Adoption, Race, and the Constitution

• Author: Ruth -Arlene W. Howe
• Pages: 45-47

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

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

During the latter half of the twentieth century, legal access to ABORTION and lessening social stigma associated with NONMARITAL CHILDREN resulted in dramatically fewer voluntary relinquishments of white infants?what most

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prospective adopters initially seek. Instead, waiting children often had special needs, were older or minority children, or were part of large sibling groups who did not "match-up" with approved waiting families. A disproportionate number of these children were African American who remained in foster care longer periods of time than other children due to a shortage of approved African American homes.

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

Because most forms of RACIAL DISCRIMINATION are unconstitutional and all racial criteria are subject to STRICT SCRUTINY, the question of what weight to give race in granting or denying adoption is a sensitive...