24. Adoption

Federal Law

There is great variety among states regarding adoption laws, perhaps due to the very personal nature of these laws. A long legal tradition did not surround family law, and as state governments began to take responsibility for regulating family relationships, they tended to develop very unique and regional variations on aspects of family law, including adoption. These variations spawned difficult legal conflicts as modern families grew more mobile, and these conflicts gave rise to the desire to standardize laws among the states into Model Acts and Uniform Laws. Although the need for adoption standardization is strong to date, only eight states have adopted the Uniform Adoption Act.

Any adult may adopt any other person with only minor logical restrictions. A married person must apply for adoption jointly with his or her spouse, for example, and, if the child in certain states is over the age of ten, twelve, or fourteen, the state will require his or her consent as well (except in Louisiana and Wisconsin, where the child’s consent is not required). “Objective” standards, like Hawaii’s requirement of a “proper” adopter, or Illinois’s “reputable” one, and Virginia’s “natural” one, also are present, as are specific requirements, for example, that the adopter be at least ten years older than the adoptee. Sometimes the adoptee must be a minor. In Florida homosexuals are, from the face of the statute, specifically excluded from adopting; it is unclear whether terms such as “proper,” “reputable,” or “natural” refer to a prospective parent’s sexual orientation.

In general, family laws are changing as society’s value system changes and is scrutinized. In the area of adoption, there is a growing trend to recognize the rights and opinions of children at younger ages, and to recognize the rights of non-traditional individuals. Indeed, same-sex couples are recognized as adoptive parents in a number of states. Also, some states appear headed in the direction of “open” adoption, whereby any individual may adopt any other individual for any reason.

Federal Law

Federal law has preempted the entire scope of the laws of adoption regarding Native Americans, provoking controversy over a non-Native American family’s ability to adopt a Native American. In 1991, when a member of the Aleut tribe had a baby out of wedlock, a non-Native couple living in Vancouver, British Columbia, adopted the child. The tribe sued for custody of the child and won the right to intervene in the adoption by claiming that they had a vital interest in preserving the child’s Indian heritage. The California court upheld the tribe’s right to intervene, but in the child’s interest let her remain with her adoptive parents because she had been living with them for nearly two years.

ADOPTION

A two-step judicial process in conformance to state statutory provisions in which the legal obligations and rights of a child toward the biological parentsare terminated and new rights and obligations are created between the child and the adoptive parents.

Adoption involves the creation of the parent-child relationship between individuals who are not naturally so related. The adopted child is given the rights, privileges, and duties of a child and heir by the adoptive family.

Since adoption was not recognized at common law, all adoption procedures in the United States are regulated by statute. Adoption statutes prescribe the conditions, manner, means, and consequences of adoption. In addition, they specify the rights and responsibilities of all parties involved.

De facto adoption is a voidable agreement to adopt a child, based on a statutory proceeding in a particular state, which becomes lawful when the petition to adopt is properly presented.

Equitable adoption, sometimes referred to as virtual adoption, is treated by the law as final for certain purposes in spite of the fact that it has not been formally executed. When adoption appears to comply with standards of fairness and justice, some states will grant a child the rights of one who has been adopted even though the adoption procedure is incomplete. An equitable adoption might be enforced by the court for the benefit of a child in order to determine inheritance rights, for example. Similarly, adoption by estoppel is the equitable adoption of a child by promises and acts that prevent the adoptive parents and their estates from denying the child adoptive status.

Who May Adopt

To be entitled to adopt a child, an individual must meet the qualifications under the laws of his or her state, since the state has sole power to determine who may become an adoptive parent. Unless otherwise provided by state statute, U.S. citizenship is not a prerequisite for adoption.

A child may be jointly adopted by a husband and wife. If not contrary to statutory provision, either may adopt without being joined by the other. Unmarried people may adopt unless prohibited by law.

A growing area of controversy by the courts is whether adoption by a child's grandparents is a viable alternative. Such adoption might be considered in the child's best interests if the natural parents die or if the custodial parent is found unfit. A legal guardian may adopt a child but is not ordinarily given preference in the court proceedings.

The best interests of the child are of paramount importance in policy considerations toward adoption. Although legislative policy prefers such conditions as adoption by people of the same religion as the prospective adoptee, an interfaith adoption is allowed when it does not adversely affect the welfare of the child.

Elements in determining who will be suitable adoptive parents include race, religion, economic status, home environment, age, and health. Most of these criteria are taken into consideration in placements by agencies or in private placements where state law requires that adoptive parents be investigated.

Who May Be Adopted

Since the status of an adopted person is regulated by state statutes that authorize the adoption, state law determines whether an individual is a proper candidate for adoption. In addition, to be subject to adoption in a particular state, the individual must be living within that state.

Children may be adopted in situations where their natural parents are living, dead, or unknown, or where they have been abandoned. An adoption will not be prevented by the fact that a child has a legal guardian.

Some statutes expressly limit adoption to minors, and others expressly provide for adoption of adults. The adoption of adults is regarded by statutes and the courts in a manner similar to the adoption of children. Practically, however, the adoption of adults differs greatly, since it serves different purposes and creates few of the difficulties arising out of the adoption of children. In most cases, the purpose of adult adoption is to facilitate a device for inheritance. One may designate an heir by adopting an adult. Generally, the adoptee would not otherwise be entitled to inherit but for the adoption.

Social Considerations

In the past, adoption was viewed primarily as a means for a childless married couple to "normalize" their relationship. The focus has switched, however; now, adoption is ordinarily seen as an institution that exists to help place children into improved environments.

A number of states have, in recent years, enacted statutes that permit subsidization of adoptions. The adoption procedure thereby became a social instrument for the improvement of the lives of underprivileged children. Subsidized adoption tends to encourage adoption of children by suitable individuals who would otherwise be unable to afford it. This type of adoption has a significant effect upon placement of children labeled hard-to-place. Such children, who are frequently either physically or mentally handicapped, might have no other alternative except protracted institutionalization.

State law may require that the adopting parent have custody of a child for a certain period before obtaining an adoption decree. This requirement is designed to prevent premature action and to establish whether the best interests of the child will be furthered by the adoption.

Transracial Adoption The issue of transracial adoption (adoption of children who are not the same race as the adoptive parents) has come under close scrutiny by courts, legislatures, and the public. Americans are sharply divided on this issue. Is it a positive way to create stable families for needy children and well-meaning adults? Or is it an insidious means of co-opting members of racial minorities and confusing their sense of identity?

In 1972, when the number of African American children adopted annually by white families rose to fifteen thousand, the National Association of Black Social Workers (NABSW) issued its opinion on the subject. Igniting a furious national debate that continued in the mid-1990s, the association equated transracial adoption with cultural genocide for African Americans.

The NABSW and other minority groups opposed to the adoption of African American children by whites claim that the children are deprived of a true appreciation and understanding of their culture. Their childhood is skewed toward white values and assimilation. Without a sense of racial identity and pride, these children cannot truly belong to the African American community; yet, by the same token, racism prevents their full inclusion in the white world.

Despite these arguments, some African Americans applaud the unconditional love and permanence offered by transracial adoptions. Transracial adoption supporters argue that it is much worse to grow up without any family at all than to be placed with parents of a different race. Because a disproportionate number of African American children are placed in foster care, mixed-race adoptions may be necessary to ensure permanent homes for some African American children. Transracial adoption may also be viewed as an opportunity to achieve integration on the most basic level.

Controversies involving transracial adoption soon found their way to the courts. In 1992, the Minnesota Supreme Court upheld a district court's order to transfer a three-year-old African American girl from her suburban Minneapolis foster home to her maternal grandparents' home in Virginia (In re Welfare of D. L., 486 N.W.2d 375 [Minn. 1992]). Referred to as Baby D in court records, the child had been raised since birth by white foster parents who had been married for twenty-four years and had already raised three grown children. Baby D's birth mother placed her in foster care almost immediately after delivery and had not seen the child since. When no relatives could be found to claim the child, the foster parents decided to adopt the girl, whom they had grown to love.

When Baby D's grandparents learned that their daughter had delivered a baby, they set out to find their grandchild and to obtain custody. (The couple was already raising their daughter's three other children.) When the foster parents' petition to adopt Baby D surfaced, the grandparents vigorously opposed it.

The Minnesota Minority Heritage Preservation Act mandated a preference for placing children with relatives and adoptive parents of the same race (Minn. Stat. Ann. § 259.57(2)). An intermediate appeals court and the Minnesota Supreme Court agreed with the lower court that under the law, the Virginia grandparents must be granted custody. Despite the white foster parents' argument that they had provided security and loving care for the child, the grandparents' claim to Baby D was superior. Although many African Americans applauded the decision, some critics questioned the constitutionality of a law favoring same-race adoption.

A similar case in Lexington, Texas, produced a different result in 1995. Two foster parents, Scott Mullen and Lou Ann Mullen, who are white and Native American, respectively, applied to adopt two African American boys in their care. Initially, social workers for the Texas Department of Protective and Regulatory Services denied the Mullens' request, stating that departmental policy required them to seek adoptive parents of the same race as the children.

A civil liberties group called the Institute for Justice filed suit against the department on behalf of the Mullens. The institute also filed suits in other states, arguing that adoption decisions based on race are unconstitutional. The Texas department reconsidered and allowed the Mullens to adopt the boys despite race differences.

Another statute affecting transracial adoptions is the indian child welfare act of 1978 (25 U.S.C.A. § 1901 et seq.) (ICWA), a federal law giving special preference to family and tribal adoptions of Native American children. Prior to its enactment, nearly one quarter of all Native American children were removed from their parents' care and placed in foster care, through which some were adopted. ICWA's sponsors argued that the adoption of Native American children by white parents was not necessarily in the children's best interests and was unquestionably harmful to tribal membership. The law was intended to preserve Native American culture and to support an Indian child-rearing philosophy that relies heavily upon the extended family.

Under the 1978 law, tribes have jurisdiction over the proposed adoption of any Native American child living on a reservation. Extended families or tribal placements are given automatic priority over all other applicants.

Another law covering transracial adoptions is the Multiethnic Placement Act of 1994 (42U.S.C.A. §§ 622, 5115a, 5115a note). Sponsored by Senator Howard M. Metzenbaum (D-Ohio), the law prevents federally assisted child welfare agencies from screening prospective adoptive parents on the basis of race, color, or national origin. Although agencies may still consider the cultural or racial identity of children when making permanent placements, the law is intended to prevent discrimination and to speed the adoption process. The intention of the law is to give thousands of minority foster children who are eligible for adoption a greater chance of finding permanent homes.

Same Sex Adoption Several states have laws on the books that permit second-parent adoptions by same-sex couples, including Connecticut, the District of Columbia, Illinois, Massachusetts, New York, New Jersey, and Vermont. In 18 other states, trial courts have granted second-parent adoptions to same-sex couples. In other words, these states do not have laws permitting adoptions statewide, but adoptions may be granted in county family courts on a case-by-case basis. These states are Alabama, Alaska, California, Delaware, Georgia, Hawaii, Indiana, Iowa, Louisiana, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Texas, and Washington. In states where there is no statewide law permitting second-parent adoptions, the odds of a trial court granting an adoption vary from county to county. Many of the courts that approve these adoptions are located in metropolitan areas where judges may be more liberal than their rural counterparts.

While the majority of states do not specifically prohibit gays and lesbians from adopting children, three states prohibit the practice. Florida's law is considered the nation's toughest, because it prohibits adoptions not only by gay couples, but also by gay individuals. In 2000, an Arkansas law was passed which prohibited gays and lesbians from becoming foster parents. Mississippi also has legislation barring gay couples from adopting children. The ACLU is challenging that law.

Consent

Virtually all statutes make parental consent to adoption an indispensable condition. Most statutes set forth detailed requirements for the form and procedure of such consent. Ordinarily, statutes dispense with the parental consent requirement only when a parent has reached a serious level of unfitness that would be so significant as to terminate parental rights, or when such rights have already been judicially terminated.

In addition to parental consent, most states require a child to consent to the adoption if the child has reached a certain age, generally between ten and fourteen years.

The increasing number of divorces has resulted in deemphasis of the necessity of consent to adoption by noncustodial parents, the purpose being to ease integration of children of a former marriage into the family created by a subsequent marriage. Some statutes allow adoption without the consent of the noncustodial parent if that parent has been unable to or has failed to contribute to the support of a child for a certain period of time. Courts are more inclined to find abandonment—a common ground for termination of parental rights—in cases involving noncustodial divorced parents.

Unmarried Father's Consent Historically, if a child was illegitimate, most jurisdictions required only the consent of the child's natural mother to the adoption of the child. The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption.

In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979). The key issue was whether the consent of an unwed biological father need be obtained before an adoption could be finalized.

In Caban, a mother of illegitimate children and her husband filed a petition for adoption. The children's natural father filed a cross petition to adopt. The New York Surrogate's Court granted the mother's petition, and the natural father appealed. The decision was affirmed by the Supreme Court, Appellate Division, and subsequently affirmed by the New York Court of Appeals.

On appeal, the U.S. Supreme Court ruled that a law depriving all unwed fathers of the right to decide against adoption, whether or not they actually took care of the children in question, was unconstitutional and a form of sex discrimination. The unwed father in Caban had lived with the mother of the children for five years prior to the birth of the children. The Court held that he had the right to block their adoption by a man who subsequently married the mother.

Consents that are signed by the parents either immediately before or after the birth of the child may be particularly subject to challenge by the natural mother. Owing to the mother's weakened physical and mental condition, findings of involuntary consent frequently have been handed down in such cases.

A parent can forfeit the right to give or deny consent for the adoption of his or her child in certain instances. Abandonment, the nonperformance of the natural obligations of caring for the child, including support, is one such case. The parent and child will ordinarily be kept together by the courts when the parent exhibits a continuing interest in the child's welfare.

A finding of abandonment may terminate a parent's rights and free the child for adoption with or without parental consent. A parent's rights may also be severed in cases of serious child abuse or neglect. Some statutes provide that a noncustodial parent cannot veto an adoption; however, that parent is generally entitled to be heard when a court considers the case. This is particularly true when the parent has established some kind of family tie with the child, either by having been married to, or having lived with, the custodial parent or by taking the child into his or her home.

State law may require that if a child has been placed in the custody of an agency, the agency's consent is a prerequisite for an adoption. Similarly, consent of a guardian having custody of a child is necessary. The consent of the natural mother's parents may also be required if she is under eighteen years of age and unwed.

Invalid Consent If coercion or deception plays any part in the decision to terminate parental rights, the birth parent's consent may be ruled invalid. In the wake of the highly publicized battle over "Baby Jessica," it appears that regardless of the length of time or quality of a child's placement, the consent rights of the birth parents outweigh the best interests of the child.

In an agonizing case that divided the adoption community, Michigan couple Roberta DeBoers and Jan DeBoers lost custody in 1993 of Jessica, the two-and-a-half-year-old child they had raised from birth (In re Clausen, 442 Mich. 648, 502 N.W.2d 649 [1993]). Courts in both Iowa and Michigan concluded that the necessary consent by Iowa birth parents Cara Schmidt and Daniel Schmidt was flawed. After a protracted legal battle, Jessica was ordered to return to Iowa to live with her biological parents.

Shortly after Jessica's birth on February 8, 1991, the DeBoers filed a petition in Iowa juvenile court to adopt her. The couple, who for ten years had tried to conceive or adopt a child, were named her temporary guardians and custodians. When Jessica was less than four weeks old, however, birth mother Cara Clausen sued to have her maternal rights restored. The birth father, Dan Schmidt, also sought custody.

Unmarried at the time, Clausen had signed a release-custody form, terminating her parental rights, approximately forty hours after giving birth to Jessica. (Iowa law requires a seventy- two-hour waiting period before waiving parental rights.) The man Clausen identified as the child's father—not Schmidt—also signed a release form. Seventeen days later, Clausen informed Schmidt that she had lied on the release form and that Schmidt was actually the father.

On March 6, 1991, Clausen sought to revoke the custody agreement, naming Schmidt as the child's father. Upon learning that he was the baby's father, Schmidt filed an affidavit of paternity and asked for a court intervention to prevent the adoption proceedings. Clausen and Schmidt were married shortly thereafter.

The district court and subsequent courts determined that Dan Schmidt was indeed the biological father and that he had not agreed to have his parental rights terminated. Because he had not abandoned the baby, it was not clearly in the best interests of Jessica to remain with the DeBoers. Also, the parental rights waiver signed by Cara Schmidt was invalid because the statutorily imposed waiting period had not been observed. Therefore, early in the legal skirmish, the court ordered the baby returned to the Schmidts.

The DeBoers continued to fight Jessica's removal from their custody. With the legal maneuvering and delays, the case stretched out over a twenty-nine-month period. By the end, the DeBoers had developed a close bond with Jessica, even though they knew from the time Jessica was an infant that their claim to her might not hold up in court. But with the passage of time, the DeBoers could make a powerful claim that Jessica needed them more than the Schmidts. After all, they were the only parents she knew. The DeBoers argued that it was in Jessica's best interests to remain with them, or she could face possible emotional and psychological damage.

After Iowa courts refused to change position on the custody, the DeBoers took their case to Michigan, hoping that the best-interests-of-the-child argument would be persuasive. However, Michigan courts also agreed that Jessica should be returned to her Iowa birth parents. She was delivered to the Schmidts on August 2, 1993, and renamed Anna.

Methods of Adoption

There are several types of adoption placement procedures. Foreign adoptions are affected by the policies and procedures of the adoptees' countries. Agency placement and independent placement are governed by statute, as is adoption by contract or by deed. Some people adopt through illegal purchase of a child or arrange to have a child by a surrogate mother.

Foreign Adoption Because of the scarcity of healthy babies for adoption in the United States, many U.S. citizens are pursuing adoption of orphaned and abandoned babies from foreign countries.

Most U.S. parents with children in foster care do not relinquish their parental rights. Foster children in the U.S. may also be difficult to place because many are older and carry the emotional scars of physical or sexual abuse.

Since the 1950s, U.S. couples have adopted thousands of Korean children. The number of Korean adoptions is declining, however, reportedly because the Korean government is uncomfortable with its reputation as a baby exporter. On the other hand, children from South America are being adopted in greater numbers by U.S. citizens, as are children from China, Romania, and Russia. In these countries, poverty, natural disasters, abandonment, war, and collapsed governments have resulted in an increased population of needy children.

Each country has different adoption policies regarding the age, income level, and marital status of prospective parents. Often, foreign adoptions are handled privately. Countries may allow children to be escorted to the United States or may require adoptive parents to come and stay for days or even months to complete the adoption paperwork. The costs of adoption also vary from nation to nation.

Agency Placement In agency placement of a child, the arrangements are made by a licensed public or private agency. Such agencies exist solely for the placement of children, and part of their responsibility involves a thorough investigation of the suitability of the potential adoptive parents. Such an investigation is ordinarily quite detailed and takes into consideration the background of both child and prospective parents.

Statutes generally provide for agencies that are operated or licensed by the government to act in an intermediary role between natural and adoptive parents. The method by which a child is transferred to an adoption or placement agency is by the execution of a formal surrender agreement that the natural parents sign. By surrendering a child to an agency, the parent relinquishes all rights to the child. The agency is then given complete authority to arrange for adoption. In arranging for an adoption, agencies must take into consideration such issues as whether a particular child is a proper subject for adoption, whether the proposed home is a suitable one, and whether the adoption is in the child's best interests.

Agency placement has three basic advantages: (1) It minimizes such risks as the adoption of nonhealthy children, the discovery of the adoptive parents' identity by the natural mother, and the natural mother's changing her mind about the adoption. (2) The suitability of adoptive parents is determined by a stringent investigation, which minimizes the risk that a child will be adopted by unfit parents. (3) Adoption through an agency minimizes fees incidental to the adoption.

One essential disadvantage of agency placement is that it involves a long, detailed process. The adoptive parents might be forced to wait for many months while they are being investigated as to their suitability. A second disadvantage of agency placement is that only a limited number of children are available for adoption through agencies.

Independent Placement In independent placement, or private adoption, a child is directly transferred from the natural mother, or her representative, to the parents seeking to adopt. This type of placement is ordinarily arranged by the natural mother's family or doctor. Generally, neither the natural nor the adoptive parents are thoroughly investigated. The adoptive parents often arrange to pay all medical bills incidental to the pregnancy and birth, in addition to legal expenses. Private adoptions are lawful in most states.

Like agency placement, independent placement has both advantages and disadvantages. Private placement facilitates the adoption of a child by parents who might otherwise be forced to endure an extended waiting period or who might be unable to find a child through agency channels because of stringent requirements or mere nonavailability of adoptable children. As with all adoptions, there is an inherent risk that the natural mother might change her mind and never complete the adoption procedure. With some private adoptions, the natural mother remains anonymous. With others, her identity is known to the adoptive parents at the outset.

Independent placement aids mothers who do not have financial resources, by arranging for the payment of medical expenses by the adoptive parents. Such a procedure can, however, lead to a black market if not carefully monitored.

Other disadvantages of private placements are the risks of adoption of an unhealthy child or of nonsuitability of the adoptive parents.

Some states prohibit lawyers from obtaining babies for adoption by clients under any circumstances. Attorneys, however, are ordinarily permitted to accept fees for handling the legal aspects of adoption.

Surrogate Motherhood During the 1980s, many infertile couples turned to surrogate motherhood as an alternative to traditional adoption. A surrogate mother was paid a fee to bear a child conceived through artificial insemination. Once the child was born, the surrogate mother agreed to terminate her parental rights in favor of the sperm donor, typically the husband of the woman unable to have children. For public policy reasons, paid surrogate motherhood has been denounced as an unacceptable means of buying and selling babies.

The wrenching "Baby M" case proved to be the ultimate downfall of surrogate motherhood contracts. In in re baby m, 109 N.J. 396, 537A.2d 1227 (1988), Mary Beth Whitehead entered a written agreement to bear the child of William Stern, whose wife, Elizabeth Stern, was unable to have children. Whitehead was to be paid $10,000 for her services. When the baby girl was born in 1985, Whitehead refused to give her up and fled with the infant to Florida. Four months later, she was apprehended by authorities, who gave the baby over to the Sterns.

Despite Whitehead's efforts to regain the child, the New Jersey Superior Court stripped her of parental and visitation rights and allowed the Sterns to adopt the baby, whom they had named Melissa. The decision had little to do with adoption policy but centered primarily on contract enforcement. The court ruled that Whitehead was obligated to honor her contract with the Sterns.

The New Jersey Supreme Court reversed the lower-court decision, declaring that surrogate motherhood contracts are unenforceable because they violate public policy. The Sterns were allowed to maintain custody of Baby M, although the adoption was voided and some of Whitehead's parental and visitation rights were restored. After the decision, most states passed legislation to prohibit surrogate motherhood contracts altogether.

Adoption by Contract or Agreement Generally, an adoptive relationship cannot be formed by private contract, either express or implied. Although adoption contracts are not usually considered to be injurious to public welfare, they are discouraged on the basis of the principle that a parent should not be permitted to trade away his or her child.

A court may, however, choose to treat a contract of adoption as an agreement to be enforced, with the outcome being equivalent to a formal adoption. The courts have upheld contracts between parents and institutions. In addition, in a number of states, an adoption contract between a natural parent and an institution that provides that the parent is not to be informed of the child's location is enforceable.

Since courts are not eager to deprive natural parents of the right to care for a child, adoption contracts are not enforced when they are in conflict with the welfare of the child. Some states provide that a contract made by one parent alone, absent a showing of clear consent by the other, is not valid. The procedure for adoption by a written declaration or deed is permitted in some states. Ordinarily, it must be properly recorded before the adoption will be valid.

Revocation A court will allow an agreement for the adoption of a child to be broken by a natural parent if the circumstances warrant it, such as when a parent was forced into an adoption agreement.

The court has discretion over whether to permit revocation of an adoption agreement. In such cases, the court will scrutinize the circumstances under which the parent gave consent as well as the parent's reasons for revoking the contract.

Consequences of Adoption

Adoption ordinarily terminates the rights and responsibilities of the natural parents to the child. The death of an adoptive parent does not restore the rights of the natural parents.

Adoption creates the same rights and responsibilities between a child and adoptive parents as existed between natural parent and child. An adopted child is entitled to the same rights as a natural child. When an adult is adopted, however, the adoptive parent does not assume the usual duty of support.

State law governs whether or not the name of a child will be affected by adoption. When a minor child is adopted, his or her legal residence is changed from that of the natural parent to that of the adoptive parent.

Inheritance A state legislature has the authority to impart or remove inheritance rights of adopted children or adoptive parents. Statutes usually provide that adopted children can inherit from adoptive parents in the same capacity as natural children and, conversely, adoptive parents can inherit the property of an adopted child who predeceases them.

Revocation of Adoption

If an adoption decree is acquired by fraud, it may be revoked. In addition, in the absence of the requisite consent of all concerned parties, an order of adoption is void. After a decree is revoked, a child assumes the status she or he had prior to the adoption proceedings.

Summary of Adoption Procedure

The formal steps in adoption of a child are generally uniform in all states.

Notice Notice of adoption proceedings is given to all parties who have a legal interest in the case except the child. In the case of illegitimacy, both natural parents should be given notice if they can be located.

Some statutes provide that a parent who has failed to support a child is not entitled to notice. Ordinarily, a parent who has lost custody of a child in a divorce or separation case is, however, entitled to notice. Similarly, an adoption agency that has custody of the child is entitled to notice.

Petition The parents seeking to adopt must file a petition in court that supplies information about their situation as well as the situation of the child. The filing of a proper petition is ordinarily a prerequisite to the court's jurisdiction.

The petition indicates the names of the adoptive parents, the child, and the natural parents, if known. In addition, the child's gender and age are stated, and some states mandate that a medical report on the child must also accompany the petition. An example of such a petition is found on page 98.

Consent Written consent of the adoption agency or the child's natural parents accompanies the petition for adoption. Consent of the natural parents is not required if their parental rights have been involuntarily terminated as a result, for example, of abandonment or abuse of the child.

Hearing A hearing is held so that the court may examine the qualifications of the prospective parents and either grant or deny the petition. There must be an opportunity for the parties to present testimony and to examine witnesses at such a hearing.

Adoption proceedings are confidential, so the hearing is conducted in a closed courtroom.

Ordinarily, the records of an adoption hearing are available for inspection only by court order. Confidentiality is thought to promote a sense of security for the child with his or her new family.

Probation Most states require a period of probation in adoption proceedings. During this period, the child lives with the adoptive parents, and the appropriate state agency monitors the development of the relationship. The agency's prime concern is the ability of the adoptive parents to properly care for the child. If the relationship is working well for all concerned parties, the state agency will request that the court issue a permanent decree of adoption.

If the relationship is unsatisfactory, the child is either returned to his or her previous home or is taken care of by the state.

Decree An adoption decree is a judgment of the court and is given the same force and effect as any other judgment.

Birth Certificate Following the adoption proceedings, a certificate of adoption is issued for the adopted child, to replace the birth certificate. It lists the new family name, the date and place of the child's birth, and the ages of the adoptive parents at the time the child was born.

Generally, the certificate of adoption does not indicate the names of the child's natural parents or the date and place of adoption. A child may never know that he or she was adopted unless the adoptive parents reveal the information, since the old birth certificate is sealed away and may be opened only by court order.

Right to Information on Natural Parents

Ordinarily, all information concerning an adopted child's origins is sealed, in compliance with the court adoption proceedings, to facilitate development of a relationship between the adoptive parents and child free from the natural parents' influence.

Most state statutes deny adoptees access to records that disclose information about the natural parents. Often, the natural parents make their consent to the adoption contingent upon the condition that no information about them should ever be revealed.

In recent times, because of a growing public interest in tracing ethnic and family backgrounds, many adoptees, as adults, have been calling for the right to obtain access to sealed adoption records.

The adult adoptees recognize that a disclosure of this kind of information could be traumatic to minor adoptees, but they contend that lack of access could cause serious psychological trauma to them as adults. In addition, they cite medical problems or misdiagnoses that could be caused by absence of genetic history, lack of religious identity, and fear of unwitting incest.

Adult adoptees contend that most adoption statutes do not make a distinction between adoptees as minors and later as adults, which causes the adults to be deprived of the right to trace their background. In addition, the adults allege that they have been denied equal protection of law because their status precludes them from receiving medical information readily available to nonadoptees.

Various approaches are being used to resolve this problem. One approach involves the enactment of a legislative requirement that public and private adoption agencies be required to open their records upon request to adults who were adopted as children, with certain limitations. For example, if the child had been placed by the natural parents prior to the effective date of the legislation, the natural parents could prevent the adoptee from seeing the records.

The issue of right to access to adoption records by adoptees when they reach adulthood also encompasses the legal consideration of the natural parents' right to privacy, which could be violated if free access to sealed court records were given to adult adoptees. The adult adoptees' right to know must be balanced against their natural parents' right to privacy. The way to achieve such a balance, however, has never been clearly determined.

In September, 1999, Tennessee's Supreme Court overturned the Tennessee Court of Appeals ruling in Doe v. Sundquist, 2 S.W.3d 919 (Tenn., Sep 27, 1999) (NO. 01-S-01-9901-CV00006), which challenged a law passed in 1995 that unsealed both adoption records and original birth certificates to adult adoptees. Earlier, the 6th Circuit Court of Appeals had ruled in favor of the state and opined, much to the dismay of sealed records advocates: "A birth is simultaneously an intimate occasion and a public event—the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth," Doe v. Sundquist, 106 F.3d 702, 65 USLW 2527, 1997 Fed.App. 0051P (6th Cir.(Tenn.) Feb 11, 1997) (NO. 96-6197). The U.S. Supreme Court, however, elected not to hear the Tennessee case.

further readings

Carp, E. Wayne, ed. 2002. Adoption in America: Historical Perspectives. Ann Arbor: Univ. of Michigan Press.

DuPrau, Jeanne. 1990. Adoption. Englewood Cliffs, N.J.: Messner.

Marshner, Connaught, ed. 1999. Adoption Factbook III. Washington, D.C.: National Council for Adoption.

Melosh, Barbara. 2002. Strangers and Kin: The American Way of Adoption. Cambridge, Mass.: Harvard Univ. Press.

Rundberg, Gayle D. 1988. How to Get Babies through Private Adoption. Bend, Ore.: Maverick.

Sloan, Irving J. 1988. The Law of Adoption and Surrogate Parenting. London: Oceana.

cross-references

Child Custody; Child Support; Children's Rights; Family Law; Illegitimacy; Infants; Parent and Child; Surrogate Motherhood.

ADOPTION

Adoption is an institution as old as civilization. It may be defined as a social transaction through which a person belonging by birth to one family or kinship group acquires, through legal means, a new family or new kinship ties.

Historical Background

In its broadest sense, the term "adoption" may be used to describe the taking in, nurturing, and rearing of biologically unrelated children in need of protection and care. The terms "adoption" and "fostering" are used interchangeably in some countries, but in the United States adoption, in contrast to temporary foster arrangements, is a legal and permanent transaction.

Shaped by the laws and cultures of each society, adoption was seldom concerned primarily with rescuing abandoned children but rather with the transfer of a child or adult from one set of parents to another in order to ensure property rights or family continuity. Yet the perception of adoption has always wavered between the legal fiction that a child is reborn into the adoptive family and the folk belief that blood is thicker than water. The Egyptians and the Hebrews practiced adoption; the Old Testament chronicles the story of Moses, who was adopted by the daughter of the Pharaoh but later returned to his people and led them out of bondage.

Roman law, the foundation of institutionalized legal adoption, was concerned primarily with property and inheritance rights but permitted birth parents to reclaim their abandoned children if they paid expenses incurred by the adoptive parents (Boswell). The Code of Napoleon, enacted in 1804, which was the beginning of modern adoption legislation and is still a major influence in French and Latin American law, allowed adoptees to have knowledge of family background and the option to retain their original name. The modern French government social security system provides for both "simple" (open) adoption and "complete" (closed) adoption.

English common law, the basis for U.S. law, stressed blood lineage and did not legalize stranger adoption, the total legal transfer of the child to nonrelatives, until 1926. Until then, a form of apprenticeship existed in which children lived with and worked under the master training them. Orphans were sent as indentured servants to the American colonies to help with the labor shortage. Economic considerations superseded any concern for the welfare of the individual child.

From the mid-nineteenth century until the beginning of the twentieth century, New York City street urchins were routinely rounded up and loaded into boxcars on "orphan trains" that carried them to "God-fearing" farm families in the West. There were no legal contracts or protections for the children who, once severed from their families, were regarded as orphans and forced into a life of domestic or manual labor thousands of miles away.

The transition from apprenticeship and indenture to present-day adoption was gradual in the United States, but by 1929 every state had some form of statutory adoption. Licensed adoption agencies established in the 1920s investigated prospective adoptive families to try to ensure the wellbeing of adopted children. Adoption records were open, but in the late 1930s a few states began to close them.

After World War II, U.S. adoption shifted its focus from the needs of homeless children to the desires of infertile couples to adopt healthy white newborns. Adoption became the means for the childless to create a family. As state after state closed their records, the adopted child's birth certificate was sealed and replaced with an amended document that named the adoptive parents as the birth parents. The original intent was to spare the child the stigma of illegitimacy, not to cut him or her off from the birth heritage. Over the years the rationale of protecting the confidentiality of the birth mother was added, but an even greater concern was the protection of the adoptive parents, who feared the birth parents might reappear to reclaim their biological, though no longer legal, child. By 2003 all but six states had sealed records.

Adoption Practice in the United States in the Mid- to Late Twentieth Century

The social upheavals of the 1960s and 1970s had a major impact on adoption practice. The legalization of abortion, along with the widespread use of contraceptives and the increased tendency of unmarried mothers to keep their children, led to a shortage of white, adoptable newborns. At the same time, there was a rise in infertility among couples who delayed having children.

The states regulate adoption practice; most states permit both independent and agency adoption. As the shortage of white, adoptable babies grew more acute, adoption became a commercial enterprise. Lawyers and "baby brokers" took over most infant adoptions from the agencies, frequently using newspaper advertisements to entice pregnant women and couples to give up their children with offers of money and other benefits.

Without regulation by the child-welfare field, there is little protection for the baby and both sets of parents. Prospective adopters may spend a great deal of money for medical, living, and legal costs only to have the pregnant woman change her mind and keep the baby or choose another family. Conversely, a birth mother who has been promised open communication with the adoptive parents and the child may find herself cut off once the adoption is finalized. Or the birth mother may break her promise to stay in touch with the family if she finds visits too difficult to continue. Safeguards for the baby are lacking when the investigation of the family by an agency occurs after the infant is already in the home and petition has been filed for legal adoption.

Special Needs and Biracial Adoption

In the 1990s adoption agencies, both private and public, focused primarily on finding families for "hard to place" children, a category that includes older children, sibling groups, disabled children, and biracial or minority-racial children. The U.S. Department of Human Services estimated in 1998 that 520,000 children lived in foster care in the United States, a sizable increase from 1992. About 110,000 children were reported to be legally free for adoption. Many child-welfare specialists believe that if sufficient effort were expended, homes could be found for them. Some states offer subsidies to families who are willing to adopt and raise disabled children. Single persons and gay and lesbian couples, not generally approved for newborn babies, are often considered acceptable for placement of children who otherwise might not find permanent homes. This remains a controversial issue in some parts of the United States, as a number of individuals and groups question the ability of these nontraditional adoptive parents to raise healthy, normal children.

In 1972 the National Association of Black Social Workers (NABSW) launched a campaign against allowing white families to adopt black or biracial children. The NABSW called this practice genocide. They maintained that, with enough effort and focus, black families could be found for these children. Proponents of interracial adoption argue that the benefits children gain from having permanent and loving homes outweigh the social and psychological difficulties they may face because of society's prejudice toward mixed-race families. Mental-health professionals generally agree that permanency, whether with legal adoption or long-term placement, is a paramount need for all children; they believe that growing up without roots and a stable home is a primary cause of lifelong problems. Many child advocates prefer that a child be placed with his or her extended family or within his or her community of race or religion, but accept the fact that biracial placement is preferable to no permanency as long as the families are sensitive to biracial issues and seek integrated communities in which to raise their children.

Adoption of Native American children is a related and equally controversial issue. Many Native Americans believe that adoption by Caucasians robs them of their children and robs the children of their native heritage. When Congress enacted the Indian Child Welfare Act of 1978, giving tribal courts exclusive jurisdiction over adoption proceedings involving Native American children, each tribe developed its own guidelines concerning the Native American lineage a child needed to qualify as a member. Children identified as members of a particular tribe must be placed for adoption with a family of that tribe.

Intercountry Adoption

The shortage of desirable adoptable babies in the United States has led many who wish to adopt to seek children in other countries. The first international adoptions generally involved Amerasian children, that is, those fathered by GIs in Japan during and after World War II, in Korea during and after the Korean War, and in Vietnam during the U.S. involvement there. These adoptions were first sponsored by church groups and then by licensed adoption agencies (Lifton, 1994).

Since the middle of the 1980s, international adoption has shifted from the rescue of war orphans to the legal or (in some cases) illegal trafficking of children. Most of the children are drawn from Korea, China, Russia, Eastern Europe, and Latin America because these countries have made the emigration of children more accessible. Human-rights organizations report that many children are taken away from their families without formal relinquishments (Mantaphon). Studies of intercountry adoptions suggest that children cut off from their own culture and transplanted into a totally foreign environment may be more vulnerable to emotional problems (Verhulst et al., 1990a, 1990b). Many have difficulty in attaching to their new family or feeling part of the community, where they may not find full acceptance because of racial differences.

The 1989 U.N. Convention on the Rights of the Child addressed the rights of the adopted child along with the rights of all children. According to the convention, each child has a right to receive a name, to acquire a nationality, and, as far as possible, to know and be cared for by his or her parents. A child placed outside of his or her family of origin has the right to maintain contact with his or her birth parents.

The Sealed-Record Controversy

For over half a century, closed adoption (i.e., with sealed records) was viewed by U.S. society as beneficial to everyone: The homeless child born out of wedlock was given a second chance in a new family, the infertile couple was able to become "real" parents, and the birth mother was free to go on with her life as if she had never had a child. Yet research conducted since the mid-1970s has consistently indicated that the secrecy in the closed-adoption system can often create lifelong psychological problems for everyone involved (Sorosky et al.).

Although adopted children comprise less than 5 percent of the population, the percentage of adopted children in mental-health facilities and residential treatment centers has been reported to be as high as 30 percent. Some researchers have found that adopted children score lower in academic achievement and social skills than the nonadopted, have a high incidence of learning disabilities, and display behavior characterized as impulsive, aggressive, and antisocial (Schecter et al.; Brodzinsky and Schecter; Brinich). Psychotherapists have postulated that an adopted child's perception of rejection and abandonment by the birth mother can cause low self-esteem. Ignorance of origins ("genealogical bewilderment") can lead a child to rebellion against the adoptive parents and society, and eventually to delinquency (Wellisch; Sants; Kirschner and Nagel).

Women who relinquish their infants often suffer a profound loss and experience lifelong difficulties. Like the child, they are encouraged by society to deny and repress the feelings that accompanied giving up their children for adoption. Some studies indicate that these women never forgive themselves. Some may feel they have no right to a happy marriage and other children, while others may try without success to have other children as replacements for the one that they relinquished (Deykin et al.; Millen and Roll).

The closed-adoption system also encourages adoptive parents to deny their grief at not being able to produce a child that will carry on their lineage. They are expected to conceal their unresolved conflicts over infertility as they pretend that adopting a child is the same as giving birth (Blum). Adoptive parents who are able to acknowledge the differences between an adoptive and birth family, instead of denying them, have been shown to have better communication and closer relationships with their children (Kirk).

The closed-adoption system tends to pit the right of the adopted child to know the identity of his or her birth parents against the right of the birth mother to confidentiality, and against the right of the adoptive parents to maintain exclusive parental roles. The National Council for Adoption (NCFA), a lobbying organization representing traditional adoption agencies, contends that sealed records protect the privacy of the birth mother, who was promised confidentiality (Caplan). A national birth-parent group, Concerned United Birth Parents (CUB), argues that the majority of birth mothers did not ask for confidentiality and in fact want to have knowledge of or some contact with the children they gave birth to. Until 1976, birth fathers had no rights, only responsibilities. At that time, the U.S. Supreme Court gave birth fathers equal right of consent with birth mothers in adoption arrangements.

Search and Reunion

One of the effects of the civil-rights movement of the 1960s was the emergence of an adoption-reform movement led by adult adoptees. Its rallying cry was that the civil rights of the adopted had been violated when their original birth records were sealed, denying them access to information available to nonadopted people. Adoption support groups have been established across the United States to provide emotional support, lobby for open records, and facilitate the search for birth parents.

Some states, rather than open their previously sealed adoption records, have established "reunion registries" that will connect adoptees with their birth parents if both register and indicate their mutual desire. In other jurisdictions, there is an intermediary system, in which the court, or an adoption agency is empowered to search for the birth mother if an adoptee requests a reunion. The birth mother retains the right of refusal of contact. Adopted activists believe that both registries and intermediaries violate their right to information and the ability to make direct contact with birth relatives.

More adopted women search for their birth parents than adopted men. The quest to find the birth mother is usually stronger than the need to locate the birth father. Adoptees tend to begin their search when they become aware of formerly repressed feelings that often surface at times of life transitions, such as impending marriage, parenthood, or death of adoptive parents (Sorosky et al.; Lifton, 1988).

The secrets inherent in the closed-adoption system make reunion difficult for both birth mother and adoptee. To return to each other is to return to their earlier traumas. The adoptee experiences grief, anger, and divided loyalties; the birth mother relives the unresolved sadness, guilt, and humiliation she felt at the time of pregnancy, birth, and relinquishment (Lifton, 1994).

No matter whom adoptees find—a loving, a withholding, or even a deceased parent—the opportunity to heal arises when they can integrate the past with the present. Adoptees' relationship to their adoptive parents is usually strengthened once they have resolved their identity issues. Reality replaces their fantasies, and they are able to recognize the important role of their adoptive parents (Gonyo and Watson; Sorosky et al.; Lifton, 1994). Birth parents also enter a healing process after reunion because they have the opportunity to explain to their child why they relinquished him or her and to forgive themselves and be forgiven (Gediman and Brown).

Some adoptees and birth parents develop close, ongoing kinship ties. Others maintain a more distant relationship that may involve little more than exchanging holiday cards. A few, after one or two meetings, close off contact. Whatever follows the reunion, however, the individuals involved have been able to take control of this important aspect of their lives.

Open versus Closed Adoption

Since the early 1980s there has been a trend toward openness in adoption. In the placement of older children, good adoption practice dictates providing each child with a "life book" that has information and photographs about their history. Often these children are encouraged to maintain contact with the previous foster mother and with relatives, such as grandparents, in the extended birth family.

In infant adoption, a birth mother may choose the parents for her baby, but completely open arrangements—where there is an ongoing relationship between birth and adoptive families—are still rare. Semi-open adoption is more usual. It may vary from little more than a single meeting between the birth mother and adoptive parents, with no disclosure of names or discussion of future contact, to annual exchanges of photographs and information and the promise of more contact when the child grows up (McRoy et al.). Professionals describe open-adoption arrangements as a process in which all parties move at their own pace over the years (Silber and Dorner).

Opponents of open adoption argue that it makes it difficult for the birth mother to accept that she has given up a child, that it hinders adoptive parents in forming secure ties with an infant, and that it deprives the child of a sense of permanence with the adoptive family (Caplan). Proponents of open adoption believe that birth mothers who take an active part in the placement process can resolve their guilt and grief about giving up their baby; that it obviates adoptive parents' fantasies about the child's background because they have facts; that it permits adopted children to know that their birth parents are real persons, not ghosts; and that they were not given up because there was something wrong with them (Silber and Dorner).

Court Battles between Birth Parents and Adoptive Parents

Since the mid-1980s the number of contested adoption cases has multiplied. Many have been brought by birth mothers (and increasingly by birth fathers) who feel that they did not receive proper counseling or enough time, or were coerced into signing relinquishment papers. When the birth mother seeks the return of the child, lawyers for the adoptive parents may delay action in order to prolong the child's presence in the adoptive home. The longer that period, the stronger the argument that it is in the best interests of the child to stay in the only home he or she has ever known. Adoptive-parent lobbies seek to limit the time that birth parents may have to revoke their consent or relinquishment. There is also a strong movement to develop uniform state laws that would limit the problems of inter-state placements and decrease the legal conflicts of different jurisdictions.

Conclusion

The adoption field is betwixt and between stasis and change. The records remain sealed in most states, but the traditional closed system is gradually giving way to a more open one that allows birth parents and adoptive parents to meet and even maintain contact over the years for the sake of the child.

Adoption practice is no longer exclusively concerned with healthy white newborns. Adoptees include transracial and biracial children and older handicapped children with special needs. Standards for adoptive parents, once modeled on white, middle-class, heterosexual couples, have changed to include single parents, homosexual couples, and minority and biracial couples of any age.

Uniform state laws are necessary to regulate adoption practice, but there is much disagreement about the relative importance of birth-parent versus adoptive parent rights. The term "best interests of the child" has come to mean whatever people want it to mean. Prospective adoptive parents and birth parents find themselves in adversarial roles where their own best interests may conflict with the best interests of the child.

Adoption-reform activists believe it is in the best interests of the child to have adoption practice limited to nonprofit agencies and child-welfare specialists. They stress the need for adequate legal and psychological counseling for both birth parents and adoptive parents before and after the birth of the baby and especially before finalizing relinquishment plans.

Reformers would like to see adoption records unsealed so that adopted children can integrate their dual heritage and avoid many of the psychological problems that are caused by secrecy. They advocate a nationwide program that would promote sex education, pregnancy prevention, family preservation, and legally enforced open-adoption arrangements when relinquishment and placement are necessary.

POSTSCRIPT

Twenty-First Century Adoption Practices

During the late 1990s, laws erasing the secrecy and anonymity of the last century of adoption practice have been enacted in a number of states. Adopted adults are gaining access to their original birth certificates through legislative acts and voter referendums, despite the fact that there is still resistance to opening adoption records in most states. However, even in states where the records remain sealed, there has been an increase in reunions between birth parents and adoptees relinquished in infancy or childhood.

The Internet has revolutionized the adoption field. Searches for identifying information have become easier than in previous decades due to the nation's fascination with genealogy and the growth of databases on the Internet. Potential adopters and pregnant women considering relinquishment are also using the Internet to make contact. Families with special-needs children can turn to a variety of websites, help lines, chat rooms, and referral sources. There are also special websites on international adoption that lay out the unique problems one can encounter in the various countries where children are available.

The lucrative business of adoption in the marketplace continues to grow as attorneys, private agencies, and intermediaries use the Internet for networking in both domestic and international placements. International adoption is increasing as the number of adoptable healthy newborn Caucasian infants born in the United States decreases. Most women, married or single, choose to raise, rather than relinquish, their babies. Potential adoptive couples fear that even those women who initially choose to relinquish their babies will change their minds, or that the birth father will challenge the legality of the adoption. The publicity around and pain caused by contested adoptions has resulted in the introduction of new codes and procedures in many states to act as safeguards.

At the same time, open arrangements between birth and adoptive families in the United States are becoming the accepted practice with both infants and older children. The degree of openness varies and may be modified over the years, but all parties generally have identifying knowledge of each other. Agencies and other adoption practitioners can no longer offer guarantees of confidentiality or anonymity. In fact, many agencies offer post-adoption services in which they act as intermediaries in reunions, conduct support groups, and do counseling with all members of the triad.

By the beginning of the twenty-first century, private and public adoption agencies served different communities. The private agency or practitioner deals primarily with Caucasian infants born in the United States and with international adoptions of infants and toddlers. Public agencies, connected to the welfare system, place special-needs children. These children are usually older, part of a sibling group, non-Caucasian, racially mixed, or with medical or developmental problems. The federal government has enacted special programs, with financial incentives to local public agencies, to increase the numbers of children moving from foster home placement into permanent or adoptive homes. In both public and private agencies, there is greater acceptance of adoptions by single persons and gay and lesbian couples.

Those couples or individuals who prefer international adoption discover that the availability of children and the cost involved shifts from country to country, depending on political, economic, and legal issues. Regulations in the United States as well as in the country of the child's origin and in international umbrella agencies all contribute to the complicated procedures facing those applying to adopt. Nevertheless, a growing number of children are adopted through these routes. Those who choose international adoption to avoid the risk of legal challenges or interference from the birth parents overlook the psychological need of adopted children to know their heritage. Many young adults adopted from Asia, Europe, and South America have returned to seek their biological families in an attempt to resolve their ethnic, racial, and cultural identity.

Another revolutionary development in the adoption field is its connection with alternative reproductive techniques. Adult children who have learned they were conceived by donor insemination have organized a world wide movement, still small in number, to gain the right to have identifying information about their fathers. They refer to themselves as "in utero adoptees." Their initiative has brought about a growing acceptance of the right to access of identifying information in both egg and sperm donations. The American Adoption Congress recognizes donor offspring as adoptees, and advocates opening their records, as well as promoting future openness in all alternative family building methods. Embryo adoptions are being seriously considered as an alternative, due to the surplus of fertilized embryos no longer needed by couples. Rather than defrost and destroy them, a few agencies are encouraging donation of these embryos to infertile couples.

Researchers have not yet determined what the psychological effects will be on children born to parents to whom they are not genetically related when they learn of their high tech origins. One thing is certain: that they will ask the same question that legions of adoptees since Oedipus have struggled with: "Who Am I?"

annette baran

betty jean lifton (1995)

revised by authors

SEE ALSO: Abortion; Children: History of Childhood; Embryo and Fetus: Religious Perspectives; Infanticide; International Health; Natural Law; Sexism

BIBLIOGRAPHY

Baran, Annette, and Pannor, Reuben. 1990. "Open Adoption." In The Psychology of Adoption, ed. by David M. Brodzinsky and Marshall D. Schechter. New York: Oxford University Press.

Blum, Harold P. 1983. "Adoptive Parents: Generative Conflict and Generational Continuity." Psychoanalytic Study of the Child 38: 141–163.

Boswell, John. 1988. The Kindness of Strangers: The Abandonment of Children in Western Europe from Late Antiquity to the Renaissance. New York: Pantheon.

Bowlby, John. 1982. Attachment and Loss, 2nd edition. New York: Basic Books.

Brinich, Paul. 1989. "Psychoanalytic Psychotherapy with Adoptees." Paper presented at the 36th Annual Meeting of the American Academy of Child and Adolescent Psychiatry, New York, October 13.

Brodzinsky, David M., and Schechter, Marshall D. 1992. Being Adopted: The Lifelong Search for Self. New York: Doubleday.

Caplan, Lincoln. 1990. An Open Adoption. New York: Farrar Straus Giroux.

Deykin, Eva Y; Campbell, Lee; and Patti, Patricia. 1984. "The Postadoption Experience of Surrendering Parents." American Journal of Orthopsychiatry 54(2): 271–280.

Erikson, Erik H. 1980. Identity and the Life Cycle: Selected Papers. New York: W. W. Norton.

Gaylord, C. Lester. 1976. "The Adoptive Child's Right to Know." Case and Comment 81(2): 38–44.

Gediman, Judith S., and Brown, Linda P. 1989. Birthbond: Reunions between Birthparents and Adoptees—What Happens After. Far Hills, NJ: New Horizon.

Gonyo, Barbara, and Watson, Kenneth W. 1988. "Searching in Adoption." Public Welfare 46(1): 14–22.

Kingsolver, Barbara. 1993. Pigs in Heaven: A Novel. New York: HarperCollins.

Kirk, H. David. 1964. Shared Fate: A Theory of Adoption and Mental Health. New York: Free Press.

Kirschner, David, and Nagel, Linda S. 1988. "Antisocial Behavior in Adoptees: Patterns and Dynamics." Child and Adolescent Social Work 5(4): 300–314.

Lifton, Betty Jean. 1988. Lost and Found: The Adoption Experience. New York: Perennial Library.

Lifton, Betty Jean. 1994. Journey of the Adopted Self: A Quest for Wholeness. New York: Basic Books.

Mantaphon, Withit. 1993. "Sale of Children: Report." Geneva: U.N. Economic and Social Council.

McKenzie, Judith K. 1993. "Adoption of Children with Special Needs." Future of Children 3(1): 62–76.

McRoy, Ruth G.; Grotevant, Harold D.; and White, Kerry L. 1988. Openness in Adoption: New Practices, New Issues. New York: Praeger.

Millen, Leverett, and Roll, Samuel. 1985. "Solomon's Mothers: A Special Case of Pathological Bereavement." American Journal of Orthopsychiatry 55(3): 411–418.

Rynearson, Edward K. 1982. "Relinquishment and Its Maternal Complications: A Preliminary Study." American Journal of Psychiatry 139(3): 338–340.

Sants, H. J. 1964. "Genealogical Bewilderment in Children with Substitute Parents." British Journal of Medical Psychology 37: 131–141.

Schecter, Marshall D.; Carlson, Paul V.; Simmons, James Q., III; and Work, Henry H. 1964. "Emotional Problems in the Adoptee." Archives of General Psychiatry 10(2): 109–118.

Silber, Kathleen, and Dorner, Patricia. 1990. Children of Open Adoption and Their Families. San Antonio, TX: Corona.

Sorosky, Arthur D.; Baran, Annette; and Pannor, Reuben. 1978. The Adoption Triangle: The Effects of the Sealed Record on Adoptees, Birth Parents, and Adoptive Parents. New York: Anchor.

Verhulst, Frank C.; Althaus, Monika; and Versluis-Den Bieman, Herma J. 1990a. "Problem Behavior in International Adoptees: I. An Epidemiological Study." Journal of the American Academy of Child and Adolescent Psychiatry 29(1): 94–103.

Verhulst, Frank C.; Althaus, Monika; and Versluis-Den Bieman, Herma J. 1990b. "Problem Behavior in International Adoptees:II. Age of Placement." Journal of the American Academy of Child and Adolescent Psychiatry 29(1): 104–111.

Wellisch, Erich. 1952. "Children without Genealogy: A Problem of Adoption." Mental Health 13: 41–42.

Winnicott, Donald W. 1955. "Adopted Children in Adolescence." In Report of the Residential Conference Held at Roehampton, July 8–11, 1953, pp. 33–41. Roehampton, Eng.: A. Rampton.

ADOPTION

ADOPTION , taking another's child as one's own.

Alleged Cases of Adoption in the Bible

The evidence for adoption in the Bible is so equivocal that some have denied it was practiced in the biblical period.

(a) genesis 15:2–3. Being childless, Abram complains that *Eliezer, his servant, will be his heir. Since in the ancient Near East only relatives, normally sons, could inherit, Abram had probably adopted, or contemplated adopting, Eliezer. This passage is illuminated by the ancient Near Eastern practice of childless couples adopting a son, sometimes a slave, to serve them in their lifetime and bury and mourn them when they die, in return for which the adopted son is designated their heir. If a natural child should subsequently be born to the couple, he would be chief heir and the adopted son would be second to him.

(b) genesis 16:2 and 30:3. Because of their barrenness, Sarai and Rachel give their servant girls to Abram and Jacob as concubines, hoping to "have children" (lit. "be built up") through the concubines. These words are taken as an expression of intention to adopt the children born of the husbands and concubines. Rachel's subsequent statement, "God… has given me a son" (30:6) seems to favor this view. A marriage contract from *Nuzi stipulates that in a similar case the mistress "shall have authority over the offspring." That the sons of Jacob's concubines share in his estate is said to presuppose their adoption. Bilhah's giving birth on (or perhaps "onto") Rachel's knees (30:3; cf. 50:23) is believed to be an adoption ceremony similar to one practiced by ancient European and Asiatic peoples among whom placing a child on a man's knees signified variously acknowledgment, legitimation, and adoption. Such an adoption by a mistress of the offspring of her husband and her slave-girl would not be unparalleled in the ancient Near East (see J. van Seters, jbl, 87 (1968), 404–7), but other considerations argue that this did not, in fact, take place in the episodes under consideration. Elsewhere in the Bible the sons of Bilhah and Zilpah are viewed only as the sons of these concubines, never of the mistresses (e.g., 21:10, 13; 33:2, 6–7; 35:23–26). Rachel's statement "God… has given me a son" reflects not necessarily adoption but Rachel's ownership of the child's mother, Bilhah (cf. Ex. 21:4, and especially the later Aramaic usage in Pritchard, Texts³, 548a plus n. 5). The concubines' sons sharing in Jacob's estate does not presuppose adoption by Rachel and Leah because the sons are Jacob's by blood and require only his recognition to inherit (cf. The Code of Hammurapi, 170–1). Finally the alleged adoption ceremony must be interpreted otherwise. Placing a child on the knees is known from elsewhere in the ancient Near East (see I.J. Gelb et al., The Chicago Assyrian Dictionary, vol. 2 (1965), 256, s.v. birku; H. Hoffner, jnes, 27 (1968), 199–201). Outside of cases which signify divine protection and/or nursing, but not adoption (cf. T. Jacobsen, jnes, 2 (1943), 119–21), the knees upon which the child is placed are almost always those of its natural parent or grandparent. It seems to signify nothing more than affectionate play or welcoming into the family, sometimes combined with naming. (Only once, in the Hurrian Tale of the Cow and the Fisherman (J. Friedrich, Zeitschrift fuer Assyriologie, 49 (1950), 232–3 ll. 38 ff.), does placing on the lap occur in an apparently adoptive context, but even there it is not clear that the ceremony is part of the adoption.) Some construe the ceremony as an act of legitimation, but no legal significance of any sort is immediately apparent. Significantly, the one unequivocal adoption ceremony in the Bible (Gen. 48:5–6) does not involve placing the child on the knees (Gen. 48:12 is from a different document and simply reflects the children's position during Jacob's embrace, between, not on, his knees). Furthermore, Genesis 30:3 speaks not of placing but of giving birth on Rachel's knees. This more likely reflects the position taken in antiquity by a woman during childbirth, straddling the knees of an attendant (another woman or at times her own husband) upon whose knees the emerging child was received (cf. perhaps Job 3:12). Perhaps Rachel attended Bilhah herself in order to cure, in a sympathetic-magical way, her own infertility (cf. 30:18, which may imply that Rachel, too, had been aiming ultimately at her own fertility), much like the practice of barren Arab women in modern times of being present at other women's deliveries. Genesis 50:23 (see below) must imply Joseph's assistance at his great-grandchildren's birth; or, if taken to mean simply that the children were placed upon his knees immediately after birth, it would imply a sort of welcoming or naming ceremony.

(c) genesis 29–31. It is widely held that Jacob was adopted by the originally sonless Laban, on the analogy of a Nuzi contract in which a sonless man adopts a son, makes him his heir, and gives him his daughter as a wife. This in itself is not compelling, but the document adds that, unless sons are later born to the adopter, the adopted son will also inherit his household gods. This passage, it is argued, illuminates Rachel's theft of Laban's household gods (31:19), and herein lies the strength of the adoption theory. But M. Greenberg (jbl, 81 (1962), 239–48) cast doubt upon the supposed explanation of Rachel's theft, thus depriving the adoption theory of its most convincing feature. In addition, the Bible itself not only fails to speak of adoption but pictures Jacob as Laban's employee.

(d) genesis 48:5–6. Near the end of his life Jacob, recalling God's promise of Canaan for his descendants, announces to Joseph: "Your two sons who were born to you … before I came to you in Egypt, shall be mine; Ephraim and Manasseh shall be mine, as Reuben and Simeon are"; subsequent sons of Joseph will (according to the most common interpretation of the difficult v. 6), for the purposes of inheritance, be reckoned as sons of Ephraim and Manasseh. In view of the context – note particularly that grandsons, not outsiders, are involved – many believe that this adoption involves inheritance alone, and is not an adoption in the full sense. (M. David compares the classical adoptio mortis causa.) This belief is strengthened by the almost unanimous view that this episode is intended etiologically to explain why the descendants of Joseph held, in historical times, two tribal allotments, the territories of Ephraim and Manasseh.

(e) genesis 50:23. "The children of Machir son of Manasseh were likewise born on Joseph's knees" is said to reflect an adoption ceremony. To the objections listed above (b), it may be added that unlike (d), Joseph's adoption of Machir's children would explain nothing in Israel's later history and would be etiologically pointless.

(f) exodus 2:10. "Moses became her [= Pharaoh's daughter's] son." Some, however, interpret this as fosterage.

(g) leviticus 18:9. A "sister… born outside the household" could mean an adopted sister, but most commentators interpret it as an illegitimate sister or one born of another marriage of the mother.

(h) judges 11:1ff. S. Feigin argued that Gilead must have adopted Jephthah or else the question of his inheriting could never have arisen. But since Jephthah was already Gilead's son, the passage implies, at most, legitimation, not adoption.

(i) ruth 4:16–17. Naomi's placing of the child of Ruth and Boaz in her bosom and the neighbors' declaration "a son is born to Naomi" are said to imply adoption by Naomi. But the very purpose of Ruth's marriage to Boaz was, from the legal viewpoint, to engender a son who would be accounted to Ruth's dead husband (see Deut. 25:6 and Gen. 38:8–9) and bear his name (Ruth 4:10). Adoption by Naomi, even though she was the deceased's mother, would frustrate that purpose. The text says that Naomi became the child's nurse, not his mother. The child is legally Naomi's grandson and the neighbors' words are best taken as referring to this.

(j) esther 2:7, 15. Mordecai adopted his orphaned cousin Hadassah. (This case, too, is taken by some as rather one of fosterage.) This possible case of adoption among Jews living under Persian rule is paralleled by a case among the Jews living in the Persian military garrison at Elephantine, Egypt, in the fifth century c.e. (E. Kraeling, The Brooklyn Museum Aramaic Papyri (1953), no. 8).

(k) ezra 2:61 (= Nehemiah 7:63). One or more priests married descendants of Barzillai the Gileadite and "were called by their name." This may imply adoption into the family of Barzillai.

(l) ezra 10:44. Several Israelites married foreign women. The second half of the verse, unintelligible as it stands, ends with "and they placed/established children." S. Feigin, on the basis of similar Greek expressions and textual emendation, viewed this as a case of adoption. Since the passage is obviously corrupt (the Greek text of Esdras reads differently), no conclusions can be drawn from it, though Feigin's interpretation is not necessarily ruled out.

(m) i chronicles 2:35–41. Since the slave Jarha (approximately a contemporary of David according to the genealogy) married his master's daughter, he was certainly manumitted and, quite likely, was adopted by his master; otherwise, his descendants would not have been listed in the Judahite genealogy.

(n) In addition to the above possible cases, one might see a sort of posthumous adoption in the ascription of the first son born of the levirate marriage (Gen. 38:8–9; Deut. 25:6; Ruth 4) to the dead brother. The child is possibly to be called "A son of b [the deceased]"; in this way he preserves the deceased's name (Deut. 25:6–7; Ruth 4:5) and presumably inherits his property.

summary

Of the most plausible cases above, two (a, d) are from the Patriarchal period, one reflects Egyptian practice (f), and another the practice of Persian Jews of the Exilic or post-Exilic period (j). From the pre-Exilic period there is a possible case alleged by the Chronicler to have taken place in the time of David (m), one or two other remotely possible cases (g) and (k), the latter from the late pre-Exilic or Exilic period) and the "posthumous adoption" involved in levirate marriage (n). The evidence for adoption in the pre-Exilic period is thus meager. The possibility that adoption was practiced in this period cannot be excluded, especially since contemporary legal documents are lacking. Nevertheless, it seems that if adoption played any role at all in Israelite family institutions, it was an insignificant one. It may be that the tribal consciousness of the Israelites did not favor the creation of artificial family ties and that the practice of polygamy obviated some of the need for adoption. For the post-Exilic per-iod in Palestine there is no reliable evidence for adoption at all.

Adoption as a Metaphor

(a) god and israel. The relationship between God and Israel is often likened to that of father and son (Ex. 4:22; Deut. 8:5; 14:1). Usually there is no indication that this is meant in an adoptive sense, but this may be the sense of Jeremiah 3:19; 31:8; and Hosea 11:1. (b) in kingship. The idea that the king is the son of a god occurs in Canaanite (Pritchard, Texts, 147–8) and other ancient Near Eastern sources. In Israel – which borrowed the very institution of kingship from its neighbors (i Sam. 8:5, 20) – this idea could not be accepted literally; biblical references to the king as God's son therefore seem intended in an adoptive sense. Several are reminiscent of ancient Near Eastern adoption contracts. Thus, Psalms 2:7–8 contains a declaration, "You are my son," a typical date formula "this day" (the next phrase, "I have born you," may reflect the conception of adoption as a new birth), and a promise of inheritance (an empire); ii Samuel 17:7 contains a promise of inheritance (an enduring dynasty), a declaration of adoption, and a statement of the father's right to discipline the adoptive son (cf. Ps. 89:27 ff.; i Chron. 17:13; 22:10; 28:6).

Since the divine adoption of kings was not known in the ancient Near East, and the very institution of adoption was rare – if at all existent – in Israel, the question arises as to where the model for these metaphors was found. According to M. Weinfeld (jaos, 90 (1970)) the answer is found in the covenants made by God with David and Israel. These are essentially covenants of grant, a legal form which is widespread in the ancient Near East. In some of these a donor adopts the donee and the grant takes the form of an inheritance. Thus in the biblical metaphor God's adoption of David serves as the legal basis for the grant of the dynasty and empire, and God's adoption of Israel underlies the grant of a land (Jer. 3:19; also noted by S. Paul). According to Y. Muffs, the pattern of the covenant in the Priestly Document (p) is modeled on adoption by redemption from slavery (cf. Ex. 6:6–8). In later times adoption was used metaphorically in the Pauline epistles to refer variously to Israel's election (Rom. 9:4), to the believers who were redeemed from spiritual bondage by Jesus (Rom. 8:15; Eph. 1:5; Gal. 4:5), and to the final eschatological redemption from bondage (Rom. 8:21–23). Whether Paul modeled the metaphor on biblical or post-biblical, ancient Near Eastern, or Roman legal sources is debated.

[Jeffrey Howard Tigay]

Later Jewish Law

Adoption is not known as a legal institution in Jewish law. According to halakhah the personal status of parent and child is based on the natural family relationship only and there is no recognized way of creating this status artificially by a legal act or fiction. However, Jewish law does provide for consequences essentially similar to those caused by adoption to be created by legal means. These consequences are the right and obligation of a person to assume responsibility for (a) a child's physical and mental welfare and (b) his financial position, including matters of inheritance and maintenance. The legal means of achieving this result are (1) by the appointment of the adopter as a "guardian" (see *Apotropos) of the child, with exclusive authority to care for the latter's personal welfare, including his upbringing, education, and determination of his place of abode; and (2) by entrusting the administration of the child's property to the adopter. The latter undertaking to be accountable to the child and, at his own expense and without any right of recourse, would assume all such financial obligations as are imposed by law on natural parents vis-à-vis their children. Thus, the child is for all practical purposes placed in the same position toward his adoptors as he would otherwise be toward his natural parents, since all matters of education, maintenance, upbringing, and financial administration are taken care of (Ket. 101b; Maim., Yad, Ishut, 23:17–18; and Sh. Ar., eh 114 and Tur ibid., Sh. Ar., Ḥm 60:2–5; 207:20–21; pdr, 3 (n.d.), 109–125). On the death of the adopter, his heirs would be obliged to continue to maintain the "adopted" child out of the former's estate, the said undertaking having created a legal debt to be satisfied as any other debt (Sh. Ar., Ḥm 60:4).

Indeed, in principle neither the rights of the child toward his natural parents, nor their obligations toward him are in any way affected by the method of "adoption" described above; but in fact, the result approximated very closely to what is generally understood as adoption in the full sense of the word. The primary question in matters of adoption is the extent to which the natural parents are to be deprived of, and the adoptive parents vested with, the rights and obligations to look after the child's welfare. This is in accordance with the rule that determined that in all matters concerning a child, his welfare and interests are the overriding considerations always to be regarded as decisive (Responsa Rashba, attributed to Naḥmanides, 38; Responsa Radbaz, 1:123; Responsa Samuel di Modena, eh 123; Sh. Ar., eh 82, Pitḥei Teshuvah 7).

Even without private adoption, the court, as the "father of all orphans," has the power to order the removal of a child from his parents' custody, if this is considered necessary for his welfare (see *Apotropos). So far as his pecuniary rights are concerned, the child, by virtue of his adopters' legal undertakings toward him, acquires an additional debtor, since his natural parents are not released from their own obligations imposed on them by law, i.e., until the age of six. Furthermore, the natural parents continue to be liable for the basic needs of their child from the age of six, to the extent that such needs are not or cannot be satisfied by the adopter; the continuation of this liability is based on Dinei Ẓedakah – the duty to give charity (see *Parent & Child; pdr, 3 (n.d.), 170–6; 4 (n.d.), 3–8).

With regard to right of inheritance, which according tohalakhah is recognized as existing between a child and his natural parents only, the matter can be dealt with by means of testamentary disposition, whereby the adopter makes provision in his will for such portion of his estate to devolve on the child as the latter would have gotten by law had the former been his natural parent (see Civil Case 85/49, in: Pesakim shel Beit ha-Mishpat ha-Elyon u-Vattei ha-Mishpat ha-Meḥoziyyim be-Yisrael, 1 (1948/49), 343–8). In accordance with the rule that "Scripture looks upon one who brings up an orphan as if he had begotten him" (Sanh. 19b; Meg. 13a), there is no halakhic objection to the adopter calling the "adopted" child his son and the latter calling the former his father (Sanh. ibid., based on ii Sam. 21:8). Hence, provisions in documents in which these appellations are used by either party, where the adopter has no natural children and/or the child has no natural parent, may be taken as intended by the one to favor the other, according to the general tenor of the document (Sh. Ar., eh 19, Pitḥei Teshuvah, 3; Ḥm 42:15; Responsa Ḥatam Sofer, eh 76). Since the legal acts mentioned above bring about no actual change in personal status, they do not affect the laws of marriage and divorce, so far as they might concern any of the parties involved.

In Israel

In the State of Israel, until 1981, adoption was governed by the Adoption of Children Law, 5720/1960, which empowered the district court and, with the consent of all the parties concerned, the rabbinical court, to grant an adoption order in respect of any person under the age of 18 years, provided that the prospective adopter was at least 18 years older than the prospective adoptee and the court were satisfied that the matter was in the best interests of the adoptee. Such an order had the effect of severing all family ties between the child and his natural parents. On the other hand, such a court order created new family ties between the adopter and the child to the same extent as are legally recognized as existing between natural parents and their child – unless the order was restricted or conditional in some respect. Thus, an adoption order would generally confer rights of intestate succession on the adoptee, who would henceforth also bear his adopter's name. However, the order did not affect the consequences of the blood relationship between the adoptee and his natural parents, so that the prohibitions and permissions of marriage and divorce continued to apply. On the other hand, adoption as such does not create such new prohibitions or permissions between the adopted and the adoptive family. There was no legal adoption of persons over the age of 18 years.

[Ben-Zion (Benno) Schereschewsky]

In 1981 the Knesset repealed the Adoption of Children Law, 5720/1960 and enacted in its stead the Adoption of Children Law, 5741/1981 (hereinafter – the Law), empowering the Family Court to issue adoption orders. The Law and its subsequent amendments provide for two substantively different modes of adoption. The first is local adoption, in which the Child Welfare Authority – a branch of the Welfare Ministry – functions as an adoption agency: it determines the adoptive parents' eligibility and even initiates adoption proceedings of the minor in the court, by way of special welfare officers for adoption. Proceedings to declare a minor adoptable can only be initiated by these welfare officers. The Child Welfare Authority is similarly responsible for the removal of a child from the custody of his natural parents against their wishes, for purposes of adoption. Occasionally, and under special circumstances, even prior to the child being declared adoptable the Authority may hand over the child "to a person who has agreed to receive him into his house with a view to adopting him" (§12 (c) of the Law). The second mode is that of "intercountry" (i.e., international) adoption, in which the adoption is undertaken by non-profit organizations under the supervision of a "central authority," i.e., the Child Welfare Authority.

The difference between the two kinds of adoption is as follows: local adoption also involves numerous cases in which the biological parents do not consent to hand their child over for adoption, in which case, quite naturally, the identity of the adoptive parents is withheld (closed adoption) to protect the adopted child from potential harm at the hands of his natural parents. In international adoption, the adoption is the product of negotiations between the prospective adoptive parents and the natural family. Under the Law, the rabbinical court is also permitted to issue adoption orders with the consent of all the parties, i.e., the parents (or adoptive parents, respectively) and the minor (when the case concerns a minor above the age of nine) or with the consent of the attorney general (in cases of a minor below nine). Even in those cases in which the rabbinical court has jurisdiction pursuant to the parties' consent, it is nevertheless obliged to comply with all the provisions of the law (§27).

The arrangements for international adoption were transformed when the law was amended in 1996, in accordance with the format of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, which Israel ratified in 1993. Together with the incorporation of the Convention's provisions in the Law, the legislature also addressed a particular problem, unique to the State of Israel by virtue of its Jewish character. Under section 5 of the Law: "The adopter shall be of the same religion as the adoptee." How then can a Jewish family receive an adoption order for a non-Jewish child, brought to Israel from abroad? The legislature resolved this problem by amending section 13a of the Capacity and Guardianship Law, 5722/1962, which now provides that the court may give an instruction for the minor's religious conversion "to the religion of the person who provided for the minor with the intention of adopting him, during the six months that preceded the filing of the application for conversion."

In addition to the court's authorization, the minor who is a candidate for adoption must undergo a conversion process; according to the halakhah, a minor who is to be converted must be ritually immersed for conversion through the authority of the bet din. This is so, "because it [the conversion] is a benefit to him" (Ketubot 11a). The Israeli rabbinical courts have avoided converting minors who are candidates for adoption when the prospective adoptive parents will not provide him/her with an education based upon religious observance.

The case law of the Israel Supreme Court on adoption (given by Deputy President Menachem *Elon) emphasized the extensive impact of Jewish law on actual adoption procedures. The Law provides that "the adoption shall not affect any legal prohibition or permission as to marriage or divorce" (§16(c)); accordingly, the Adoption Register may be inspected by a marriage registrar in the course of carrying out his official function (§30 (2)). In doing so he raises the legal "veil" separating the adopted child from his natural family in order to establish the "legitimacy of his pedigree"; in other words, to prevent marriages between a brother and sister, etc. Furthermore, an adoption performed "for the benefit of the adoptee" does not represent the optimal solution, and preference should be given to the other arrangements, which do not sever the child from his natural family, despite their defective parental capacity. "Adoption is not intended as a punishment for the natural parents… we punish by confiscating property; we punish by denying freedom, but we do not punish by taking children away" (c.a. 3063/90 p.d. 45 (5) 837, 848), save for cases in which there is unequivocal, objective proof that the parents are incapable of raising their children.

As a rule, there is no discussion of the "child's best interests" until after examination as to whether there is any statutory ground for "removing the child from the natural guardianship of his parents and placing him in the home of the adopters" (h.c. 243/88 Konsols v. Turgeman, 45 (5) p.d. 837, 848). For the same reason, all possible efforts should be made to avoid ordering that the adoption of the minor be a "closed" adoption, which separates the minor from his natural identity. Indeed, in its capacity as the "father of minors," the court is commanded to "ensure the welfare and the future of the minor" and order that he be severed from his natural family – but this, only done when the court is convinced that leaving the minor with his family, or placing him with a foster family or in an "open adoption" will cause him terrible suffering due to his parents' incompetence (Elon, in the following judgments: c.a. 310/82, 37 (4) p.d. 421; c.a. 3763/92, 47 (1) p.d. 869). Similarly, the court will order the Child Welfare Service to seriously consider a request from the natural family that their child be given to "a family belonging to their own religious community, that maintains a religious lifestyle" (c.a. 3063/90 45 (3) 837) and, in exceptional circumstances, consider assenting to the parents' request that their child be adopted by their relatives who have no children of their own. This is in accordance with the prevalent custom in a number of Jewish communities whereby "when a couple belonging to the extended family is childless, another couple in the family, blessed with children, gives one of them to the couple that was denied their own offspring, and the latter can adopt and raise the child, as if he was their own child" (c.a. 568/80 35 (3) 701, 702).

Where the question arose of severing an adoptee minor from the religion of his natural parents, Justice Elon raised another consideration for withholding authorization of an adoption performed against the natural parents' wishes, or with their coerced consent: "We remember the battles fought by Jewish families and institutions in order to restore Jewish children to their families and religion. Prior to being sent to the death camps and gas chambers these families placed their children with Christians to care for them and raise them. It is befitting that we emulate their conduct in similar situations, when the tables are turned and the context is no longer the death camps but rather gangs of avaricious criminals" (the case of the "Brazilian girl" who was abducted from her natural mother; h.c. 243/88, 45 (2) p.d. 652).

In describing the character of the institution of adoption, its interpretation and implementation by the Israeli judiciary, Justice Elon further stated:

I wholeheartedly agree that we must not hinder the development of the institution of adoption, having regard primarily for its crucial importance in locating a warm and secure home and a loving, devoted family for children who have suffered at the hands of fate. In pursuing this important goal we must also ensure the totality of the adoptive parents' rights and obligations in their relations with the adopted child. However, we must not ignore our principal and basic obligation, which is to maintain, promote and preserve the earliest and most fundamental social unit in human history: the natural family, its descendants, offshoots and progeny, the unit which always has, does, and always will continue to guarantee the survival of human society. This is certainly the case when dealing with the history of the Jewish family, in which the family unit, in both the immediate and extended sense, was the central pillar that guaranteed Jewish survival and continuity. This principle applies a fortiori in our times, in which the institution of the natural family has encountered tumultuous upheavals and frequent crises, which have weakened its capacity to function. (c.a. 488/77, 32 (3) p.d. 421 434)

And, in another decision:

Tearing a child away from his biological parents is more difficult than splitting the Red Sea. The same applies to all decisions concerning a minor's adoption; all the more so in a case such as the one confronting us, in which the children are no longer infants and know their parents and their siblings. But as a court that is the "father of all minors," it is our responsibility to ensure their welfare and their best interests. It is incumbent upon us to find them a home in which they will merit love and warmth, physical well-being and spiritual tranquility, and all of the basic, elementary needs that they are not receiving in the home of their biological parents. (c.a. 658/88, 43 (4) p.d. 468, p. 477)

[Yisrael Gilat (2^nd ed.)]

bibliography:

bible commentaries: J. Skinner, The Book of Genesis (icc, 1930²); E. Speiser, Genesis (1964); N.M. Sarna, Understanding Genesis (1966); W. Rudolph, Ruth (1962); M.J. Dahood, Psalms, vol. 1 (1966). general: T.H. Gaster, Myth… in the Old Testament (1969), 448–9, 741–2; de Vaux, Anc Isr, 51–54, 111–3 (bibl. 523); S. Feigin, in: jbl, 50 (1931), 186–200; idem, Mi-Sitrei he-Avar (1943), 15–24, 50–53; H. Granqvist, Birth and Childhood Among the Arabs (1947), 60, 114, 252–9; M. David, Adoptie in het Oude Israel (Dutch, 1955); Z. Falk, Hebrew Law in Biblical Times (1964), 162–4; F. Lyall, in jbl, 88 (1969), 458–66; H. Donner, in: Oriens Antiquus, 8 (1969), 87–119; H.E. Baker, Legal System of Israel (1968), index. special studies: B. Stade, in: zaw, 6 (1886), 143–56; G. Cooke, ibid., 73 (1961), 202–25; C. Gordon, in: ba, 3 (1940), 2–7; H.H. Rowley, The Servant of the Lord… (1952), 163–86 (= htr, 40 (1947), 77–99); I. Mendelsohn, in: iej, 9 (1959), 180–3; R. Patai, Sex and Family in the Bible and the Middle East (1959), 42, 78–79, 92–98, 205, 224; W.F. Albright, in: basor, 163 (1961), 47; H. Hoffner, in: jnes, 27 (1968), 198–203; J. Preuss, Biblisch-Talmudische Medizin (1923), 460–1; S. Kardimon, in: jss, 3 (1958), 123–6; J. van Seters, in: jbl, 87 (1968), 401–8; Z. Falk, in: Iura, 17 (1966), 170–1. jewish law: J. Kister, Sekirah al Immuẓ Yeladim… (1953); G. Felder, Hakohen, in: Sinai, 48 (1961), 204 ff.; Findling, in: No'am, 4 (1961), 65 ff.; Ezraḥi, ibid., 94 ff.; Rudner, ibid., 61 ff.; B. Schereschewsky, Dinei Mishpaḥah (1967²), 395 ff. add. bibliography: M. Elon, Jewish Law – History, Sources Principles (1994), 827, 1763–1765; idem, Jewish Law (Mishpat Ivri): Cases and Materials (Mathew Bender Case Books, 1999), 313–22; A. Abraham, "Imuẓ Yeladim," in: Hama'ayan (1994), 29; "Sample of Adoption Order given by the Rabbinical Court for a Minor, in accordance with the Halakhah," in: Shurat ha-Din (2000), 475; A.J. Goldman, Judaism Confronts Contemporary Issues (1978), 63–73; Y. Rosen, "Giyyur Ketinim ha-Me'umaẓim be-Mishpaḥah Ḥillonit," in Teḥumin, 20 (2000), 245; M. Steinberg, Responsum on Problems of Adoption in Jewish Law (1969); I. Warhaftig, Av u-Veno, Mehkarei Mishpat, 16 (2000), 479; R. Yaron, "Variations on Adoption," in: Journal of Juristic Papyrology, 15 (1965), 171–83.

Adoption

Adoption is a process in which a person (the adoptee) acquires the rights and duties of a biological child with respect to an individual who is not the adoptee's biological parent. The process is usually legal in character, but in some cultures adoption occurs by social ritual. As part of the process of adoption, the adoptee's legal relationship with his or her biological parents may be terminated.

Common events triggering the possibility of adoption are the death of a biological parent; the termination of a biological parent's rights following the abuse, neglect or abandonment of the adoptee; or the divorce of the biological parents followed by the remarriage of the custodial parent and a loss of contact with the noncustodial biological parent.

Legal Consequences and Availability

Two standard models of adoption exist. In one model, found in Anglo-American jurisprudence and other legal systems, the effect of adoption is that the biological parent's rights and duties end with respect to the adoptee (Cretney and Masson 1997). These rights and duties are acquired by the adoptive parents (Hampton 2000). Thus, the biological parents cease to owe the adoptee a duty of support, and this duty is imposed on the adoptive parents. Similarly, normally the adoptee loses the right to inherit from a biological parent who dies leaving no will, but acquires such a right to inherit from the adoptive parent. In the second model, a complete severance of the legal relationship between the adoptee and his or her biological parent does not occur. Instead, as in Turkey (Örücü 1999), the adoptee acquires some rights and duties with respect to the adoptive parent, but retains others with respect to a biological parent.

In some countries, both models may co-exist. This occurs notably in Europe, as in Bosnia and Herzegovina (Bubic 1998) and Portugal (De Oliveira and Cid 1998), and in those countries whose legal traditions flow from Europe, as in Argentina (Grosman 1998), Colombia, and other countries in Central and South America (Monroy 1998). The model used in any given adoption may depend on the purpose behind the adoption or the circumstances of the adoptive and biological parents and the adoptee. For example, in Scotland (Sutherland 1997), when a biological parent remarries and the adoption is by the stepparent, the legal relationship with the other biological parent may not terminate completely even though a legal relationship with the adoptive parent is established. This approach is often followed in the United States (Hampton 2000). Thus, the adoptee may be entitled to support from both the biological parents and the adoptive parent. Similarly, the adoptee may be entitled to inherit from both the adoptive parent and perhaps his or her relatives, as well as from the biological parents and their relatives.

Islamic jurisprudence generally does not permit formal adoption. However, some Islamic countries such as Somalia and Tunisia permit adoption. Adoption is also possible in some circumstances among Muslims in South Asia (Pearl and Menski 1998).

In some countries, the applicable family law rules may be determined by factors such as the individual's citizenship, clan membership, or religion. Accordingly, in a given country, adoption rules may vary with the individuals involved, and indeed, may not be available to some individuals at all. Thus, in India, the availability of adoption is controlled by an individual's religion. Statute permits adoption among a broadly defined group of Hindus. The law, however, does not apply to those who are Muslim, Christian, Parsi, or Jew by religion (Pant 1994). Ordinarily, these individuals cannot formally adopt a child, although some of the objectives of adoption can be achieved using the laws of guardianship or the rules regulating the distribution of property by will (Manooja 1993).

History and Purpose

Adoption has been known from biblical times and in many cultures (Goody 1969). In Europe, the roots of modern law lie with the Greeks and Romans. Similarly, in the East, adoption has a long tradition. In Hindu literature, discussions of adoption go back more than 5,500 years (Pant 1994). Common themes dominate the purposes behind adoption in ancient times. Some of these themes are still relevant today.

To the early Greeks and Romans, the goal of adoption was to perpetuate the family based on the male line of descent and to ensure the continuation of the family's religious practices. Thus, the adopter originally had to be a male without a legitimate son (Harrison 1968; Hornblower and Spanforth 1996). Adoption also served the purpose of cementing political alliances between families and continuing political dynasties (Gager 1996). Later Roman emperors, however, did permit adoption by women to "console them for the loss of children" (Moyle 1912). Similarly, early Chinese tradition was primarily concerned with the goals of family continuity and preserving the cult of the ancestors. The object of adoption was to produce a legal successor, and the process was governed by strict rules. For example, the adoptee had to be from the same clan as the adopter, or at least have the same surname and be younger than the adopter so as to maintain order in the family genealogy (Bodde and Morris 1967). However, Chinese tradition also permitted the adoption of a charity son who was supported by the family but acquired no rights in it and did not participate in family religious rituals.

With time, the Roman concept of adoption migrated through Europe where it encountered local customs and codes, such as those found among the Germanic peoples. The use of formal adoption floundered in Europe, and notably in France, during the seventeenth century, chiefly as a result of the disapproval of the church (Gager 1996). Adoption survived, however, due to existing practices of custom, coupled with the needs of the elderly who, after depopulation following the plague epidemic, were willing to trade inheritances for security in old age—as the elderly still do in Turkey (Örücü 1999). One form of adoption practice employed during the seventeenth century involved the use of notarized contracts of adoption. This form is still found in some countries. Postrevolutionary France saw adoption as a means to break down class barriers and redistribute wealth, as well as being a remedy for childless households and children without families. Even so, the Napoleonic Code imposed strict limitations aimed at protecting legitimate biological heirs and the institution of marriage. As a result, ordinarily, only married couples could adopt (Gager 1996).

In contrast, Roman adoption practices never took hold in England. Statute law first introduced adoption to England in 1926 (Cretney and Masson 1997). English concerns with the integrity of blood lines and the desire to ensure that property was inherited by legitimate biological descendants meant that there was no adoption law to be received in postrevolutionary America. In the United States, adoption laws developed in response to the needs of dependent children, not infrequently poor, orphaned, or handicapped. Statutory schemes regulating adoption were first enacted by the states after the middle of the nineteenth century, the earliest probably being in Massachusetts in 1851.

The English and their European neighbors took their adoption practices to their colonies. For example, French and Spanish principles found their way to Central and South America (Monroy 1998). Imperial rules often encountered customary practices. Accordingly, current adoption law sometimes reflects a blend of the European roots and local tradition, as in New Zealand (Atkin 1997), Uganda (Okumu Wengi 1997), and Zambia (Munalula 1999).

In relatively recent times there has been a significant worldwide shift to recognizing the role adoption should play in advancing the interest of the individual adoptee, rather than the goals of broader elements of society or the interests of would-be adopters. This process has been enhanced by the evolution of global standards as reflected, for example, in the United Nations Convention on Rights of the Child. In some countries, for example, Argentina (Grosman 1998) and Uganda (Okumu Wengi 1997), this Convention is an integral part of the country's adoption law. In others, as in Scotland (Sutherland 1997), the Convention is highly influential.

Process

There are three basic types of adoption processes: direct placement by the biological parent or parents, placement through a state agency, or placement through a private agency licensed by the state. Direct placement is often found where the adopter is a stepparent or close relative, as in Germany (Deliyannis 1997). Where direct placement by a biological parent is permitted, there is increasing concern to ensure that the adoptive parents are subjected to a screening process if they are not related to the adoptee (Boskey and Hollinger 2000). Any such screening is usually conducted by a state agency or an entity or individual approved by the state. However, screening does not occur in all countries (Manooja 1993).

Countries such as Argentina (Grosman 1998), China (Palmer 2000), and Latvia (Vebers 1999), or sometimes adoption agencies themselves, often impose extensive conditions on the eligibility of people to adopt and the children who may be placed with particular adoptive parents. As far as adoptive parents are concerned, conditions may include requirements relating to their ages and the age difference between them and the adoptee, their physical and mental health, their financial resources, and their community reputation. Adoption by unmarried couples, couples of the same sex, single individuals, and couples whose infertility is not established, may also be precluded (Forder 2000; Cretney and Masson 1997; Kounougeri-Manoledaki 1995). Traditionally, attention was paid to matching the physical characteristics of adoptive parents and the adoptee, as well as their socioeconomic backgrounds, religion, and race. Eligibility for adoption also might be affected by clan, tribal, or caste membership (Okumu Wengi 1997). Sometimes, as in Colombia (Monroy 1998), the concern is that neglecting race or tribal membership, for example, will adversely affect the adoptee and lead to the erosion of the relevant group and its culture. For these reasons, in the United States, the federal Indian Child Welfare Act of 1978 places control of the adoption of children eligible for tribal membership in the hands of the tribe and the tribal courts (Hollinger 2000a). In contrast, although a child's race may be taken into account for placement purposes, federal law does not permit the adoption placement to be delayed unduly while a same-race placement is sought.

In some countries, adoption can occur in a relatively informal way by mere agreement between the adoptive parents and the biological parents. This agreement may be reflected in some symbolic way in the form of a more or less public ceremony or ritual, as in India (Manooja 1993; Pant 1994), or by written contract, or by registration, as in China (Zhang 1997) and Rwanda (Ntampaka 1997). In other countries, adoption requires a decree by a court, as in Argentina (Grosman 1998), the United States (Hollinger 2000b), and Russia (Khazova 2000), or a decision by an administrative agency, as in Hungary (Dóczi 1997).

In many countries, the adoption process involves three phases: termination of parental rights; placement of the adoptee with an adoptive family; and finalization of the adoption. Sometimes, as in England (Cretney and Masson 1997), the state obtains the termination of the rights of a biological parent over the opposition of that parent. This may be due to the parent's abuse, neglect, or abandonment of the child, or due to a failure to support the child, or because the parent is mentally or physically ill, or imprisoned, or otherwise unfit. Where the biological parent favors the adoption, parental rights usually are relinquished either by surrender of the adoptee to an agency, or by the formal consent of the parent to the adoption. To help ensure that the biological parent is willing to surrender the child for adoption, many countries, as in Poland (Stojanowska 1997), specify that consent to the adoption cannot be given before the birth of the child. Also, formal procedures are employed to reduce the risk that the biological parent will be pressured into giving consent (Melli 1996). In this regard, generally, a biological parent cannot be paid for consenting to adoption. However, adoptive parents routinely pay for expenses associated with birth, as well as paying agencies and other intermediaries for their services (Melli 1996; Somit 2000). Despite these rules, there is concern that economic circumstances in some countries drive parents to give up their children, sometimes for compensation. Many countries require that children above a certain age must consent to their adoption, or, at least, be consulted regarding it.

Some countries, for example Argentina (Grosman 1998), Japan (Oda 1999), and the United States (Melli 1996), often impose a delay between the time when the adoptee is placed with the adoptive parents and the point where the adoption becomes final. This delay, as in Switzerland (Graham-Siegenthaler 1995), is to enable an investigator to conduct a home study and report to the relevant court or administrative agency on the success of the placement before the court or agency grants the final order of adoption.

Procedurally, difficulties can arise with respect to the biological father of the adoptee. His identity or location may be unknown, or may be known to the adoptee's mother, who conceals the information from the adoption authorities. Moreover, the father may be unaware of the mother's pregnancy, or he may know of the birth but have played no active role in either supporting the child or developing a social relationship with it. In such contexts, countries are reluctant to put the father in a position to block the adoption or delay it. To address these concerns, modern law tends to require that a biological father who has acknowledged his paternity or had it determined (Frank 1997) or who has been socially or financially active in the adoptee's life must give his consent to the adoption, or, if grounds exist, have his rights terminated on an involuntary basis (Cretney and Masson 1997). Where the father's identity is unknown or where he played a passive role in the adoptee's life, his consent to adoption is not required. At best, as in the Republic of Ireland (Ward 2000), an effort will be made to find the father and notify him of the proposed adoption and receive his input without giving him the ability to control the process.

In some cultures, adoption is a public event. Both the fact of adoption and the identity of the birth parents are known. In other traditions, the fact of adoption and related issues are kept secret. This might be because adoption is a means of dealing with children born out of wedlock or because secrecy and anonymity are seen as devices producing greater integration of the adoptee into the adoptive family, while shielding the biological parents. This approach requires adoption records to be sealed and placements to occur through intermediaries. Increasingly, health concerns and other considerations have led to requirements, as for example in the United States (Melli 1996), that nonidentifying background information be made available to adoptive parents. Beyond this, some countries, such as Argentina (Grosman 1998), are willing to allow access to background information, even if the effect is to reveal the fact of the adoption and the identities of the biological and adoptive families. In England, an adoptee, upon adulthood, may obtain a copy of the original birth certificate (Cretney and Masson 1997). In some countries, this access is possible only if good cause can be shown for disclosing the information. In other instances, a register is maintained of biological and adoptive parents who are willing to have their identities revealed if an inquiry is made. Even in countries where secret adoptions were the norm, there is increasing interest, as in New Zealand (Atkin 1997), in open adoptions, that is adoptions where contact is maintained between the biological parents and the adoptive family. These contacts may range from limited written communication to formal arrangements for physical contact. Such arrangements may even extend to more remote family members such as biological grandparents. The maintenance of contacts is seen as a way of helping biological parents deal with a sense of grief while facilitating the adoption process. However, concerns exist that open adoptions risk disrupting the adoptive family (Cretney and Masson 1997). Open adoptions are particularly favored in the context of adoptions by stepparents or adoptions of older children, that is, in circumstances where the adoptee already has an established relationship with the biological parents.

International Adoptions

Concern with an increasing incidence of children from one country being adopted in another led, in 1993, to the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption (Pfund 1993). The increase in international adoptions in recent times is due to a decline in the birth rate in certain countries, coupled with relatively high fertility rates in other countries, possibly accompanied by social disruption because of war, disease, famine, and poverty. The Convention attempts to address a number of concerns. First, it seeks to ensure that the children are legitimately available for adoption. Second, the Convention requires reasonable efforts to find a permanent placement in the child's country of origin. Finally, the Convention aims to ensure that the placement in the receiving country is one that will benefit the child, and, in particular, that the adoptive parents are suitable (Bartholet 2000; Rosettenstein 1995). Many countries have ratified the Convention and modified their laws to meet its requirements.

See also:Adolescent Parenthood; Children's Rights; Family Law; Gay Parents; Lesbian Parents; Orphans; Single-Parent Families

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DAVID S. ROSETTENSTEIN