The Role of Adoption in Winning Public Recognition for Adult Partnerships

Resumen

---

Introduction . I. Family Privacy: Autonomy or Sanction? II. Assisted Reproduction: Privacy or Ratification? . A. Artificial Insemination by Donor: Is it Adultery?. B. Surrogacy: Is it "Baby-Selling"?. III. Adoption: Ratification of Private Choice or State Imprimatur? . A. When Will Parents Elect Adoption?. B. Which Parents Will the State Recognize?. IV. Interstate Recognition: The Next Battle in the Culture Wars . Conclusion .

Ver el contenido completo de este documento

Extracto

---

The Role of Adoption in Winning Public Recognition for Adult Partnerships

I would like to thank Susan Appleton, Leslie Harris, Brad Joondeph, and Nancy Levit for their comments on an earlier draft of this manuscript.

Introduction .

Adoption stands beside marriage as the most public of family institutions. It confers the imprimatur of the state on the transfer of parenthood from one legal parent to another.1 It does so in the name of protecting children's interests.2 As Rickie Sollinger's history of adoption suggests, however, it also does so in ways that reinforce dominant norms and understandings of family regularity.3 Precisely because adoption confers state approval, and does so publicly with the full force of the law behind it, it carries societal symbolism that extends well beyond its impact on any individual family.

The creation of family, which is publicly celebrated through marriage and adoption, is also among the most private of matters. Shared intimacy stands as the foundation of family bonds.4 That intimacy, whether sexual or emotional, carries with it dependence and vulnerability.5 The vulnerability of an improvidently pregnant mother and her newborn has long been a concern of adoption policy; less so the vulnerability of those who seek recognition as parents and face rejection.6 Precisely because the creation of family involves the deepest of emotional bonds, public celebration can occur only in circumstances that reaffirm private security and well-being.

This combination of public approval and private vulnerability has to date limited the role of adoption in assisted reproduction. Public recognition, with its symbolic embrace of the underlying practices, is too risky a venture for the controversial and the experimental.7 Intimate bonds, whether those between parents and child or partner to partner, need to be forged far from the glare of public scrutiny. Those who would create new families seek public sanction only when the outcome is certain, or the alternatives unsatisfying. Prospective parents turning to assisted reproduction have enjoyed too many ways to secure to secure the families of their choice without risking public disapproval or officious intrusion.8Adoption has therefore been largely irrelevant to the process.

I predict, however, that the relationship between adoption and assisted reproduction is about to change. While the relationship between parent and newborn is always fragile, the relationship between intimate adults is another matter. They can pick and choose when to seek public recognition and use private agreements to govern a large part of their relationships.9Moreover, whereas marriage once served as the mandatory and exclusive avenue for recognition of parental partners, it is no longer.10 With increasing numbers of unmarried households,11 adoption offers an alternative to marriage for those otherwise unable to secure public recognition of their relationships. The new frontier for adoption may accordingly be recognition, not of parent-child ties, but of the partnership bonds that constitute an important part of the child's experience of family.

To explore the role of adoption in winning public recognition for adult partnerships, I will approach adoption as a consumer institution, the product of which is official state sanction.12 In doing so, I will bracket the wisdom of the likely developments in order to focus on the logic of the niche they are likely to occupy. I will argue that adoption, like any other consumer institution, requires willing sellers and eager buyers able to agree on shared terms. Many focus on the role of adoption in identifying which parents the states should recognize and accordingly acknowledge that adoption is irrelevant for those parental relationships the state will not countenance.13 But the significance of adoption also disappears if biological parents do not use adoption to transfer custody of their children, or prospective parents acquire and raise children without state sanction.14Adoption will therefore contribute most to assisted reproduction in those arenas where the state is willing to confer approval on prospective parents, the approval itself confers benefits not otherwise available, and the terms are not so onerous as to encourage the participants to look elsewhere for recognition.

In considering the contribution of adoption to the determination of parentage in the context of assisted reproduction, this Article will first attempt to place adoption within the framework of our understanding of public and private spheres. The idea of family privacy is of relatively recent vintage.15 I will argue that while conceptions of familial privacy once distinguished between sanctioned and illicit relationships, today those ideas of family privacy may also extend to a third category of permissible bond...

Ver el contenido completo de este documento

---