their best judgments, the potential benefits to child and family far outweigh the legal risk.
Whether the child is free for adoption or a legal risk placement, there is generally a waiting period before the adoption is finalized or recognized by the courts. Although estimates vary, about 10% of adoptions disrupt, that is, the child is removed from the family before finalization. This figure has risen with the increase in older and special needs children being placed for adoption. The risk of disruption increases with the age of the child at placement, a history of multiple placements prior to the adoptive home, and acting-out behavior problems. Interestingly, many children who have experienced disruption go on to be successfully adopted, suggesting that disruption is often a bad fit between parental expectations, skills, or resources and the child's needs. Many agencies conduct parent support groups for adoptive families, and some states have instituted training programs to alert prospective adoptive parents to the challenges—as well as the rewards—of adopting special needs children, thereby attempting to minimize the risk of disruption.
Who gets adopted?
Estimating the total number of children adopted in the United States is difficult because private and independent adoptions are reported only voluntarily to census centers. According to the National Committee for Adoption, there were just over 100,000 domestic adoptions in the U.S. in 1986, roughly an even split between related and unrelated adoptions. Of unrelated domestic adoptees, about 40% were placed by public agencies, 30% by private agencies, and 30% by private individuals. Almost half of these adoptees were under the age of two, and about one-quarter had special needs. There were also just over 10,000 international adoptions, the majority of these children under the age of two and placed by private agencies.
The American Public Welfare Association has collected data through the Voluntary Cooperative Information System on children in welfare systems across the U.S. who are somewhere in the process of being adopted. Of children in the public welfare systems, about one-third had their adoptions finalized in 1988, one-third were living in their adoptive home waiting for finalization, and one-third were awaiting adoptive placements. Key statistics on these adoptions appear in the accompanying table.
Adoptions may be arranged privately through individuals, or a public or private agency may be involved. Although adopting parents may have certain expenses if the adoption is privately arranged, adoptions are assumed to be a gratuitous exchange by law. No parties may profit improperly from adoption arrangements and children are not to be brokered. The objectives of public and private agencies can differ somewhat. Private agencies generally have prospective adoptive parents as their clients and the agency works to find a child for them. Public agencies, on the other hand, have children as their clients and the procurement of parents as their primary mission.
Outcomes of adoption
There is general agreement that children who are adopted and raised in families do better than children raised in institutions or raised with birth parents who are neglectful or abusive. Compared to the general population, however, the conclusions are less robust and the interpretation of the statistics is not clear. Adopted adolescents, for example, receive mental health services more often than their non-adopted peers, but this may be because adoptive families are more likely to seek helping services or because once referring physicians or counselors know that a child is adopted they assume there are likely to be problems warranting professional attention.
When adjustment problems are manifested by adoptees, they tend to occur around school age or during adolescence. D. M. Brodzinsky and his colleagues have conducted a series of studies from which they conclude that adopted infants and toddlers generally do not differ from non-adopted youngsters, but greater risks for problems such as aggression or depression emerge as the 5-7-year-old child begins to understand the salience and implications of being adopted. Still, it should be noted that the absolute incidence of adjustment problems in adoptees is low even though it may be statistically higher than the corresponding figures for non-adoptees.
In the course of normal development, adolescence is seen as a time of identity formation and emerging independence. Adopted adolescents are faced with the challenge of integrating disparate sources of identity— their biological origins and their family of rearing—as they establish themselves as individuals. For some this is a difficult task and may result in rebellious or depressive behavior, risks for all adolescents. Many adoption experts feel that families who do not acknowledge the child's birth heritage from the beginning may increase the likelihood that their child will experience an especially difficult adolescence.
Problems associated with adoption may not always be the result of psychological adjustment to adoption status or a reflection of less than optimal family dynamics. Attention deficit/hyperactivity disorder (ADHD) was found to be more prevalent in adoptees than nonadoptees, both among children adopted as infants and children removed from the home at older ages. C. K. Deutsch suggests that ADHD in children adopted as infants may be genetically inherited from the birth parents and perhaps reflected in the impulsive behavior that resulted in the child's birth in the first place. In the case of children who have been removed from the home because of the trauma of abuse, the hypervigilance used to cope with a threatening environment may compromise the child's ability to achieve normal attention regulation
Many of the studies addressing the outcomes of adoption fail to consider important factors such as the pre-placement history of the child, the structure and dynamic of the adopting family, or the courses of individual children's development. Many studies are cross-sectional rather than longitudinal by design, meaning that different groups of children at different ages are studied rather than the same children being followed over a period of time. It is also difficult to establish what control or comparison groups should be used. Should adopted children be compared to other children in the types of families into which they have been adopted or should they be compared to children in the types of families from which they have been surrendered? These are complex issues because adoptees are a heterogeneous group, and it is as important to understand their individual differences as it is their commonalities.
Doreen Arcus, Ph.D.
Brodzinsky, D. M. "Long-Term Outcomes in Adoption." The Future of Children 3, 1993, pp. 153-66.
Caplan. L. An Open Adoption. Boston: Houghton-Mifflin, 1990.
Deutsch, D. K., J. M. Swanson, and J. H. Bruell. "Overrepresentation of Adoptees in Children with Attention Deficit Disorder." Behavior Genetics 12, 1982, pp. 231-37.
Lancaster, K. Keys to Adopting a Child. Hauppauge, NY: Barron's Educational Series, 1994.
Melina, L. R. Making Sense of Adoption. New York: Harper & Row, 1989.
National Committee for Adoption (NCFA). 1989 Adoption Factbook. Washington, DC: National Committee for Adoption, 1989.
Stolley, K. S. "Statistics on Adoption in the United States." The Future of Children 3, pp. 26-42.
Tatara, T. Characteristics of Children in Substitute and Adoptive Care: A Statistical Summary of the VCIS National Child Welfare Base. Washington, DC: American Public Welfare Association, 1992.
AASK (Adopt A Special Kid). 2201 Broadway, Suite 702, Oakland, CA 94612, (510) 451–1748.
Adopted Child. P.O. Box 9362, Moscow, ID 83842, (208) 882–1794, fax: (208) 883–8035.
Adoptive Families of America. 3333 North Highway 100, Minneapolis, MN 55422, (800) 372–3300.
American Adoption Congress. 1000 Connecticut Ave., N.W., Suite 9, Washington, DC 20036, (202) 483–3399 (Public information center.)
Child Welfare League of America. P.O. Box 7816, 300 Raritan Center Pkwy, Edison, NJ 08818-7816, (800) 407–6273.
National Adoption Center. 1500 Walnut Street, Philadelphia, PA 19102 (Provides information especially with regard to special needs adoption.)
National Adoption Information Clearinghouse. 11426 Rockville Pike, Rockville, MD 20852, (202) 842–1919 (Resource for information and referral. Maintains copies of all state and federal adoption laws, including Public Law 96-272, The Adoption Assistance and Child Welfare Act of 1980. )
National Council for Single Adoptive Parents. P.O. Box 15084, Chevy Chase, MD 20825, (202) 966–6367.
Adoption is the practice in which an adult assumes the role of parent for a child who is not the adult's biological offspring. The process usually involves some legal paperwork.
The ancient practice of adoption was a way of ensuring male heirs to childless couples in order to preserve family lines and religious traditions. In the 1850s the Children's Aid Society of New York City began to move dependent children out of city institutions. Between 1854 and 1904 orphan trains carried an estimated 100,000 children to families on farms in the Midwest; these children were to provide farm work in exchange for care.
Modern U.S. adoption laws are designed with the best interests of the child in mind, not the best interests of the adult who intends to adopt. Throughout most of the twentieth century, adoptions were conducted in secret, and records were often sealed to protect those involved from the social stigma of birth out of wedlock. After World War I, the advent of commercial formula facilitated raising babies without their being fed by breast. Adults were trained in parenting, and childless couples became interested in adopting. Because of the rapidly increasing interest in infant adoptions, many state laws demanded investigations of prospective adoptive parents and court approval before the adoption could be completed.
In the early 2000s, state laws on adoption vary. Adoptions can be conducted privately between individuals, between independent agencies and individuals, and between public agencies (such as a state's child protective services) and individuals. Adoptees may be infants or older children, they may be adopted singly or as sibling groups, and they may come from the local area or from other states or countries. Adoptive parents may be married couples, single men or women, or nontraditional couples. Adoptive parents may be childless or have other children.
In the 1990s, roughly 120,000 children were adopted annually in the United States. This number remained proportionate to the U.S. population throughout that decade and into the early 2000s. During this period, nearly 10,000 children were adopted from abroad.
Types of adoptions
PUBLIC ADOPTIONS In 2000 and 2001, about 127,000 children were adopted annually in the United states. Since 1987, the number of adoptions annually has remained relatively constant, ranging from 118,000 to 127,000. Adoptions through publicly funded child welfare agencies accounts for about 40 percent of all adoptions. More than 50,000 public agency adoptions in each year (2000 and 2001) accounted for 40 percent of adoptions, up from 18 percent in 1992 for 36 states that reported public agency adoptions in that year.
PRIVATE ADOPTIONS In a private adoption, children are placed in non-relative homes through a non-profit agency licensed by the state in which it operates. In an independent or non-agency adoption, children are placed in non-relative homes directly by the birthparents or through the services of a licensed or unlicensed facilitator, certified medical doctor, member of the clergy, or attorney.
About 40 percent of the 127,000 adoptions in 2000 and 2001 were primarily private agency, kinship, or tribal adoptions. There were 58,420 adoptions (46%) private adoptions reported in 2000–2001. With the available data, it is not possible to separate figures within this group for types of adoptions. However, in 1992, for example, stepparent adoptions (a form of kinship adoption) alone accounted for 42 percent of all adoptions.
Informal adoptions occur when a relative or stepparent assumes permanent parental responsibilities without court involvement. However, legally recognized adoptions need a court or other government agency to award permanent custody of a child to adoptive parents.
The U.S. Department of Health and Human Services, Administration for Children and Families Interim Estimates for 2000 as of August 2002 reports 30,939 foster parent adoptions and 10,612 relative adoptions through the foster parent system. (Relatives who were also foster parents were counted as relatives.)
The U.S. Census is the principal source of data on adopted children and their families on a national level. The report for 2000 presents information on 2.1 million adopted children and 4.4 million stepchildren of householders, as estimated from the census sample, which collected from approximately one out of every six households. Together, these children represented approximately 8 percent of the 84 million sons and daughters of householders. In 2000 there were more than twice as many stepchildren as adopted children in U.S. households, with stepchildren representing 5 percent of children in the household. While these data are non-specific, it is safe to say that a significant number of the stepchildren were neither kinship nor stepparent adoptions. Since almost all adoptions by related applicants are independent, it is likely that most independent adoptions were by relatives.
TRANSRACIAL In transracial adoptions, children are placed with an adoptive family of another race. These adoptions may be through public and private agencies or be independent, but most transracial adoptions take place through the public child welfare system. The civil rights movement of the 1960s led to an increase in transracial adoptions involving black children and white parents. This practice peaked in 1971, and one year later the National Association of Black Social Workers issued a statement opposing transracial adoption. The association argued that white families were unable to foster the growth of psychological and cultural identity in black children.
An estimated 15 percent of the 36,000 adoptions of foster children in 1998 were transracial or transcultural adoptions. Many Americans continue to be troubled by these adoptions. The National Association of Black Social Workers called them a form of cultural genocide. That point aside, there are in fact not enough African American adults willing to adopt to fill the need of African American children in need of adoption.
INTRANATIONAL AND INTERNATIONAL In response to a shortage of healthy, Caucasian infants, prospective adoptive white parents started adopting children from Japan and Europe. In 2003, approximately 21,616 children were adopted through international adoption. International adoptions accounted for more than 15 percent of all U.S. adoptions, an increase from 5 percent between 1992 and 2001. This practice showed a dramatic increase between the mid-1990s and the early 2000s.
Between 1999 and 2004, international adoptions grew in popularity in the United States as more families recognized the global humanitarian need to provide homes for waiting children. Besides this pressing need, international adoptions have proven to be safe and successful, so they provide an attractive option for people who have been trying without success to adopt within the United States.
Though U.S. citizens adopted children from 106 different countries in 2001, nearly three-fourth of all children came from only five countries: China (25%), Russia (22%), South Korea (10%), Guatemala (8%), and Ukraine (6%). The Chinese government's population control policy, which penalizes families who have more than one child, and the greater value placed on male heirs in Chinese culture have led many families to abandon female Chinese infants. These babies constituted a bountiful source of adoption candidates for American families. In 2003, U.S. interest in adopting from Kazakhstan also grew as many U.S. families reported a fast, smooth adoption experience there. Americans adopt children from Peru, Colombia, El Salvador, Mexico, and the Philippines. Some adoptions come from Vietnam. Adoption from India, however, is difficult for non-Indian parents. In 2002, Cambodia and Romania stopped international adoptions.
SINGLE PARENT According to the United States Department of Health and Human Services, 33 percent of adoptions from foster care are by single parents. Most of these single parents are women. Single women are more likely to adopt an older child than an infant. Single men adopted some children, and unmarried couples adopted some children in the same period. As one-parent households increase in number and become more acceptable, adoptions in these households also become more common. More than one half of African-American children, nearly one third of Hispanic children, and one fifth of Caucasian children live with a single parent because of divorce and unmarried mothers. This prevalence gives adoption agencies a more open-minded approach toward single parent adoptions. Also, the issue of personal finances and single income families has become less important since adoption subsidies are available nationwide.
Treatment of adoption information
Through most of the nineteenth century and into the twentieth century, adoptions were often informal and unofficial. Agencies, counselors, doctors, and private attorneys were generally not involved. If a young woman was pregnant out-of-wedlock, the baby's adoption might be arranged by the mother's parents with the help of the head of her extended family. Some family member or close friend took in the child. The child might refer to the adoptive parents as aunt and uncle, but people in the immediate social circle might know the child's biological parent.
In the early twentieth century, as governmental and independent agencies became involved with adoption, information about the individuals involved tended to be restricted. Decisions about who could adopt which baby were often made solely by agency personnel. In closed adoptions, mothers gave up parental rights immediately after birth. They did not see or hold their babies.
In the later twentieth century and in the early 2000s, information about adoptions is open to the participants. The birth mother may room in with the baby in the hospital. The birth mother and adoptive parents may have a contract before delivery and a formal or informal agreement about shared responsibility for the baby. The birth parent may have visitation rights after adoption takes place. This arrangement often occurs between a teenage birth parent and grandparents who become the legal parents through adoption. Open adoptions may also take place between surrogate and adopting parents.
Fraud by adoption agencies
Adoption fraud may involve the misrepresentation and fraudulent concealment of a child's pre-adoption history. Some state laws require full disclosure in good faith of information pertaining to the child's health. This information helps adopting parents anticipate any special needs the child may have. Full disclosure by the adoption agency facilitates the child's receiving appropriate intervention and treatment as needed.
Adoptions are expensive. Most of the financial expenses are attorney or court fees, and the cost of preparing the home for a new child. Expense results from parents' lost wages for time off to meet with social agencies or to have their homes inspected. Adoptions are emotionally taxing as well. The adoptive parents deal with uncertainty, and if there are other children in the household already, the parents deal with those children's responses and feelings as everyone involved prepares for the possibility of a new family member. Time must be spent with a social worker whose task it is to evaluate the home.
In some cases, the adoptive child is placed in the adoptive home before the legal termination of parental rights has freed the child for adoption. In these cases, child protective services are fairly certain the courts will decide in favor of the adoptive placement, but this tentative situation imposes a potentially uncomfortable arrangement on the adoptive family and their household.
Adoption is challenging for the adopting parents, for other children if they have them, and for the adopted child. Soon after the new child arrives, the adoptive parents should schedule a medical exam. Adopted children from other countries may be at greater risk for certain illnesses or conditions related to possible substandard care they received before their arrival in their new home. Medical evaluation may identify special needs the adoptive parents can then address.
Adopted children should be told early that they are adopted. Knowing from early childhood of the adoption is better for children than learning about it later. Three-year-old children can understand the story of their adoption.
Adolescents may have questions about identity that are connected to their not knowing their biological parents. It is common for them to spend time tracing records and trying to find their birth parents. This activity does not necessarily constitute a rejection of the adopting parents. Children seek out their birth parents because they need information about themselves in order to shape a sense of who they are and where they belong in the world.
Sometimes the adopted child will feel loss, abandonment , and resentment toward the birth parent and the adopting parents. For a period, the adoptive family may not be able to compensate the child who faces the loss of the birth family.
Parenting the adopted child
Adopting parents who intuitively understand the sense of loss and separation anxiety experienced by an adopted child and communicate with their child about the adoption can develop closeness. Even tiny infants have a bond with their mother before birth. A child knows his mother and instinctively wants to be with her. Even babies may experience loss of the natural mother and a sense of confusion regarding the stranger who assumes the role of mother. Parental separation from the child can also be traumatic. The adoptive parents need to be attuned to the child's emotional responses to loss.
In the absence of genetic markers (facial features, gestures, body language, basic personality, interests, and talents) both adoptive parents and the adopted child must learn how to communicate. The adopted child may have trouble fitting into the adoptive family when genetic traits are not mirrored or reflected.
There are many ways for adoptive parents to help an older child deal with sorrow, anger, anxiety , and low self-esteem caused by separation from the biological parents:
- Celebrate birthdays a week or so before the birthday, if the birthday is really the date of separation from the natural parent.
- Take extra time to prepare the child for changes in routine, a new school, and family life.
- Listen more and talk less to the adopted child.
- Respond to painful feelings with support, rather than by discounting them in any way.
- Respect and value the differences between the child and other members of the family.
- Encourage the child's talents and interests, even if they are different from the adoptive family.
Parenting an adopted child is parenting plus. But with intuition, information, understanding, and empathy, it can be a rewarding experience.
Abandonment —Legally, the refusal to provide adequate financial support for one's dependent child; the failure to maintain a parental relationship with one's dependent child.
Adoptee —A person who has been adopted.
Adoption subsidy —A short-term or long-term financial payment, either in the form of cash or services, to help an adoptive family provide for the on-going care of an adopted child. A subsidy can be medical insurance for the child, counseling services for the family, respite care for the adoptive parents; or a monthly cash allowance to help cover other extraordinary expenses and services associated with the adoption.
Birth parents —The biological parents of a child.
Custody —The care, control, and maintenance of a child, which in abuse and neglect cases can be awarded by the court to an agency or in divorce to parents. Foster parents do not have legal custody of the children who are in their care.
Disclosure —Release of information.
Relinquishment —Giving up parental rights to a child, so someone else can adopt the child.
Severance of parental rights —The end of parental rights; the involuntarily removal of parental rights of a parent that has abandoned a child; has without just cause failed to support a child; has neglected or abused a child or has stood by and allowed others to neglect or abuse a child; or who because of extended incarceration in prison, is unavailable to parent or nurture the child. Once the parental rights of both parents of a child are removed the child will become available for adoption by another family.
Trans-racial adoptions —Adoption in which a family of one race adopts a child of another race.
Adamec, Christine. The Complete Idiot's Guide to Adoption. East Rutherford, NJ: Penguin Group, 2005.
Rothman, Barbara Katz. Weaving a Family: Untangling Race and Adoption. Boston, MA: Beacon Press, 2005.
Volkman, Toby Alice. Cultures of Transnational Adoption. Durham, NC: Duke University Press, 2005.
Wolfe, Jaymie Stuart. The Call to Adoption: Making Your Child Your Own. Boston, MA: Pauline Books & Media, 2005.
Craft, Carrie. "Developmental Grieving." Available online at <adoption.about.com/cs/legalissues/a/Holiday_strugl_p.htm> (accessed December 12, 2004).
——"Teaching Foster/Adoptive Children How to Respond to Common Questions." Available online at <adoption.about.com/od/fostering/a/coverstories_p.htm> (accessed December 12, 2004).
Rapport, Bruce M. "Open Adoption History." Independent Adoption Center (IAC). Available online at <www.adoptionhistory.org/> (accessed December 12, 2004).
Schlossberg, Patty D. "Helping Your Older Child Adjust." Available online at <adoption.about.com/cs/olderchildren/a/adjust_p.htm> (accessed December 12, 2004).
U.S. Department of Health and Human Services, Administration for Children and Families. Available online at <www.acf.hhs.gov/programs/cb> (accessed December 16, 2004).
Aliene S. Linwood, R.N., DPA, FACHE
Adoption is the institutionalized practice through which an individual belonging by birth to one kinship group acquires new kinship ties that are socially defined as equivalent to the congenital ties. These new ties supersede the old ones either wholly or in part. Belonging by birth to a particular kinship group does not imply that all the ties are necessarily biological. For example, in many nonliterate societies biological paternity is of minimal social significance; both paternal status and responsibilities are assumed by other male adults, such as a maternal uncle in matrilineal societies. Such arrangements fall outside the scope of the above definition. However, the drawing of hard and fast lines between what does and does not constitute adoption is an extremely difficult task. Some formal arrangements that are legally defined as adoption establish kinship ties only in relation to the transmission of property. On the other hand, some informal arrangements involve a child intensively in a new family of orientation, while at the same time legally maintaining the separateness of his identity.
Although adoption practices vary widely around the world and through time, in one form or another they appear to approach cultural universality. A number of motives for adoption have been discussed by Lowie, who ascribed its commonness in primitive societies to a “generic love of children that is in no way dependent on a sense of consanguinity” (1930, p. 460). However, both the universality and the variability of adoption practices can be explained in terms of their social functions.
Promotion of child welfare. In contemporary Western societies the chief function served by adoption is to provide for the care and welfare of children within a permanent family group. The child-centeredness of Western adoption practices is reflected in statutory law. A comparative review of the adoption statutes of 15 Western nations (United Nations 1956) found that they all made some kind of provision for prohibiting any adoption that would not be in the adopted person’s interest. In a review of the origin and development of American adoption laws, Witmer and others noted: “. . . most laws (at least as interpreted judicially) have had the welfare of children as their main purpose. As a means of promoting the children’s well-being, the laws seek to assure that adoption is in the children’s interest and that they are adopted by persons who are able and willing to provide adequately for their care” (Witmer et al. 1963, p. 43).
There are two major ways in which these values are implemented in American practice. In the first, the placement of the child is arranged through the services of a state-licensed child placement agency. The agency assumes guardianship of the child and may place the child in a temporary foster home until adoptive parents meeting agency standards (often more stringent than those of the courts) are found. In recent years temporary foster placement has been dispensed with more frequently, and the child is placed with adoptive parents as soon as it leaves the hospital where it was born. This trend reflects a change in how important adoption agencies regard an assessment of the child’s physical status, temperament, and especially his intellectual capacity in finding the proper home for him; there is less emphasis in recent years on “perfect matching.”
Placement through a licensed agency is legally mandatory in only two states. Thus, roughly half of all nonrelative adoptions are arranged without the intermediary services of licensed agencies (“independent adoptions”). In such cases, however, the adoptive home is investigated by the court (or some agency designated by the court) having the responsibility of determining whether the adoption is in the best interests of the parties concerned. The focus is on prospects for the child’s social and psychological development, and the suitability of the adoptive parents is usually the chief concern in the investigation.
Concern for child welfare is also evident in the adoption practices of nonliterate societies; however, there is less emphasis on psychological development and more on the physical survival of the child. Lowie (1930) described cases of maternal mortality in which the surviving infant died of starvation unless a tribeswoman capable of nursing was willing to adopt and suckle the child. He also noted that the high incidence of orphanage among Plains Indians, as a result of war raids, was alleviated by adoption. Usually close relatives adopted the child, but it was not uncommon for a stranger who had lost a child resembling the orphan to adopt it as a substitute.
Legitimization. Birth into a family serves the function of conferring upon the child a set of ascribed social positions that define his relationship to other members of the society. When a child is born outside the family, a problem exists as to where to locate the child within the society’s network of social positions (Winch 1952). While it is usually easy to identify the child’s biological relationship to its mother, there may be a question as to the child’s paternity. According to Malinowski (1929), in all societies a father (although not necessarily the biological one) is considered to be indispensable to the child as a guardian and as a male link between the child and the rest of society. This “principle of legitimacy” appears to be culturally universal.
For the child without parents or the child born outside the family adoption establishes the links to the larger society by placing him within a family setting. With few exceptions, statuses that would be ascribed to any natural child of the adopting family are assumed by the adoptee. The adoptee is granted legitimacy by being linked to a male adult. In most societies in which birth out of wed-lock is stigmatizing to the child, the stigma is removed through adoption. The adopted child is treated as if he had belonged to the family all along. Although there may be some surreptitious gossip about the specialness of the child’s status (as in the contemporary United States), the fact of adopted status is rarely concealed by the adoptive parents from either the child or their social acquaintances (Kirk 1964).
The existence of the biological parents may affect both adoptive parents and adoptive children in a variety of ways. In almost all agency adoptions, as well as in most independent arrangements, the identity of the biological parents is unknown to the adopters. A few relevant facts, such as educational level and condition of health, may be all the adoptive parents know. There is a broad range of reactions to this situation, both in the attitudes held by the adoptive parents and in the mode of their describing the natural parents to the child. The adoptive parents may be relatively unconcerned about the child’s background, which is most commonly the case, or may seek further and more detailed information. Themes used in telling the child about his adoption may range from presenting his natural parents as “bad” and rejecting to simply indicating that they were unable to take care of him and wanted him to have a good home (Witmer et al. 1963). The degree to which the adoptive parents are able to accept the existence of the child’s natural parents without developing rejecting attitudes toward them appears to be positively associated with their satisfaction with the adoption (Kirk 1964). It should be noted that the complete separation of natural and adoptive parents that is common in American society is not universally the case. In some Polynesian groups, although the child is given full kinship status in his adoptive family, he knows and maintains a relationship with his natural parents; this is also the case, of course, in the many societies in which children—or even adults—are adopted in order to secure an inheritance (see below).
Parental status. While it is common to think of adoption as serving to confer certain statuses on the child, it also confers the status of parenthood on adults. In societies in which nonparenthood is somewhat stigmatized and the desire for children is great, there may even be competition for adoptable children. Currently this is the case in the United States; over the last two decades applicants for adoption have outnumbered available children by an approximate ratio of seven to one (nonrelative adoptions only). This shortage in the supply of infants has led to the development of a lively black market in adoptable children. High fees are paid by prospective adopters to persons who can arrange for the placement of a child.
Similar tendencies are found in nonliterate societies, especially in Oceania. Among some East Torres Islanders, children are adopted even prior to birth and often grow up without learning the identity of their natural parents. In the Banks Islands payment of the midwife’s fee is sufficient to establish adoptive claim to a child. If the husband of the natural mother cannot afford the fee or happens to be away at the time, another man is likely to arrogate paternity (Lowie 1948, p. 57). This practice of paying the medical expenses of the natural mother in return for custody of the child is remarkably similar to practice in non-agency adoptions in the United States.
In addition to satisfying the desire for children or providing adults with an honorific status, adoption may convey the prerogatives of parental authority to the adopter, thus providing a means of social control. Such is the case in the Japanese system of oyabun-kobun (Ishino 1953): a leader, such as a work-gang foreman, becomes a symbolic parent, “adopting” his adult followers ritually.
The transmission of property. Systems of descent and the institution of private property are closely intertwined. In many societies the principal function of the family is to provide lines for the transmission of property. When natural heirs are not available, this function may be served by means of adoption. For example, among upper-class Chinese who lacked male heirs legal rules specified which boys were to be adopted in order to fill the male line of descent, the boys usually being sought first from the closest collateral kin (Freedman 1958). The yoshi system in Japan provides for the acquisition, by a person having an economic relationship to a family, such as a tenant, of kinship status through adoption, with the adoptee’s descendants forming a branch of the adoptive family [seeKinship, article onpseudo-kinship].
Similar patterns are found in Western society. Both the Greeks and Romans utilized adoption to insure continuation of the family line. Similarly, the Napoleonic Code was concerned primarily with the inheritance aspects of adoption and provided only for the adoption of adults. Up until the early twentieth century the transmission of property by acquiring legal descendants when none were available was probably the principal function of adoption. Thus, adoption was largely an upper-class phenomenon. In the lower classes, when adoption occurred, it served as a form of indenture; the “property” that was acquired was the right to the labor of the adoptive child.
Most societies that practice adoption to any considerable extent have well-articulated norms specifying the property rights involved. There are four sets of relationships to be considered. In many Western societies, the inheritance rights of the adopted child are equivalent to those of a legitimate natural child of the adoptive parents. In some countries, however, restrictions safeguard the inheritance rights of specific relatives. Since adoption may involve sharing an estate with natural children, some societies prohibit adoption by those who have natural heirs except in special cases where the adoptee has saved the life of the adopter. In most jurisdictions the adopters have little, if any, right to inherit from the adoptee. And while adoption theoretically creates a binding substitute for the biological relationship, in most cases the adopted child retains his rights of inheritance from his natural parents, and they from him (United Nations 1956). These patterns probably reflect the high value attributed to blood relationships in Western culture.
Much of the early legal concern over adoption focused on property transmission. However, in the early 1900s, and particularly during the period following World War I, many Western nations passed their first adoption laws or revised existing laws. The new laws sought to regularize numerous de facto situations and to protect the adopted child. Analysis of their content indicates a clear ascendancy of the child-welfare function over the heir-providing function.
Adoption research. Research in adoption can be divided into two areas. The first consists of studies of the adoption process and the practices of adoption agencies. For example, Maas and Engler (1959) explored the barriers to the adoption of the large numbers of children in foster homes and institutions (particularly older children) who could benefit from permanent adoptive homes (see also Child Welfare League 1958). Other studies have focused on the criteria used in the selection of adoptive parents (Child Welfare League 1956– 1957).
The second principal area of adoption research is the study of adoption outcome, particularly the outcome for the child. Of special concern has been the evaluation of the chief modes of arranging adoptive placements: independently or through a child welfare agency (Amatruda & Baldwin 1951; Child Welfare League 1951; Simon 1953; Theis 1924; Witmer et al. 1963). Most of the studies use some measure or judgment of the “quality” of the adoptive home as the criterion of success or failure; home quality is conceived in terms of those social and psychological characteristics thought to be most conducive to the child’s physical and emotional development. These studies show that a substantial majority of adopted children are placed in acceptable homes through either placement system, with the percentage of highly evaluated homes running somewhat higher in favor of agency placement.
It must be noted, however, that the characteristics of adoptive homes thought to be related to children’s adjustment by professional practitioners have shown only low correlation with actual measures of adjustment in follow-up studies. For example, studies have shown that the age of the adoptive parents is not significantly related to either measures of the child’s adjustment or evaluations of the quality of parental care; moreover, there is no evidence that postadoptive fertility is detrimental to the adoption outcome. The more subtle and elusive assessments of the personalities of adoptive parents made by agencies in the course of selection have yet to be correlated with systematic measures of child adjustment made after a substantial follow-up interval. Thus, the results of the scattered research evaluating adoption outcome in terms of home quality are far from definitive at this point.
The adjustment of the respective parties to adoption has been the focus of another research strategy in the study of outcome. It has been found that children adopted independently score lower, on the average, on a battery of adjustment measures than a matched sample of natural children. The differences, while small, are statistically significant; however, they tend to disappear altogether when the comparison is limited to children placed in early infancy (Weinstein 1965). The adjustment of the adoptive parents has been the concern of an extended series of studies by Kirk (1964). His central thesis is that adoptive parents suffer from “role handicap” stemming from the romanticization of natural parenthood and the view of adoption as an acceptable but inferior alternative; he concluded that acknowledgment of, and coping with, the differences involved in being an adoptive parent are adjustive, both in terms of parental satisfaction and relations with the adoptive child.
Eugene A. Weinstein
Amatruda, Catherine s.; and Baldwin, Joseph V. 1951 Current Adoption Practices. Journal of Pediatrics 38: 208–212.
Befu, Harumi 1963 Patrilineal Descent and Personal Kindred in Japan. American Anthropologist 65:1328–1341.
Boehm, Bernice R. 1965 Adoption. Pages 63-68 in Encyclopedia of Social Work. New York: National Association of Social Workers.
Child Welfare Leagueof America 1956–1957 A Study of Adoption Practice. By Michael Shapiro. 3 vols. New York: The League.
Child Welfare Leagueof America 1958 Deterrents to the Adoption of Children in Foster Care. New York: The League.
Child WelfarE Leagueof America, Committeeon Standardsfor Adoption Service 1951 A Followup Study of Adoptive Families. New York: The League.
Child Welfare League of America, Committee on Standards for Adoption Service 1959 Child Welfare League of America Standards for Adoption Service. New York: The League.
Council of State Governments 1954 Summaries of State Laws Pertaining to the Adoption of Children. Chicago: The Council.
Freedman, Maurice (1958) 1965 Lineage Organization in Southeastern China. New York: Humanities Press.
Ishino, Iwao 1953 The oyabun-kobun: A Japanese Ritual Kinship Institution. American Anthropologist New Series 55:695–707.
Kirk, Henry D. 1964 Shared Fate: A Theory of Adoption and Mental Health. New York: Free Press.
Kornitzer, Margaret 1952 Child Adoption in the Modern World. New York: Philosophical Library.
Lowie, Robert H. 1930 Adoption, Primitive. Volume 1, pages 459–460 in Encyclopaedia of the Social Sciences. New York: Macmillan.
Lowie, Robert H. (1948) 1960 Social Organization. New York: Holt.
Maas, Henry S.; and Engler, Richard E. 1959 Children in Need of Parents. New York: Columbia Univ. Press.
Malinowski, Bronislaw 1929 Marriage. Volume 14, pages 940–950 in Encyclopaedia Britannica. 14th ed. Chicago: Benton.
Reid, Joseph 1957 Principles, Values, and Assumptions Underlying Adoption Practice. Social Work 2:22–29.
Simon, Abraham 1953 Social Agency Adoption: A Psycho-Sociological Study in Prediction. Ph.D. dissertation, Washington Univ.
Smith, I. Evelyn (editor) 1963 Readings in Adoption. New York: Philosophical Library.
Theis, Sophie 1924 How Foster Children Turn Out. New York: State Charities Aid Association.
United Nations, Department of Economic and Social Affairs 1956 Comparative Analysis of Adoption Laws. New York: United Nations.
Weinstein, Eugene 1965 Adoption and the Social Psychology of Infant Development. Pages 88–108 in Conference on the Research and Teaching of Infant Development, 1964, Papers. Unpublished manuscript, Merrill-Palmer Institute, Detroit.
Winch, Robert F. (1952) 1963 The Modern Family. Rev. ed. New York: Holt.
Witmer, Helen et al. 1963 Independent Adoptions: A Follow-up Study. New York: Russell Sage Foundation.
ADOPTION, the process of legally transferring parental rights and obligations from a child's biological parent or parents to one or more adults, is an age-old practice. The Code of Hammurabi in ancient Babylonia provided for such a transfer. Adoption was also practiced in ancient Egypt, Greece, and Rome. These adoptions focused on the needs of adults with regard to issues such as inheritance and religion. In 1851, Massachusetts passed the first modern adoption law, signaling a profound change in the meaning of adoption—the needs of the child, not the adult, would be paramount.
The Road to Legalized Adoption
Before 1851, legal adoption in the United States was extremely rare. English common law, on which American laws were based, did not recognize adoption because it jeopardized the inheritance rights of blood relatives. However, informal adoption (raising a child as one's own without any legal tie) was not uncommon. Beginning in the colonial era, dependent children were cared for in the homes of relatives, neighbors, or strangers, with the relationship often being formalized through indenture. Although indenture represented an economic relationship—providing for a child's basic needs in return for his or her labor—these arrangements could also be of a more familial nature. Childless couples often took these children, who were abandoned or orphaned, or whose parents were, for some reason, unable to care for them, sometimes using their wills to provide for their future. In addition, state legislatures occasionally passed private bills that changed a child's name and implicitly acknowledged its adoption.
By the mid-nineteenth century, a number of social and cultural transformations had occurred that set the stage for the passage of the Massachusetts Adoption Act of 1851. As the United States became more industrialized with the accompanying growth in cities and immigration, the number of orphaned, homeless, or neglected children rapidly grew as a result of the dislocations and uncertainties caused by these dramatic changes. Orphanages were opened to care for these children, but by midcentury some reformers began to argue that children needed the natural environment of a family, a setting that, not incidentally, was less expensive. In addition, affectionate child nurture and the belief in childhood innocence became more important, especially among the middle class, as homes lost many of their productive functions and became private havens presided over by a loving wife and mother.
Efforts to find homes for children intensified over the last half of the nineteenth century, with New York City reformer Charles Loring Brace leading the way. In 1853, Brace founded the New York Children's Aid Society, which "placed-out" poor and homeless urban youths into rural homes. In 1854, Brace loaded up 138 children and sent them west to Pennsylvania by train. In the ensuing decades, dozens of similar societies were created, and by 1930, "orphan trains" had relocated as many as 200,000 children to western states. Relatively few of these children were legally adopted, since the majority had at least one living parent or were older than adopters preferred.
Nevertheless, the placing-out movement contributed to the development of adoption laws and the growing acceptance of adoption. As more people took in unrelated children and raised them as their own, the need for a standardized legal means to formalize and protect that relationship grew. Meanwhile, courts had begun in the early nineteenth century to consider "the best interests of the child" when making decisions about custody. Under this doctrine, affection and nurturance could be viewed as equally significant as paternal rights or blood ties. Together, these changes led the Massachusetts legislature to pass the 1851 adoption act. The statute made the adoption procedure clear. The measure required the written consent of the biological parents or of a child's guardian if its parents were dead, severed all legal bonds between the biological parents and the child, created legal ties between the adoptive parents and the child as if it had been born to them, and required the judge to determine that the adoptive parents were "fit and proper" before issuing the adoption decree. By the end of the nineteenth century, most states had passed adoption statutes that, like the Massachusetts law, focused on the welfare of the child.
Social Workers, Stricter Adoption Laws, and Issues of Background
During the Progressive Era, some reformers began to focus specifically on adoption and to develop placement standards that emphasized investigation to ensure that a child's biological family was not unnecessarily broken up. The policy of keeping birth families together, which was widely accepted by 1910, coupled with social workers' efforts to encourage unwed mothers to keep their children, meant that relatively few children were available for adoption. Some of the few who were available were placed through private adoption agencies, which were first opened during this period. Unlike social welfare professionals, these volunteer-staffed agencies did not insist that un-married mothers keep their infants.
Meanwhile, adoption was gradually gaining acceptance. From 1907 to 1911, the Delineator, a popular women's magazine, ran a child-rescue campaign that urged its largely white and middle-class readers to adopt a dependent child as part of their patriotic duty. Since Americans understood all women to be essentially maternal, the magazine even encouraged single women to adopt. The campaign led to the adoption of at least two thousand children. It also contributed to the acceptance of adoption by downplaying the significance of a child's heredity—a primary fear of many prospective adopters—and emphasizing the power of a nurturing, Christian environment to overcome any genetic taint.
Heredity was a controversial issue in adoption, as were questions of race, ethnicity, and religion. Very few child welfare agencies existed to serve the needs of African American children, and blacks continued the tradition of informally adopting needy children in their communities. Concerns about race mixing also meant that any child whose race was not crystal clear would not be placed. The focus on racial matching, however, could conflict with efforts to preserve a dependent child's natal religion. In 1904, whites in Arizona kidnapped forty Irish orphans that Catholic nuns had placed with Mexican Catholic families and placed them in white families. The courts allowed the white families to keep the children over the vigorous objections of the Catholic Church.
In the 1920s, social workers continued to work for stricter adoption laws that stressed investigation and professional oversight. One goal was to revise state adoption statutes along the lines of the Children's Code of Minnesota, passed in 1917. Although the 1851 Massachusetts Adoption Act required a judge to determine an adoptive home's suitability, those investigations were notoriously superficial. By contrast, the Children's Code required a thorough investigation into the adoptive home by a state agency before the adoption could be approved, as well as a six-month probationary period before the adoption could be finalized. The code also closed adoption records to public inspection. By the end of the 1930s, most states had passed new adoption laws or updated old ones, and many contained the principles of the Children's Code. Nevertheless, almost half of all adoption placements were still made without the initial oversight of social welfare professionals. In these independent or private agency adoptions, lawyers, physicians, and volunteers placed children largely based on their intuition.
Adoption as the "Perfect Solution"
The 1940s saw significant changes in social workers' views toward illegitimacy and an explosion in the number of adoptions. Social welfare professionals began to argue that unwed mothers did not make the best parents and that their children would forever suffer from the stigma of illegitimacy. Psychological theory buttressed this position, suggesting that unwed mothers were neurotic young women whose pregnancies signaled a more deep-seated problem; by placing her child for adoption, the woman would gain a second chance to solve her problem and live a normal life. This view was especially appealing given that the war had seen a dramatic rise in the number of illegitimate births, including those to white, middle-class teens.
At the same time as the supply of adoptable infants increased, so did the demand. Already by the 1930s, concerns about a dependent child's heredity had lessened and the number of adoptions had grown. During the war and the postwar period, the number of legal adoptions swelled, as childless couples scrambled for a child with whom they could take their place in the postwar baby boom. In the mid-1930s, estimates put the number of adoptions at about 17,000 annually. By 1945, estimates had it at 50,000 a year; by 1965, the number had increased to 142,000. Adoption had became the "perfect solution" for all three parties to it.
Problems with the "Perfect Solution"
Although the numbers of adoptable children had increased, the supply could in no way meet the growing demand. In response, social workers in the late 1940s began to redefine the concept of "adoptability" to include minority, older, disabled, and foreign-born children. Most significantly, professionals began to focus for the first time on the needs of African American children. When efforts to find African American homes fell short, social workers in the 1960s began to place black children in white homes for adoption. By the early 1970s, approximately fifteen thousand transracial adoptions had occurred. In 1972, however, the National Association of Black Social Workers (NABSW) issued a statement that rejected transracial adoptions as a form of cultural genocide. In the wake of this pronouncement, many states required same-race placements. In the 1980s, the issue resurfaced because of the large percentage of black children in foster care who needed permanent homes. In the 1990s, a number of white foster parents filed antidiscrimination suits in order to adopt African American children. Despite the NABSW's continued resistance, Congress passed the Multiethnic Placement Act of 1994, which prohibited agencies from delaying or denying the adoption of a child in order to find racially matched parents. Any agency that did so risked the loss of federal aid.
The postwar shortage of white, American-born children also led to an interest in intercountry adoption. Orphaned and abandoned children from Germany and Japan were adopted in the years immediately after World War II. The adoption of Asian children increased dramatically after the Korean War; between 1966 and 1976, Americans adopted 32,000 foreign-born, primarily Korean, children. In 2000, Americans adopted more than 18,000 foreign children, over half from Russia and China. Girls comprised the overwhelming majority of Chinese adoptees, because Chinese families prize male children, whose value has increased since China began its one-family-one-child policy to curb population growth. In 2001, foreign-born children made up about 20 percent of all American adoptions. To combat the confusion and corruption that often marred these adoptions, such as exorbitant last-minute fees and failure to disclose a child's health problems, the Hague Convention on Intercountry Adoptions was written in 1993. This multinational treaty, which the United States ratified in 2000, establishes, among other things, accreditation standards for agencies; it remains to be seen if nations will abide by the treaty.
The shortage of white infants intensified in the early 1970s. Feminism and the cultural acceptance of premarital sex created a climate in which unmarried mothers no longer felt compelled to place their children. The legalization of abortion in 1973 also seems to have reduced the number of available children. The result was a rapid decline in the number of unrelated adoptions in the early 1970s, from almost ninety thousand in 1970 to fewer than fifty thousand in 1975. And for many of the mothers who still wished to place their children, a new attitude prevailed. These women now often took a role in choosing their child's parents, sometimes maintaining ongoing contact after placement. Although the trend at the start of the twenty-first century was clearly toward more openness, there was considerable opposition to these "open adoptions," with a concern that children would be confused as to who their "real parents" are.
Meanwhile, birth mothers and adoptees who had been part of the "perfect solution" began to critique the secrecy surrounding adoption. Although laws had closed records from the public, birth parents and adopted persons often had access to their case histories before World War II, since many children had been placed at an age when they could remember their biological families. With more unwed mothers giving up their children after the war, agencies sealed case files to protect all parties from the stigma of illegitimacy. In 1971, an adoptee, Florence Fisher, founded the Adoptees' Liberty Movement Association with the goal of unsealing records once an adoptee reached the age of eighteen. The adoption rights movement also included birth parents, primarily mothers, some of whom founded Concerned United Birthparents in 1976. Unsealing adoption records has proved to be an extremely contentious issue; as a compromise, many states have established state adoption registries and passed "search and consent" laws that assign a confidential intermediary to locate the birth parents to ensure that they desire contact.
More recently, adoptions by gays and lesbians became a hotly contested issue. Although by the end of the twentieth century a number of states routinely accepted gay parents, restrictive legislation still existed. In 2001, a federal judge upheld Florida's 1977 law that automatically disqualified gays and lesbians. Gay activists, in addition to contesting such laws, also challenged legislation that prevented homosexual couples from adopting together.
Ashby, Le Roy. Endangered Children: Dependency, Neglect, and Abuse in American History. New York: Twayne, 1997.
Bartholet, Elizabeth. Family Bonds: Adoption and the Politics of Parenting. Boston: Houghton Mifflin, 1993.
Berebitsky, Julie. Like Our Very Own: Adoption and the Changing Culture of Motherhood, 1851–1950. Lawrence: University Press of Kansas, 2000.
Carp, E. Wayne. Family Matters: Secrecy and Disclosure in the History of Adoption. Cambridge, Mass.: Harvard University Press, 1998.
Gordon, Linda. The Great Arizona Orphan Abduction. Cambridge, Mass.: Harvard University Press, 1999.
Grossberg, Michael. Governing the Hearth: Law and the Family in Nineteenth-Century America. Chapel Hill: University of North Carolina Press, 1985.
Holt, Marilyn Irvin. The Orphan Trains: Placing Out in America. Lincoln: University of Nebraska Press, 1992.
Marsh, Margaret, and Wanda Ronner. The Empty Cradle: Infertility in America from Colonial Times to the Present. Baltimore: Johns Hopkins University Press, 1996.
Rappaport, Bruce M. The Open Adoption Book: A Guide to Adoption Without Tears. New York: Macmillan, 1992.
Wadia-Ells, Susan, ed. The Adoption Reader: Birth Mothers, Adoptive Mothers, and Adopted Daughters Tell Their Stories. Seattle, Wash.: Seal Press, 1995.
Sections within this essay:Background
Types of Adoption
The Adoption Process
Obstacles to the Adoption Process
Searching for Birth Parents
National Council for Adoption (NCFA)
U. S. Department of Health and Human Services, Administration for Children and Families
The decision to adopt a child can be one of the most rewarding that an individual or couple can make. As with any rewarding decision, it can be extraordinarily complex. Those who wish to adopt a child must be willing not merely to welcome a new life into their hearts; they must also be willing to deal with legal and bureaucratic issues that can easily take as long as a typical pregnancy. The key to adopting successfully is to do one's homework: finding reputable attorneys and agencies, knowing the pros and cons of different types of adoptions, and understanding the need to be actively involved at every step without allowing impatience or frustration to take control.
People adopt for a variety of reasons. Many adoptive parents cannot have children. Others want to provide a loving environment for children in need of a home; many parents who adopt have already given birth to children. Some people choose to adopt "special needs" children (children with disabilities, for example). The reasons for adoption notwithstanding, the most important requirement for adoptive parents is that they accept adoption as being as irreversible as the birth process.
Beginning in the last decades of the twentieth century, overseas adoptions became increasingly common. More prospective parents turned to Russia, China, and South and Central America for adoption. This trend was spurred on by several factors, the two most important being easier availability and less fear of legal challenges. Domestic adoptions are not subject to widespread legal challenges, but it is not impossible for birth parents or birth relatives to initiate proceedings to revoke an adoption. For these reasons, it is critically important to work with people who are experienced in the adoption process and who understand what makes for a successful adoption.
When people talk about adoption they usually mean "unrelated adoption," the adoption of a child who has no blood or marriage ties to the adoptive parent. Often a grandparent or aunt or uncle will adopt a child whose parents have died or who cannot serve in their role as parents. Step-parents often adopt their step-children as a means of creating a stronger emotional and legal bond within the family. These adoptions are generally much easier and less complicated than a typical unrelated adoption.
When individuals or couples choose to adopt, they have several options.
People who wish to adopt a child who is as close to them culturally and physically as possible will often opt for domestic adoptions. A white couple may want to adopt a white baby, a black couple a black baby, and so on. Because there are more minority children available for adoption, prospective parents almost always have a longer wait if they wish to adopt a white child.
Often a prospective parent is unconcerned about the race or ethnicity of the child. Or the parent may actively seek a child of a different race or ethnic group. Multiethnic adoptions (also called transethnic or transracial adoptions) are generally easier when the parents seek a minority child, again, because there are more minority children available for adoption.
Because there are many more children overseas who are waiting to be adopted (in particular, many more who are under one year old), it is often easier for parents to adopt from another country. This action involves extra steps, of course, including dealing with both the U. S. government and the adoptee's government as well. A number of adoption agencies specialize in overseas adoptions.
The costs associated with adoption depend on the type of adoption and the age of the child, among other factors. An agency or other intermediary should be able to give you a detailed breakdown of how much you should expect to pay for the adoption. Agencies are also be able to provide information on sources for funding and possible tax breaks for adoptive parents.
Adoption is a complex process, but it follows a fairly predictable sequence of events. The first step for those who are serious about adopting is to contact someone who can provide assistance. Some people try to handle the adoption process themselves. Because the laws are so complex, doing so is illegal in a number of jurisdictions, and the sheer volume of regulations is often more than the average untrained person can handle.
Most people turn to adoption agencies when they decide to adopt a child. Agencies can be public or state-licenced private groups. Some agencies specialize in specific types of adoption, as mentioned above. Agencies place children whose birth parents have voluntarily surrendered their rights to their offspring or whose birth parents have had their parental rights terminated. Because agencies have considerable experience with adoptions, they can often make the process run more smoothly. A number of people, however, turn to "private placement," in which the biological parent or parents place the child directly with the adoptive parents. Often this action involves a third party (typically a lawyer, doctor, or a member of the clergy) who brings the biological and adoptive parents together and who then acts as an intermediary. Private placement is illegal in Connecticut, Delaware, and Massachusetts, and it is strictly regulated in several other states.
The next step after choosing a third party in the adoption is to arrange for a "home study." This is an evaluation of the prospective parent's fitness to raise a child. Not surprisingly, the process is detailed. A prospective parent is interviewed, often by several people. The parent's home is visited, and letters of reference and recommendation are asked for. The prospective parent needs to provide information about his or her physical and emotional health, financial status, employment history, marital history, and so on. The process is by necessity extremely thorough.
If the child has not yet been born, the prospective parent or the intermediary (whether an agency or an individual) selects a pregnant woman who has decided to give up her baby for adoption. If the child has been born, the prospective parent is offered a chance to meet him or her (for domestic adoptions). Obviously, a prospective parent may not be able to meet a child from overseas right away, but pictures and often videotapes of the child are made available. Some agencies do require that the prospective parent visits the country of the child's birth to meet with the child before the process is finalized. Meeting the child is an important turning point in the adoption process because it is the first chance for the parent and child to bond, if only for a brief time.
At this point the goal is to make sure all the legal requirements have been met. Many forms need to be filled out and filed with different courts and government agencies. For domestic adoptions, the child may be placed with the adoptive family for supervision to ensure that the adjustment is smooth before the adoption is finalized. This step depends on the state laws and the courts. Overseas adoptions by necessity cannot require a supervised adjustment period, so usually when the parent makes a second trip it is to take custody of the child. Before this action can be accomplished, however, the child must be granted U. S. citizenship. This step involves more paperwork but usually does not take long. However, adoptive parents should be prepared to wait just in case, since two government bureaucracies are at work instead of one.
Each state has its own regulations regarding the adoption process, so it is important to learn the laws governing your particular state and also to know that the intermediary you choose has a thorough knowledge of your state's laws and requirements.
The adoption process is not thorough simply because bureaucrats like to make people fill out dozens of forms. Adoption is a permanent decision, and each adoption needs to be made ironclad to avoid difficulties later on.
Probably the greatest fear adoptive parents have is that the birth parents will change their minds and petition to get their children back. Although the laws are thorough, sometimes a birth parent will challenge an adoption for any one of a number of reasons. Most states allow birth mothers to revoke or withdraw their consent to give up their children for adoption; in some states this can be done at any time before the adoption has been finalized. By law, birth mothers actually cannot give consent to an adoption until after their babies have been born; Alabama, Hawaii, Washington, and Wisconsin allow prebirth consent in certain circumstances. But there are strict rules regarding consent. A birth parent who has been proved to have deserted the child, for example, has no legal right to give or revoke consent.
Many adoptees are the children of single women who may not even know the fathers' identity. Sometimes, birth fathers may wish to exercise their rights to claim their children. Unwed, or "putative" fathers can establish certain rights thanks to changes in state laws since the 1970s. That said, a putative father needs to prove that he has actually earned these rights. Putative fathers have to prove their commitment to their children by having signed the birth certificate, provided support for the child, and communicated with him or her, and by having obtained a court order establishing paternity. They should also have submitted their names to a registry of putative fathers in their states. Moreover, in most cases all of these steps need to have been taken before a birth mother has made a petition to the court to give up her child for adoption. Court cases involving putative fathers who tried to revoke adoptions after claiming they knew nothing of their children's births have resulted in many states clarifying their laws. Putative fathers may have the law on their side, but again, only if they can prove they are truly concerned for their children's welfare.
Within pockets of the adoption community the question of whether to allow children of one race or color to be adopted by parents of another race or color is a source of heated controversy. Some people believe that mixed-race adoptions are a good practice because they break down racial, ethnic, and cultural barriers. Others see mixed-race adoptions as a means of diluting the cultural and ethnic heritage of adopted children.
Multiethnic adoption presents a compelling problem for two reasons. One is that, as noted above, there are many more minority children available for adoption (including mixed-race children). The other is that there are many more whites than minorities who are willing to adopt. Insisting on matching race to race can leave many children without available parents to adopt them. For children of mixed ancestry, matching race to race is hardly possible.
Federal law protects parents and children from this dilemma. The Multi-Ethnic Protection Act (MEPA) of 1994 states that no adoption agencies that receive federal funds can deny or delay a placement based on race or ethnicity. Occasionally there are still some court cases that raise the issue, but parents who work with a reputable agency and knowledgeable attorneys should not have to worry.
MEPA does not cover children of American Indian (Native American) ancestry. The Indian Child Welfare Act of 1978 was passed to protect Indian children from being taken away from their families for adoption without parental or tribal consent. This action was apparently not uncommon in years past, and the protection is thus important. Unfortunately, some have read the law to mean that no child with Indian ancestry can be legally adopted, even with the birth parent's consent, without tribal approval. Complicating the matter is the unclear definition of Indian ancestry; some tribes may consider a person with one drop of Indian blood to be Indian. Clearly there are many layers to this issue, and it requires careful evaluation by the prospective parent with the help of knowledgeable intermediaries.
Open adoption allows the birth family to have visitation rights with the child and the adoptive family. The idea is that maintaining contact with the birth family is beneficial for the child. In some cases it may be, but it can also create uncomfortable situations in which the child ends up being forced to make a choice most children should never have to make. An open adoption can take place only if both the adoptive and birth parents sign an agreement and only if that agreement meets the approval of the court. Different states have different rules about open adoption procedures and also different approaches for addressing whether open adoptions are legally enforceable.
Again, this issue requires careful consideration by prospective parents. In some cases agencies encourage open adoption, but if you wish to adopt a child and open adoption makes you uncomfortable, you should make your concerns known early on.
Whether an adopted child may want to know his or her birth parents does not come up at the time of adoption but the question is worth thinking about early on. State laws vary widely on whether adopted children can have access to the names of their biological parents. Often those parents do not want contact with the child. Even if they do, the situation can be problematic for all parties. The issue is not really within the scope of this discussion, but adoption agencies and intermediaries should be able to answer questions about it. Bear in mind that, according to figures form the National Council on Adoption, no more than two percent of adopted adults search for their biological parents.
Probably the best first step is to conduct some research, either through materials available at the public library or over the Internet. There are a number of adoption-related web sites, but keep in mind that not all of them offer the same quality of information. The National Adoption Information Clearinghouse, which is run by the U. S. Department of Health and Human Services' Administration on Children and Families, may be a good starting point. Its web address is http://www.calib.com/naic.
Because each state's laws vary so widely, it is critically important to check with state government agencies that regulate adoption to determine your specific rights and responsibilities.
There are numerous adoption agencies, and it makes sense to get information from several before making a decision on which one would be the best option. Once you choose an agency, you will be working with that group for the next several months, so make sure you are comfortable with your choice.
The Adoption Resource Book. Lois Gilman, HarperPerennial, 1998.
Family Bonds: Adoption and the Politics of Parenting. Elizabeth Bartholet, Houghton Mifflin, 1993.
The Law of Adoption and Surrogate Parenting. Irving J. Sloan, Oceana Publications, 1988.
The Unofficial Guide to Adopting a Child. Andrea Della-Vecchio, IDG Books Worldwide, 2000.
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