Marginalizing Adoption Through the Regulation of Assisted Reproduction

Resumen

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Introduction . I. Assisted Reproduction and the Adoption Model . II. Assisted Reproduction and the Heterosexual Family . III. Assisted Reproduction and Adoption in the Islamic World . IV. Marginalizing Adoption Through the Regulation of Assisted Reproduction . Conclusion .

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Extracto

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Marginalizing Adoption Through the Regulation of Assisted Reproduction

Richard F. Storrow : I thank Pennsylvania State University for the research support that made the preparation of this Article possible, the editorial staff of the Capital University Law Review, and Carlos Ball for helpful comments on a previous draft.

Introduction .

At the second annual Wells Conference on Adoption Law, I was asked to comment on Professor Lynn Wardle's treatment of the topic "What does the rest of the world say? How do different nations and states determine when and if adoption doctrine applies to assisted reproduction related transactions?"1 This was a broad comparative law question about whether the legal treatment of assisted reproduction in other countries relies on adoption law or policy. It was a question about what legal hurdles a vast worldwide population of individuals and couples who seek access to assisted reproduction might face in the course of their quest to create a family.

Lynn Wardle has recently devoted the bulk of his scholarly energy to condemning gay and lesbian parents.2 Wardle believes they are sexually unrestrained egoists who break the law and harm children and society.3 He urges policymakers to block efforts by gays and lesbians to become parents either by adoption or by assisted reproduction.4 He also advocates severing the relationship between gay and lesbian parents and their children whenever possible, because they are not "true" families.5 At the Wells Conference, Wardle relied heavily on these views.6 He largely ignored the broad comparative question he was asked to address to reflect at length on the debate over adoption by gays and lesbians and to make very general statements about the regulation of assisted reproduction in the United States.7He argued that only heterosexual married couples who are able to procreate with their own gametes and intend to raise the resulting children should have access to assisted reproduction.8 Gays, lesbians, and single individuals, he argued, should not have access to reproductive technology.9 In support of these propositions, Wardle made numerous misstatements of fact and law, made critical omissions, submitted erroneous quotations, and presented misleading translations of foreign-language documents. More disturbing than those flaws, however, was Wardle's implication that adoption is a degraded form of parenthood that, in all but the rarest of cases, prevents children from reaching their highest potential.

In this Comment on Wardle's remarks, I will discuss the flaws and fabrications in his argument. I will also make two major points: (1) the way a society views adoption has a strong influence on the forms of assisted reproduction that the society will permit, and (2) countries with strong commitments to both individual autonomy and child welfare reject the notion that the infertile may not have medical assistance to reproduce unless they satisfy the standards required of adoptive parents. In support of these points, I will in Part I show how adoption plays a role in discussions of what law and policy should govern assisted reproduction. Part II will then explore the role of heterosexuality and marriage in the law of assisted reproduction, and Part III will comment on how Islam's restrictions on assisted reproduction stem not from its disapproval of gay and lesbian parents, but instead from its religious rejection of adoption and its cultural rejection of childless marriages. Part IV reflects on the law of France, where restrictions on assisted reproduction and adoption enshrine procreative parenthood in a way that effectively casts adoption as a substandard form of parenthood. Part IV also criticizes a recent proposal to codify a marriage preference in the adoption of children from foster care and describes recent developments in the United Kingdom, Australia, and New Zealand that reject the best interests of the child standard as a proper means of restricting access to assisted reproduction.10

I. Assisted Reproduction and the Adoption Model .

Because adoption is substantially older than reproduction-assisting technologies, regulation of adoption is much more established.11 An issue that frequently arises in discussions about whether and how to regulate assisted reproduction, then, is how much of the regulatory framework should be borrowed from already existing and familiar adoption principles. As a general matter, the questions of whether and how adoption principles should apply in the context of assisted reproduction arise at three specific junctures in the course of and subsequent to one's resort to assisted reproduction. The first of these is when an individual or a couple seeks access to reproduction assisted technologies. The second is the moment of the initial legal determination of the child's parentage. The final juncture is when the child asserts h...

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