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Sunday, November 7, 2010

Reforming Adoption: Some Incomplete Thoughts

I’ve heard a lot recently about the need to reform adoption laws, and I strongly agree that it’s time to do this. There are a number of circumstances in which the rights of children and the rights of adult parents or caregivers are in conflict, and adoption, as we now manage it, appears to be one of the situations in which this problem is most evident.

As Ellen Herman shows at, it’s only since about 1850 that adoption laws and practices in the United States have focused on the needs and rights of children, and it’s much more recently that family relationships have become a matter of concern (as in some aspects of “the best interests of the child”). If we go back farther in time, we see that on the whole adoption practices were oriented toward assuring transmission of property and hereditary titles, or toward improving the adoptive parents’ income. Guardianship often hinged on this issue-- as in the frequent use by Gilbert and Sullivan of the concept of “wards in chancery”, heiresses whose guardians had the job of preventing them from being married for their money (though some of those guardians had the idea of marrying the girls themselves). Among poorer people, caring for “someone else’s child” often had the goal of rearing some farm help or collecting fees from the parish for doing this job.

As a result of this connection with property, much of adoption law was created in parallel with property laws. This parallel included absolute rights of possession; just as a car cannot belong simultaneously to the buyer and to the seller; an adopted child cannot legally speaking be simultaneously the child of the birth parents and the adoptive parents.

The equation of adoption with property rights may have worked well enough for its original purpose, which was property-oriented. Such laws may also have been adequate when adoption most often took place within a limited geographical area and within a limited group of people, although even then there were concerns about what was owed to an adopted child (see Jane Austen’s “Mansfield Park”, where there is discussion of the possible unfairness of bringing up a niece “as a lady” when she will not be able to inherit --- but, reader, she married him, so it was okay). However, we can hardly expect the same laws to be adequate for adoptions from thousands of miles away, from different cultures and language groups, with the mediation of government agencies rather than private contacts and decisions. Nor can we expect the same laws to work when most people expect caring for a child to cost them a good deal of money, rather than helping them accumulate property. In addition, I have no doubt that many readers will say those laws have had horrible effects, and no doubt they sometimes have-- I’m just trying to get at general reasons why, if once adequate, they are not adequate now.

It’s time to re-formulate the reasons for adoption and the ways law should protect all human rights as well as possible. Providing ways to mediate when rights of family members are in conflict would be part of this. I am by no means ready to suggest how this reformulation should be done, and I know that it will take a long time to do when it happens.

However, I would like to suggest a few things that could be accomplished without actual legislative changes, and which I think would be advantageous to adoptees, birth parents, and adoptive parents. I believe that it would be possible to make some of these improvements without legislation, but through education of judges, attorneys, and social workers, as well as potential and actual adoptive parents.

The first issue I have in mind has to do with large adoptive families and with circumstances in which adoptive parents accept more children from an institution than they had intended to adopt. “Mega-families”, especially those that include numerous at-risk children, are becoming known for an unusual frequency of child abuse and neglect. While there are a few adults who have the training and financial resources to take good care of a dozen or more children, some of whom have special needs, most of us cannot do this effectively. Yet these enormous groups are sentimentalized and romanticized by the press and by some caseworkers, whose attitudes influence adoptive parents. I do not suggest that legislation should forbid adoption of more than some small number of children, but I do suggest that social workers, adoption agencies, and child protective services staff should be extremely vigilant about insuring the health and safety of mega-adoptions. The idea that rearing children is “cheaper by the dozen” does not necessarily mean that it is safer by the dozen. Part of the task would involve caution about responses to whistleblowers (a visiting nurse who reported serious abuse in a Tennessee mega-family a few years ago was the focus of a lawsuit that was financially and personally potentially crippling).

A related second issue is increased caution by authorities about informal changes of adoptive homes and about the use of respite care. While normal family life in the United States can involve sleepovers of various kinds, or going to stay with a relative or friends for a few days or even weeks, there are adoptive families who go beyond the usual expectations by “dropping off” a child with others for convenience, perhaps to go on vacation or simply because they are tired of coping with the adoptee. In the case of the Tennessee family mentioned above, there were “dropped off” children living in the home whose legal guardians were unknown and for whom no legal transition had been made. A similar problem has to do with the use of “respite families”, often recommended by attachment therapists, to whom children are sent for the purpose of experiencing an austere and demanding environment that will motivate them to co-operate and be allowed to stay in the adoptive home. Respite care is certainly very legitimate when provided for handicapped children, for example by organizations like United Cerebral Palsy, which train people to do a few hours of care for children whose parents could not otherwise find qualified caregivers to use suction or monitor the eating of a child with oral problems. This is a very different matter from the “respite home” which is claimed to have a therapeutic goal, but which is not monitored in any usual sense. In these situations, adopted children and their families need the help of well-educated judges, attorneys, CPS workers, and caseworkers.

A third issue has to do with transfers of custody from one set of adoptive parents to another. More caution is needed in this area, and it would not require legislation to encourage it. In a case I was recently involved with, a child had been adopted from Russia at age 4. Her adoptive parents did not feel happy with her, sought unconventional therapy, and sent her to a respite home for periods of time. Eventually the respite family, in discussion with the adoptive parents and the therapists, decided that it would be better to have her adopted by the respite family-- and they did this, against the wishes of the child, who was 8 years old by that time. I’m talking here about legal adoption, not about an informal arrangement, so social workers and at least one judge were presumably in the picture. If this child had been with her birth parents, and they had relinquished her for adoption, essentially abandoning her, there would have been an impact in terms of their custody of other children in the home as well. In this case, there was no apparent investigation of the motives for this change or of the rest of the family situation. Once again, appropriate training and education of people involved in these decisions could make a great difference.

Finally, I want to make one simple suggestion, one that would contribute to the dignity and sense of continuity to be felt by adoptees. I suggest that we need a change in attitude about name changes connected with adoption. If a baby is only a few months old, a new given name might be selected, but I would propose one or both birth parent family names as middle names, with the adoptive family name added. If a child is old enough to recognize his or her given name (perhaps 6 months of age, ordinarily), the given name should not be changed, and family names should be kept if known. Certainly more than one change is out of the question, but the girl I mentioned in the last paragraph had her name changed both on her first adoption, at 4, and again by the second set of adoptive parents, at 8. I don’t argue against nick-names, but simply that children and adolescents who are establishing a sense of identity can benefit from knowing that the self at least has a consistent name. No one needs to wait for legislation to do this-- it’s a matter of individual attitudes and what they convey to the children and to others.

Yes, the laws need to change, but everyday practices can change much more quickly.


  1. Thank you very much. I appreciate your response. This is definitely a matter for coalition politics, so I'm happy if there are some points that can be agreed on among people who could be part of a coalition. J.M.

  2. All wonderful suggestions, and much needed. I have long been suspicious of "mega-families" of special needs kids. After a certain point they are more unsupervised group homes than a family in the usual sense.

    The informal swapping of kids in underground networks and respite homes needs to be regulated as well, including "re-homimg" of difficult adopted children advertised on the internet.

    Totally agree on the name change thing as well. One thing I am eternally grateful for is that my son's adoptive parents, for all their flaws, had the respect to let him keep his first name that he knew after his time in foster care. It is just wrong to change a name that a child knows as his own.