First Parents: Reconceptualizing Newborn Adoption

• Author: James G. Dwyer
• Position: Professor of Law, William & Mary School of Law
• Pages: 293-320

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FIRST PARENTS: RECONCEPTUALIZING NEWBORN ADOPTION

JAMES G. DWYER^[_1]

A small but significant percentage of newborn babies have biological parents who are unwilling or unfit to raise them.¹Some such birth parents relinquish their legal rights to the baby so that other adults can adopt the baby soon after birth.²In some other cases, a child protection agency assumes custody of a baby at or soon after birth because the birth parents abandon the baby or because the agency determines that the birth parents are unfit to raise a child,³and in a subset of these cases, a court terminates the birth parents’ rights and approves adoption of the babies by other adults.⁴In these two sets of cases involving newborns—what are now called “parental placement adoptions” and “agency adoptions”⁵—the adoptive parents are the only caretaking parents the children ever have and for all intents and purposes raise the children just as do biological parents who become legal parents.

Yet these lifetime caretakers forever bear the label “adoptive parents,” a status with connotations different from “natural parent” or simply “parent,” terms used in state statutes to designate birth parents.⁶In part, the connotations are positive. We might suppose adoptive parents must be more competent and motivated to raise children, because they had to go through an arduous qualification process to become parents.⁷Or we might

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[_1] Professor of Law, William & Mary School of Law.

¹See James G. Dwyer, The Child Protection Pretense: States’ Continued Consignment of Babies to Unfit Parents, 93 MINN. L. REV. 407, 424–27 (2008).

²See James G. Dwyer, A Taxonomy of Children’s Existing Rights in State Decision Making About Their Relationships, 11 WM. & MARY BILL RTS. J. 845, 884 (2003).

³Id.

⁴See id. at 888.

⁵Id. at 884 (citation omitted).

⁶See, e.g., OHIO REV. CODE ANN. § 3111.01(A) (LexisNexis 2003) (defining “parent and child relationship” as “the legal relationship that exists between a child and the child’s natural or adoptive parents”).

⁷Dwyer, supra note 2, at 882–83; see also Karen March, Perception of Adoption as Social Stigma: Motivation for Search and Reunion, 57 J. MARRIAGE & FAM. 653, 656

(continued)

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view them as especially altruistic, because they give their love, attention, and resources to a child who is not “their own.”⁸But the cultural connotations are predominantly negative. Adoptive parents are widely viewed as artificial rather than “real” parents, because “the dominant North American family ideology defines a real family as the ‘nuclear family unit of a heterosexual couple and their biological children.’”⁹Implicit in the view that adoptive parents are altruistic is the assumption that the adopted child is not the adoptive parents’ “own child,” but rather always remains the child of the biological parents.¹⁰As such, they are only a second best alternative for a child, incapable of being ideal parents no matter how devoted they are.¹¹And most people harbor doubt as to adoptive parents’ love of or connection to the children they raise because the children are not their biological offspring.¹²In addition, because of the starkly different legal treatment of biological parents and adoption applicants, “adopters tend to experience the adoption process itself as problematic, intrusive, and

(1995) (noting survey result showing how some adoptees believed adoptive parents “‘are more loving and dedicated because, unlike most parents, they choose to have children’”).

⁸Cf. Charlene E. Miall, The Stigma of Adoptive Parent Status: Perceptions of Community Attitudes Toward Adoption and the Experience of Informal Social Sanctioning, 36 FAM. REL. 34, 37 (1987) (noting that adoptive parents are often told how kind it was of them to take in someone else’s child).

⁹Miall, supra note 8, at 35 (“As defined in North American society, the biological or blood relationship among individuals forms the basis for kinship ties. Indeed, the blood tie is conceptualized as indissoluable [sic] and of a mystical nature that transcends legal or other kinship arrangements.”); id. at 37; Katarina Wegar, Adoption, Family Ideology, and Social Stigma: Bias in Community Attitudes, Adoption Research, and Practice, 49 FAM.

REL. 363, 363 (2000) (citation omitted); see also id. at 364 (noting “the dominant societal belief that adoptive motherhood is inferior”).

¹⁰See Miall, supra note 8, at 37.

¹¹See Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 DUKE L.J. 1077, 1153 (2003); Wegar, supra note 9, at 364.

¹²Cahn, supra note 11, at 1153 (citing a survey showing “only [seventy-five] percent believed that adoptive parents love their children as much as they would have loved their biological children”); March, supra note 7, at 654, 656–67; Miall, supra note 8, at 35 (stating that “a biological tie is often presented as a prerequisite to a loving relationship with a child”); id. at 36 (noting adopters’ perception that the public believes “bonding and love in adoption are second best”); id. at 37; Wegar, supra note 9, at 364 (providing that “because a biological tie is assumed to be important for bonding and love, adoptive families are considered second best”).

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humiliating.”¹³That adoption applicants must undergo rigorous scrutiny,¹⁴whereas there is no examination of biological parents before they become legal parents,¹⁵can convey the impression that adoptive parenting is inherently suspect.

Correspondingly, being an adopted child carries a stigma.¹⁶This

stigma might today include some positive connotations. Some might think an adopted child must have especially good caretakers, as noted above, because adoptive parents are virtuous people whom an adoption agency has investigated and interviewed.¹⁷Or some might think that the adopted children must be especially charming or talented for people other than their birth parents to choose them and commit to caring for them for many years.¹⁸

However, historically to a large degree, and perhaps more subtly today, the adopted child stigma has carried negative connotations. Adopted children are seen as coming from a defective biological line; their birth parents either did not want them or were immoral and dysfunctional.¹⁹

Adopted children are seen as damaged goods, presumed to have suffered maltreatment after birth before being rescued and processed by the child protective system, and therefore, likely to have lifelong struggles.²⁰This

presumption is accurate as to a substantial percentage of adoptees, because the reality is that proactive child protective service (CPS) intervention at birth to protect babies at high risk of maltreatment is rare,²¹so children

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¹³Wegar, supra note 9, at 364; see also id. 366–67 (describing research showing that adoption workers also stigmatize adoptive parents).

¹⁴Cahn, supra note 11, at 1150; Dwyer, supra note 2, at 882–83.

¹⁵Cahn, supra note 11, at 1150.

¹⁶See Karen March, The Dilemma of Adoption Reunion: Establishing Open Communication Between Adoptees and Their Birth Mothers, 46 FAM. REL. 99, 104 (1997).

¹⁷See Cahn, supra note 11, at 1150; Dwyer, supra note 2, at 882–83.

¹⁸Cf. Paul Sachdev, Adoption Reunion and After: A Study of the Search Process and Experience of Adoptees, 71 CHILD WELFARE 53, 60 (1992) (relating comments by adoptees

that “they were made to feel that they were ‘chosen’ and ‘special’”).

¹⁹See March, supra note 7, at 656; Miall supra note 8, at 36 (referring to “the bad blood theory”); id. at 37–38; Wegar, supra note 9, at 364.

²⁰See Cahn, supra note 11, at 1153; Miall, supra note 8, at 38; Wegar, supra note 9, at 363 (noting a study finding widespread doubt about the mental health of adoptees and expectation that adoptees will have developmental and social problems).

²¹Dwyer, supra note 1, at 441–52.

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who come into CPS custody for the most part do so only after already having experienced abuse or neglect.²²Adopted children also appear atomistic, because they are disconnected from their extended biological family and because we suspect their extended adoptive family keeps them at arms length, never treating them as full or equal members of the family.²³They are persons with no real family.²⁴Because of this perception, adopted children are often uncomfortable revealing that they were adopted.²⁵This perception is a major reason why many adoptees undertake a search for their birth parents: we communicate to them that they are deficient, lacking something of great importance, and as a result, they go to great lengths to try to become complete.²⁶

Thus, there are many families in our society in which the legal parents are the only caretaking parents an adopted child has ever known, functioning the same way and having the same needs as any other family, and which are viewed by adoptees as their true family,²⁷yet which the law and society label as not “real” or “natural,” solely because the legal, permanent, caretaking parents are not the adults who biologically produced

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²²Id.

²³Apparently many in fact do. See March, supra note 7, at 657. But cf. Miall, supra note 8, at 36 (reporting that two-thirds of adopters interviewed said that close friends and family viewed their adoptive parent-child relationships “as basically the same as biological parenthood,” while others said that family members tried to discourage them from adopting).

²⁴See, e.g., March, supra note 7, at 657; Sachdev, supra note 18, at 59 (relating one adoptee’s experience of having spent her “whole life living a lie” and another’s experience of...