Person:

Bartholet, Elizabeth

Millions of infants and young children worldwide are desperately in need of nurturing homes. Many are living in institutions, and many on the streets, and almost all these children will either die in these situations, or if they survive, will emerge into adulthood so damaged by their childhood experience, and so deprived of parenting, educational and other essential childhood opportunities, that they will be unable to function in the worlds of family and work. International adoption could provide significant numbers of nurturing homes for these children. However current policy restricts international adoption, limiting its ability to provide such homes. Moreover most of the powerful organizations of the world that claim to represent children's rights and interests have joined with other forces opposing international adoption.

This article argues that effective child advocacy is a challenge, given the fact that infants and young children are unable to voice their views or promote their interests, and the related risks that adults will use children to further various adult agendas. True empathy is required to imagine what children would want were they able to think rationally and make informed decisions. But if we were to imagine homeless children capable of making such decisions, then it seems obvious that they would choose international adoption given the horrors of institutional and street life, and the limited options for any kind of adequate home care in their countries of birth. Opposition to international adoption cannot be justified based on any best interest of the child principle, despite the claims of many children's rights organizations. Instead it is grounded in a group of commonly shared but deeply flawed ideas about children and the role of the state, and driven by adult agendas that are not truly informed by children's interests.

It is exciting simply to be having this conference focused on adoption law and policy. I remember some nine years ago starting to plan a course dealing with adoption issues and wondering whether I would be able to justify its place in the Harvard Law School curriculum. It is also exciting to look around the room at the wonderfully diverse and knowledgeable group of people the Duke Journal of Gender Law & Policy gathered here to participate in these discussions of important issues involving adoption and the meaning of family. My topic today has to do with adoption and, more particularly, adoption in relation to reproduction. By reproduction I mean three different things: (1) traditional reproduction, or the production of a child through normal intercourse between one man and one woman; (2) infertility treatment, or the use of medical technology to assist a man and a woman to produce a child using his sperm and her egg and womb; and (3) a variety of child producing and parenting arrangements that I have collectively termed "technologic adoption." By the latter, I mean arrangements that result in the social equivalent of either step-parent adoptions or full adoptions, where the child is produced in order to be raised by one or more parents who will not be genetically or biologically related. I am referring to such practices as donor insemination, surrogacy, both in its "traditional" and gestational form, egg donation or sale, and embryo donation or sale. One thing I ...

Some twenty-five years ago a trial court in Virginia upheld the state ban on interracial marriage, reasoning that God created different races and, accordingly, that it was natural to maintain racial purity, and unnatural to engage in racial mixing. 1 At that time, many other state laws banned both interracial marriage and transracial adoption. In Loving v. Virginia, 2 the United States Supreme Court struck down the Virginia antimiscegenation law, reversing the trial court's decision and holding that it was unconstitutional for states to mandate racial separatism in the family. Later, in Palmore v. Sidoti, 3 the Court ruled that it was unconstitutional to transfer custody of a white child from mother to father solely because the mother was living with a black man. While the Court acknowledged that it might not be in the child's best interests to live in a transracial family, it held that the equal protection doctrine prevented consideration of the race of a potential parent in making custody decisions. In the 1960s and 1970s, the courts in this country outlawed formal state bans on transracial adoption, finding them similarly inconsistent with the equal protection doctrine. There has been a similar development in South Africa today, where the ban on transracial adoption has just recently been lifted as part of the move to abolish apartheid. But in the United States a strange thing happened in 1972. The National Black Social Workers Association (NABSW) issued a statement calling for a new ban on transracial adoption. Actually, ...

This article addresses the issue of Racial Disproportionality in child welfare - the disproportionate representation of black children in the foster care system as compared to their representation in the general population. This is now the hot issue in the child welfare world, with a powerful coalition of groups known as the Casey-CSSP Alliance claiming that Racial Disproportionality is the central problem that state and federal policy makers should address. This Alliance includes the foundations which provide virtually all the private funding available for research and advocacy in child welfare, joined by organizations and individuals who with these foundations have played a major role in shaping policy over the past decades. The Alliance takes the position that Racial Disproportionality results from discrimination by child welfare decision makers. It argues for reducing the number of black children removed to foster care to achieve what it terms "racial equity" - the removal of black children at the same rate as white children. The Alliance has already had significant impact. Child welfare leaders proclaim that this is the major issue of the day. Many states have accepted the Alliance's lead in analyzing the Racial Disproportionality problem and seeking solutions. Important federal officials and agencies have endorsed the Alliance's approach, as have leading private child welfare organizations.

This article analyzes the issues central to this important issue in the child welfare world. It urges that we must understand the nature of the Racial Disproportionality problem before jumping to solutions. If black children are removed to foster care at disproportionate rates because they are disproportionately victimized by serious parental maltreatment, then the Alliance's proposed solutions will put black children at risk. If disproportionate maltreatment of black children is the underlying problem, then solutions must lie in early prevention efforts, providing greater support to families at risk of falling into the kind of dysfunction that leads to maltreatment. Careful review of the evidence reveals that black children are indeed disproportionately victimized by parental maltreatment. This is to be expected given that black families are disproportionately characterized by the risk factors associated with maltreatment, including severe poverty, problematic substance abuse, and single parenting. Prevention programs with a proven record of success like intensive early home visitation for new parents can be expected to reduce maltreatment. This should in turn lead to a reduction in Racial Disproportionality, without putting black children at undue risk. To date there has been no adequate debate on the issues at the heart of the Racial Disproportionality problem, because the Casey - CSSP Alliance has overwhelmingly dominated the discourse. This article is designed to give policy makers a full understanding of the issues so that they can take action addressing Racial Disproportionality that will protect rather than endanger black children.

This paper looks at our new technological ability to determine genetic paternity, in the context of legal and social developments related to the family, and tries to come up with some guidelines for figuring out how to decide parentage in the modern era. Many claim that since DNA tests mean we can now easily tell who the genetic father is, we should make that man the legal father and release any other who might be playing that role from parental responsibility. However the trend in law over recent decades has been in the direction of reducing the role that biology plays in determining parentage, with the law giving increasing deference to existing social parenting relationships and to the intent to create such relationships as factors to take into account when parentage is contested. This paper assesses the importance of the genetic link to parenting, considers it in comparison to a variety of other factors relevant to parenting, and sets out some guiding principles for choosing among possible parents, principles designed to serve children's interests in stable, nurturing, parenting relationships.