What Does History Tell Us About Adoption?

by Kristin Darr

Historical adoption principles should inform present policies.

Historically, two principles have governed adoption practice in the United States: the obligation to serve the best interest of adopted children and the need to imitate natural family situations.[1]

First, since the inception of American adoption law, the fundamental purpose of adoption in the U.S. has been to serve the best interest of children. While Roman adoption law focused on benefiting adoptive parents by providing them an heir, the very first American adoption law, passed by Massachusetts in 1851, emphasized the needs of adopted children.[2] Today, concern for the best interest of children is the stated goal of adoption policy in every state.[3]

Second, the legal emphasis on the needs of children has driven American adoption laws to promote adoption of children into “nuclear family” structures composed of a married couple and their dependent children.[4] Affirming “that what is ‘natural’ in the context of the biologic family is what is normal and desirable in the context of adoption,” state policies have sought to “fashion adoption in imitation of procreation.”[5] These laws are crafted upon the premise that the tragedy of family breakdown is best remedied by the creation of a new family, one mimicking the natural family structure.

The adoption principles of imitating natural family structures and promoting children’s best interests are inevitably linked. Research has confirmed what historical experience has illustrated, that married mother-father households provide substantial benefits for children.[6] Children with a married mom and dad are much less likely to live in poverty and to suffer from depression and much more likely to do well in school and to experience future relationship success. In fact, children do best in every important measure when raised by two married, biological parents.[7] Married parents provide adopted children needed stability and security and offer them vital access to the different and complementary ways mothers and fathers parent. In addition to the practical benefits that natural family structures afford adopted children, only adoptive placements into a traditional family context can truly imitate the original mother and father scenario into which a child is born.

According to the important historical principles of adoption, the gold standard for adoptive placements is considered to be married, heterosexual couples, whenever possible. Yet, larger shifts in American cultural values and judicial norms are moving adoption laws and practice away from the goals of imitating natural family structures. Instead the best interests of children are threatened by movements to redefine the traditional family, efforts to enshrine tolerance, and shifts to emphasize adults’ right to adopt. Particularly, the push for adoption by same-sex couples not only negates the policy goals enshrined in American adoption law for over a century, but also ignores the well-being of children and further attacks the fundamental social institution of family.

In the face of movements to redefine the family, it is crucial that adoption policies and practices ensure the best interest of children and promote nuclear family structures. Utah is the only state in the country that codifies a preference for marriage in its adoption law by banning adoption by unmarried couples.[8] In the best interest of children, other states should enact similar policies, which enshrine a preference for nuclear family models.

Finally, states should prohibit second-parent adoption, which is basically a legal means for two unmarried partners, including gay and lesbian partners, to adopt together. At the very least, states should enact Freedom of Conscience laws, which protect the right of adoption agencies to exhibit adoption placement preference for married couples and to prohibit placement with homosexual couples. These and other such policies would protect traditional adoption goals by both serving the best interest of adopted children and imitating natural family situations.

In order to serve the best interest of children, adoption laws should:

1) Promote the nuclear family structure by codifying a preference for marriage in adoption law (Example: Utah’s law prohibits adoption by cohabiting couples: Code Ann. § 78-30-9,)

2) Prohibit second-parent adoption

3) Enact Freedom of Conscience Laws (Example: North Dakota’s “Adoption Agency Freedom to Serve” Act)

For more information:

[1] Duncan, William C. “In Whose Best Interests: Sexual Orientation and Adoption Law,” Capital U. L. Rev. 31:787 (2003). See http://www.marriagelawfoundation.org/mlf/publications/Capital.pdf.

[2] Jehnna Irene Hanan, The Best Interest of the Child: Eliminating Discrimination Screening of Adoptive Parents, 27 Golden Gate Univ. L. Rev. 167, 172 (1997).

[3] Ibid.

[4] Richard F. Storrow, The Policy of Family Privacy: Uncovering the Bias In Favor of Nuclear Families in American Constitutional Law and Policy Reform, 66 MO. L. REV. 527, 606 (2001).

[5] Elizabeth Bartholet, Family Bonds: Adoption, Infertility, and the New World of Child Production, 232 (1999).

[6] “Why Marriage Matters, Second Edition: Twenty-Six Conclusions from the Social Sciences,” 2005. (New York, NY: Institute for American Values).

[7] Gallagher, Maggie and Baker, Joshua K. “Do Mothers and Fathers Matter? The Social Science Evidence on Marriage and Child Well-Being.” Institute for Marriage and Public Policy. 27 Feb. 2004. See http://www.marriagedebate.com/pdf/Do%20Mothers%20and%20Fathers%20Matter.pdf

[8] Utah Code Ann. § 78-30-9

Kristin Darr is the Associate Analyst for Adoption Policy at Focus on the Family.

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What Does History Tell Us About Adoption?