TABLE OF CONTENTS 1. INTRODUCTION 161 II. ADOPTION GENEALOGIES 164 A. In the United States 165 1. The Indian Adoption Project 166 2. Placing Black Children with 170 White Families a. From the Colonies 170 through Reconstruction b. From the Civil Rights 171 Movement to the Adoption and Safe Families Act 3. Privatized Adoption 173 B. The Globalization of Adoption 174 1. Children in Crises 175 2. The Hague Convention 176 on Intercountry Adoption a. Community Claims 176 b. National Laws and 177 International Standards I!. HUMAN RIGHTS GENEALOGIES 179 A. A "struggle for the soul of the 179 human rights movement" 1. The Conventional Story 179 2. The New Revisionists 181 3. Does the Past Matter? 182 B. Human Rights and Intercountry Adoption 184 1. A Genealogy of Economic Rights 185 a. Beginning with Bismarck 185 b. Ending with the Cold War 186 c. Why Economic Rights Matter 187 in Intercountry Adoption 2. A Genealogy of Children's Rights 187 a. The Shift Away from 189 Welfarist Rights b. The Child's Right to Belong 189 III. NEOLIBERAL GENEALOGIES 190 A. Intellectual Origins 191 B. The Politics of Neoliberalism 192 C. The Great Recession and Global Capitalism 194 IV. WHEN GENEALOGY MATTERS 196 A. The Ubiquity (and Failure) of Neoliberalism 196 1. The Ubiquity of Neoliberalism 196 a. How Neoliberalism 197 Transmogrifies Human Rights b. How Neoliberalism 198 Transmogrifies Intercountry Adoption 2. Neoliberalism's Failure 200 B. The Decline of Intercountry Adoption 201 C. The Limits and the Stubborn Appeal 204 of Human Rights 1. The Limits of Human Rights 204 2. Their Stubborn Appeal 205 V. CONCLUSION: GENEALOGIES MATTER 208 I. INTRODUCTION
Genealogy isn't what it used to be. Once genealogy was the route to "legitimacy," whether literally--a "fillius nullius," a child of no one, (4) was illegitimate, a bastard--or more fancifully--a tastefully mounted family crest could be obtained for virtually any surname, for a price. (5) Or genealogy referred to the painstaking search for roots, the recovery of a personal history, the excavation of a trajectory that would give meaning to the present. (6)
But we are all legitimate now. (7) And DNA testing provides more information than anyone can process, including, for some, the refutation of cherished ancestral myths, (8) a good chance of developing a terrible disease, (9) and even Neanderthals in the family tree. (10) Genealogy is risky business. It remains a threshold issue in intercountry adoption, however, in which voluntary surrender by the birth parents is a prerequisite for a valid adoption. (11)
There are more babies and children in orphanages, so-called orphanages, on the street, on the market, or on their own than ever before. Yet intercountry adoptions have declined to levels not seen since the Hague Convention on Intercountry Adoption came into force. (12) Some see this as a tragedy. (13) Others view it as a positive development. Somewhat surprisingly, everyone seems willing to decide the matter by the same standard--"human rights" (14)--although there is less agreement as to what this means.
This reflects the ongoing "struggle for the soul of the human rights movement," as Professor Philip Alston describes it, which itself "is being waged in large part through the proxy of genealogy." (15) As Professor Wendy Brown shows, moreover, this struggle is playing out within an increasingly hegemonic neoliberalism that drives both the globalization of adoption and the backlash against it.
This Article traces the genealogies of intercountry adoption, human rights, and neoliberalism and explains how they converge. Part I examines adoption genealogies, noting that "stranger" adoption erases genealogy, eliminating the legal and social consequences of an illegitimate birth and giving the child a new legal identity. "Genealogy" here is not a scientific fact, a matter of DNA, but a social and legal construction. Part I begins with brief accounts of the "huge influx of children of color into the child welfare system" (16) in the United States and shows how domestic transracial adoption created the template for intercountry adoption. This Part then describes the globalization of adoption after World War II, including the paradox of "saving" children by sending them away, and the futility of erasing genealogy when it is as plain as the nose on a child's face, or the shape of her eyes, or the color of her skin.
Part II sets out the genealogies of the human rights that should govern adoption and explains why, for the most part, they do not. As Professors Alston and Jenny Martinez have explained, human rights demand a "polycentric" understanding. (17) There are multiple human rights instruments and multiple human rights movements, and they overlap and build on each other in complicated ways. These include a rich genealogy of children's rights as well as the story of a "world made new" after World War II. (18) The entire array of human rights has been challenged, however, its intricate networks sliced through in favor of a new pop-up conception of human rights that emerged "seemingly from nowhere" in the 1970s. (19)
Part III zooms out from the intimate scale of intercountry adoption, and the broader but still insistently human scale of human rights, to situate the preceding genealogies within the massive project of globalized neoliberalism. It tracks the genealogy of neoliberalism, from its intellectual origins in the Mont Pelerin Society, through the "gyrations and chaotic experiments" (20) of the Washington Consensus, up through the global recession and the shaky recovery.
Part IV explains when, and why, genealogy matters in these contexts. Genealogy matters, for example, when the Haitian orphans "rescued" after the earthquake turned out not to be orphans at all. (21) It matters when the affluence of the industrialized West is conflated with "human rights" to which all must aspire. (22) It matters in this time of unprecedented inequality, when, as Thomas Piketty has shown, birth predicts wealth as certainly as it did during the Gilded Age. (23) This Part concludes that genealogy matters now because it reminds us where we come from and how we got here, exposing "what currently remains hidden in plain sight," (24) as Professor Susan Marks puts it; that is, the runaway train of global capitalism, (25) which commodifies everything in its path, including babies and human rights. (26)
When parents cannot care for their infants, another member of the family or community usually steps up. According to historian Peter Conn, adoption is ancient, and, if not universal, well documented across time, (27) space, (28) and species. (29) But legal adoption by strangers, in which all ties to the family of origin are severed, is relatively rare and relatively recent. Although Conn cites examples of heirs selected by childless men of property, this practice was condemned by the Church and became virtually unknown in Europe. The importance of blood ties, and the maintenance of family registries, discouraged the adoption of babies or children throughout Asia, with the exception of India. In Muslim states, adoption was prohibited; orphans were the responsibility of relatives under kafalah. (30)
Modern adoption is an American invention. As Professor Barbara Melosh notes:
The emergence of modern adoption required a radically different understanding of family, one that overturned deeply held beliefs about blood and nurture, obligation and love, choice and chance. It was no accident that the United States was the crucible of this kind of adoption: in its repudiation of the past and its confidence in social engineering, adoption is quintessentially American. (31) Adoption is an evolving institution, changing over time as conceptions of childhood, the roles of nature and nurture, and the expectations of birth parents and adopting parents change. Like other American inventions, stranger adoption has been exported, with decidedly mixed results.
In the United States
Massachusetts was the first state to pass a comprehensive adoption law in 1851. (32) As David Papke explains, "With indentured servitude and apprenticeships no longer available for abandoned or orphaned children, adoption emerged as a viable alternative." (33) But legal adoption developed slowly and contentiously. Practices that epitomized enlightened care for poor children when they were instituted appall us now. Starting in the 1850s, over 250,000 children traveled on Orphan Trains from the crowded slums of the eastern cities to the "wholesome atmosphere" of Midwest and Western farms. It was hoped that they would acquire practical skills, while providing farmers with cheap labor. (34) In the early 1900s, adoption was often employed by zealous social workers to take children away from "backward" communities. (35)
By the middle of the twentieth century, the paradigm was matching children to their adoptive parents, to simulate the biological family. (36) The surrender and placement of the baby were managed by specialized social workers. Birth parents, especially mothers, were seen as beneficiaries of adoption. They were relieved of any responsibility for, or obligation to, the child. Rather, they got a "fresh start." (37)
As Professor Laura Briggs explains, however, this was "an intensely racialized story." (38) The following sections briefly describe the Indian Adoption Project and the placement of black children with white parents. In Native American communities and black communities, the state addressed desperate levels of child poverty--the result, at least in part, of long-term, systematic discrimination against the communities themselves--by removing children and babies from their homes. The children were placed with middle-class white families eager to adopt. This created a template for private "solutions" to a public problem, at little cost to the state.
The Indian Adoption Project
In 1881, Congress decided...