The Role of Adoption in Winning Public Recognition for Adult Partnerships

• Author: June Carbone
• Position: Edward A. Smith/Missouri Professor of Law, the Constitution and Society, University of Missouri-Kansas City School of La
• Pages: 341-398

Page 341

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 Page 342 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 Page 343 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. Page 344

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 bonds that carry with them neither state approval nor condemnation.¹⁶This increased space for the creation of families of choice frames the role adoption is likely to play as one of a number of competing paths to recognition of parental status. Second, I will examine how assisted reproductive practices have developed from experimentation, to treatment for infertility, to the construction of families of choice, and how the changing role of assisted reproduction produces new challenges for the determination of parenthood. Third, I will describe the circumstances in which the state has historically intervened to supervise and sanction adoption. The role of adoption operates in tandem with the background law of parentage. Adoption succeeds in transferring recognition from one legal parent to another; it is less well designed to resolve uncertainty about who is a parent in the first place. Fourth, I will ask when and whether prospective parents are likely to want the sanction of the state that comes with adoption.

Finally, this Article concludes that adoption is most likely to be employed in the context of assisted reproduction, not to protect the interests of the child, but to secure recognition of otherwise unsanctioned adult relationships. In a polarized era of family values, the seemingly neutral arena of adoption may offer the best prospects for legal recognition of controversial relationships. The irony is that the most public of practices is most likely to be employed where its principal purpose is to advance the autonomy of adults, and to secure an otherwise unavailable zone of privacy. Page 345

I Family Privacy: Autonomy or Sanction?

The idea of family privacy has long had two, subtly different meanings, with dramatically different consequences for family law. Both treat intimate relationships as a protected arena. One, however, identifies family privacy with sanctioned relationships to establish a privileged sphere.¹⁷ Privacy in this context, which is ordinarily associated with married heterosexual relationships, accords presumptive legitimacy to the actions taken within the "sanctity" of marriage.¹⁸ The result, I have argued elsewhere, is an ex ante system of regulation that addresses issues like parentage within the parameters of authorized transactions, such as marriage or adoption.¹⁹ The other meaning of privacy suggests a right to be free from intrusion without necessarily implying approval or recognition.²⁰ Without advance approval, however, this produces an ex post system of family law; the legal determination of issues such as parentage remain uncertain until a dispute arises, and then are resolved on the basis of the facts.²¹ These differing meanings of privacy frame the likely evolution of parentage decisions in the context of assisted reproduction, and they underlie the Supreme Court analysis of the constitutional framework underlying state regulation.

Martha Fineman emphasizes that family privacy of any kind is a relatively recent construct.²² The historian Philippe Aris, for example, responded to the observation that the King of France was never alone by pointing out that no one in that era was ever alone.²³ Households included servants, and homes were built without hallways so that the passage from Page 346 one part of the house often went through the bedrooms.²⁴ English communities tied grazing rights to appropriate behavior, and French neighbors intervened to prevent drunken husbands from too badly beating their wives.²⁵ In the small towns and villages that characterized early modern Europe, the idea of separation from relatives, neighbors, and village elders did not exist.²⁶

Fineman associated the idea of family privacy with the ideology of separate spheres.²⁷ As the financial base of the urban middle class changed from farms and crafts to the professions and executive ranks, men and productive activity moved from the home into the market.²⁸ Nuclear families became more important than extended families, formal education produced greater payoffs for men, and women (both as mothers and as prospective brides) assumed greater responsibility as the moral guardians who policed sexuality until better-educated men were ready for marriage to well-raised virgins.²⁹ As these changes took hold, the nuclear family home became a sacred space, free from the pressures of the market and the intrusion of relatives, friends, and state.³⁰ It became associated with distinctive values and roles, and the actions taking place within it were entitled to deference.³¹ Recognition of such a sphere, as Fineman reminds Page 347 us, involved not only a right to be free from intrusion, but a right to invoke societal support.³² It also...