In the fall of 1985, I flew from Boston to Lima, Peru, to adopt a four-month-old child. some 18 years earlier I had given birth to my first child. During the last 10 of those years, I had struggled to give birth again, combating an infertility problem that had resulted, as is often the case, from use of a contraceptive device during the intervening years. I had been married when I produced my first child, but my husband and I divorced when my son was just a few years old. Years later I decided I wanted more children, regardless of whether I was married. But I found that I was unable to conceive.
I subjected myself to every form of medical treatment that offered any possibility of success. I had operations to diagnose my problem, I took fertility drugs and charted my menstrual cycles and my temperature, and I had sexual intercourse according to the prescribed schedule. I had surgery to remove scar tissue from my fallopian tubes. And I went through in vitro fertilization (IVF) repeatedly in programs in three different states. As a single person in my early forties, I was officially excluded from every IVF program in the country that I learned about. Almost all had a maximum age of 40, and all limited their services to married couples. But I was determined. I begged my way into programs that were willing to consider bending their age rules, and I presented myself as married, with the help of a loyal and loving friend who was willing to play the part of husband. Unaccustomed to a life of fraud, I spent much of my IVF existence terrified that I would be discovered.
Then I got lucky. I ran out of money. IVF treatment was excluded from health insurance coverage during this period, and I had cursed my fate and timing, as it seemed likely that the exclusion would eventually be eliminated. I had been paying the going price, $5,000 for a full treatment cycle, and had about run through what savings I had.
I woke one morning in March 1985--I learned later that it was the month, and for all I know the very day, my son-to-be was born--and lay in bed thinking that I didn't want to spend all my remaining money on IVF. I would need it if I was to adopt. And I didn't want to spend any more time and energy or any more of my life on the fertility pursuit. I wanted a child, and I wanted to move on. I called my IVF program that day and said I would not go forward with another treatment cycle.
I was one of the fortunate infertility patients, because I did move on to adoption and to parenting. Treatment enables only a limited number of the infertile to conceive and bear children, and it prevents many from ever considering adoption as a form of parenting. I now look back in amazement at the person I was, traversing the country from one IVF program to another in search of an infertility fix. I am bemused at my shifting notions of "natural" and of "choice." It had seemed natural to pursue biologic parenting, even when the pursuit led me into the high-tech world of IVF where the doctors and lab technicians took over the business of conception, "harvesting" the eggs they had cultivated in the patient's body and inseminating them in glass dishes. It also had seemed that I was making choices when I decided to move on to new stages of treatment. Indeed, I had felt thrilled with the sense that I was pushing against the social and biologic constraints that prevented a single woman with damaged fallopian tubes from giving birth. Now I look back and see a woman driven by the forces that had told her since birth that she should go forth and multiply, that her ability to bear a child was central to her meaning as a human being, and that "real" parenting involved raising that biologically linked child.
The adoption experience changed me profoundly. It changed my life and my thinking about life. It changed my understanding of parenting and my view of the law, even though I had been a parent and lawyer all my adult life.
It was, of course, predictable that adoption would change my day-to-day life. I went back to Peru in 1988 and adopted another infant, so I am now the mother of two young children. My days start with small warm bodies crawling into my bed, my floors are covered with miniature cars and trucks and Lego pieces, my calendar is scrawled with the kids' doctor appointments and play dates. All this is familiar from 20 years ago, as are the middle-of-the-night coughing fits, the trips to the emergency room to stitch a bloody cut, the sense that there is not enough time to fit it all in.
But I could not have predicted these two particular magical children. I could not have imagined the ways in which they would crawl inside my heart and wrap themselves around my soul. I could not have known that I would be so entirely smitten, as a friend described me, so utterly possessed. And I could not have anticipated that these children thrown together with me and with each other, with no blood ties linking us to each other or to a common history, would seem so clearly the children meant for me.
The process I went through to form this family affected my understanding of many legal issues. As a lawyer, I had thought of the law largely in terms of its potential for advancing justice and social reform. In the adoption world, I experienced the law as something that operated primarily to prevent good things from happening. You need only to step through the door of this world and look around to realize that there are vast numbers of children in desperate need of homes and vast numbers of adults anxious to become parents. It seems overwhelmingly clear that efforts to put these groups of children and adults together would create much human happiness. But the legal systems in this and other countries have erected barriers that prevent people who want to parent from connecting with children who need homes.
Adoption also affected my understanding of discrimination. Because of my background, first as a civil rights lawyer and then as a law professor, my initial reaction to the adoption world was one of shock. I was familiar with a social realm increasingly governed by the principle that such human characteristics as race, religion, sex, age, and handicap should not matter. In the adoption world, just such factors are central in deciding who gets to parent and which kids get homes.
The adoption process also forced me to think on a personal level about discrimination. When you fill out a form for the adoption agency that asks what disabilities you could accept in a child--mental retardation, blindness, a missing limb, Down syndrome--you think about the meaning of disability in a new way. If you check the box that says "none of the above disabilities," you are pushed to think about how your act of discrimination compares with the act that excludes a disabled person from employment or housing. If your goal is to adopt children who fall in the "healthy infant" category, as my goal was, you may spend many guilty hours questioning whether you measure up as a loving human being and fit prospective parent.
Adoption transformed my feelings about infertility and my understanding of parental love. For years I had felt that there was only one less-than-tragic outcome of my infertility battle, and that was to reverse the damage that had been done to my body. I had felt that there was only one really satisfactory route to parenthood, and that was for me to conceive and to give birth. I had assumed that the love I felt for my first child had significantly to do with biologic connection. The experience of loving him was wrapped up in a package that included pregnancy, childbirth, nursing, and the genetic link that meant I recognized his eyes and face and personality as familial.
I discovered that parental love grows out of the experience of nurturing and that adoptive parenting is in fundamental ways identical to biologic parenting. Pregnancy and childbirth were for me enormously satisfying but now seem of limited relevance to the parenting relationship. I do not see biologic links as entirely irrelevant to parenting, but neither do I see an obvious hierarchical system for ranking biologic and adoptive parenting.
I can, of course, be seen as privileged by virtue of having experienced both kinds of parenting. It may therefore be hard for those who have never borne a child to identify with me. If, for example, there is some primal need to project oneself into future generations by reproduction, I have had the luxury of satisfying that need. But it seems that not much is gained by leaving a genetic legacy. You do not live on just because your egg or sperm has contributed to another life. The sense of immortality that many seek in parenting has more to do with the kind of identification that comes from the parent-child relationship and the way it helps shape the child's being.
This is not to say that becoming a parent through adoption is comparable to becoming a parent through giving birth. Adoption involves choice on a scale most of us don't generally experience. You can't fall accidentally into adoption as you can into pregnancy. You exercise choice down to the wire. And the choice to go forward with an adoption means a lifelong commitment, which simply isn't true of most other choices that we make. If you make a mistake in choosing a house, a job, or even a spouse, you can get out of it. Few of those who consciously enter an adoptive parenting relationship would feel comfortable opting out of their commitment.
While choice is difficult and uncomfortable for most of us, there are obvious advantages for children and parents in parenting that results from conscious choice. In the world of biologic parenting, too many children are raised by parents who neither planned for nor wanted them, and the evidence shows that this is problematic for both the parents and the children.
MAKING ADOPTION THE LAST RESORT
As a society, we define personhood and parenthood in terms of procreation. We push the infertile toward ever more elaborate forms of high-tech treatment. We are moving rapidly in the direction of a new child production market, in which sperm, eggs, embryos, and pregnancy services are for sale so that those who want to parent can produce a child to order. At the same time, we drive prospective parents away from children who already exist and need homes. The claim is that no children are available for adoption, but the fact is that millions of children the world over are in desperate need of nurturing homes. The politics of adoption in today's world prevents these children from being placed in adoptive homes. Our policies make no sense for people interested in parenting, for children in need of homes, or for a world struggling to take care of its population.
The medical profession has a near-monopoly on the information given out as people discover their infertility and explore and exercise their options. When people who have been trying to have a baby realize that something may be wrong, they usually consult their family doctor or their gynecologist, and then, if they can afford it, a fertility specialist. The specialist educates them about the range of treatment possibilities and, if they are willing and financially able, begins to lead them down the same treatment path I traveled: from scheduled sex to fallopian tube surgery to IVF.
The adoption world does essentially nothing to reach out to the infertile. Indeed, adoption agency rules push them away and prevent them from obtaining the information they need to consider adoption at an early stage. The accepted ethic among adoption workers is that prospective parents must resolve feelings about infertility before they pursue adoption. The idea behind this makes some sense: they should not enter into adoption thinking of their adopted child as a second-best substitute for the biologic child they still ache to produce. But it may be impossible to know whether the desire to parent will be satisfied by adoption without knowing what adoption is about.
Other factors contribute to the bias toward the medical process. Infertile people are bombarded with messages that reinforce the idea that adoption is an inferior form of parenting and should be thought of as a last resort. They are lured into IVF by aggressive advertising.
If infertile people do manage to get accurate information about their parenting options, they find that our society gives vastly preferential treatment to people seeking to produce children. First and foremost, those seeking to reproduce operate in a free market world in which they are able to make their own decisions subject only to financial and physical constraints. Those seeking to adopt operate in a highly regulated world in which the government asserts the right to determine who will be allowed to parent.
The parental screening requirement deters many who might otherwise consider adoption. People don't like to become helpless supplicants, utterly dependent on the grace of social workers, with respect to something as basic as parenting. Screening turns the process of becoming a parent into a bureaucratic nightmare of documents endlessly accumulated and stamped and submitted and copied.
Regulation also sends a powerful message. By subjecting adoptive but not biologic parents to regulation, society suggests that it trusts what goes on when people raise a birth child but profoundly distrusts what goes on when a child is transferred from a birth to an adoptive parent.
Society also discriminates in financial terms. People covered by health insurance are reimbursed for many of the costs involved in infertility treatment, pregnancy, and childbirth. Although insurance plans typically do not cover IVF treatment, the trend is toward expanding coverage to include it. Treatment and childbirth expenses that are not covered by insurance are tax deductible if they exceed a certain percentage of income. By contrast, those who adopt are generally on their own in paying for the adoption, and only limited subsidies are available for those who adopt children with special needs. There is no equivalent of insurance coverage for the expenses involved in adoption, nor are those expenses generally tax deductible. The expenses typically range from $5,000 to $12,000, and they often amount to as much as $35,000. Of course, expenses are as high as they are because we regulate adoption so extensively.
SCREENING PROSPECTIVE PARENTS
The parental screening system constitutes one of the major barriers to adoption. Both public and private agencies conduct home studies designed to assess eligibility for adoptive parenthood and to rank prospective parents for child assignments. The children waiting for homes are ranked and categorized as well.
The system operates on the basis of what looks roughly like a market system, one in which financial ranking produces buying power. The most "desirable" parents are matched with the most "desirable" children, and the less desirable with the less desirable, on down the list. The "marginally fit" parents are matched with the hardest-to-place children, which often means the children with the most extreme parenting needs and demands. Black parents are given black children, and Catholic parents are given the children surrendered by Catholic birth parents.
Discrimination is the name of the game. Those who procreate live in a world of near-absolute rights with respect to parenting. Those who would adopt have no rights. They must beg for the privilege of parenting and do so in a state-administered realm that denies them both the right to privacy and the "civil rights" that we have come to think of as fundamental in the rest of our communal life. Only the adoption system proudly proclaims not just the right to discriminate but the importance of doing so.
Moreover, because agencies simultaneously counsel and screen prospective parents, there is little incentive for parents to be honest about any anxieties or issues they might have about adoptive parenting. Most applicants want to score well in the process to improve their chances of adopting the kind of child they want. Those with any game-playing abilities will know that to score well, they should not bring up any issues that might concern a social worker. Thus they avoid frank discussion about legitimate issues that should be explored--what kinds of children they would find difficult to raise or how they would deal with their adopted child's birth family and ethnic or racial heritage. The eager applicant strives to come up with the best possible version of a life story and a series of "right" answers to difficult questions.
Money, however, enables prospective adopters to bypass the parental screening system. The more money they have, the greater their ability to shop around and escape the strictures of the system.
With money, you can venture into the world of the private adoption agency, which uses a variety of screening systems and offers a much larger proportion of healthy infants and young children. Some private agencies screen and match according to the classic home study criteria, but others are much more sympathetic to nontraditional parents. Still others are willing to place children with virtually all applicants who satisfy minimal criteria. Prospective adopters can shop among the private agencies and select the one most sympathetic to their personal profile and most likely to provide the kind of child they want. Fees vary significantly, with the agencies that are most open to nontraditional parents tending to charge higher fees.
Money also gives access to the world of "independent" adoption, which accounts for roughly one-third of all nonrelative adoption in the United States. Here home studies are not required at all. Some intermediaries and some birth parents apply their own screening criteria, and nontraditional parents have a harder time adopting than young married couples do. But many of those who place children in the independent process do little or no screening, and those who are more selective differ widely on what qualities they seek. Many parents who surrender infants at birth are attracted to independent adoption, so prospective adopters with enough money to explore the possibilities are able to avoid classic screening and to find their way to a healthy newborn. The state subjects these parents to only minimal scrutiny in the court process that formalizes the adoption.
Judged in terms of the very values it purports to serve, the screening system fails. Together with the rule against baby-buying, parental screening is supposed to ensure that children are assigned not to the highest bidder but to those deemed most fit to parent. The fact that money enables those deemed least fit to buy their way to the children who are most in demand makes a farce of the entire system.
FOR THE CHILDREN'S SAKE
We now place an extremely high value on the right to procreate and the related right to hold on to our biologic product. We place no real value on the aspect of parenting that has to do solely with relationship. There is essentially an absolute right to produce a child, but there is no right to enter into a parenting relationship with a child who is not linked by blood--no right to adopt. Foster parents, stepparents, and others who develop nurturing relationships with children are deemed by the law to have no right to maintain such relationships. They and the children who may have come to depend on them are subject to the whim of the blood-linked parent. Such parents, in contrast, have enormous proprietary power over their children. Even in situations of serious abuse and neglect, the government is reluctant to interfere with parental rights. Everyone knows that children require nurturing homes and parenting relationships, but it is painfully obvious that they have no enforceable rights to these things.
We need to flip this rights picture, upend this value system. We need to give priority to children and their interest in growing up in nurturing relationships. We need to recognize a right to provide the nurturing piece of parenting and give it equal status with the right to procreate. Any such revision of parenting rights and responsibilities would lead to a very different view of the role that adoption agencies should play. It would seem obvious that their primary function should be to create parent-child relationships--to find homes for children in need of nurturing parents and to find children for adults who want to nurture. In this new world, agencies would become adoption advocates. They might devote some resources to screening out those who are demonstrably unfit to parent, but they would be conscious of the importance of not creating barriers that would discourage people from providing homes to existing children in need. Their respect for adult interests in enjoying parenting relationships would make them reluctant to impose any screening requirements that do not seem necessary to protect children.
Parental screening in adoption has always been justified as necessary for the protection of children. But children have much to gain--homes and parents--and little to lose from scrapping the system.
Many traditionalists claim that children will lose appropriate parenting if we abandon the screening and matching process. The argument for parental screening rests largely on the assumption that children are subject to special risks when there is no biologic link between parent and child. But the fact that adoptive parents have consciously chosen parenthood would seem more than enough to compensate for any difficulties that might be inherent in adoptive parenting.
Nor is there any evidence that the absence of a biologic link affects the successful establishment of a parent-child relationship. Studies indicate that adoptive families function very well compared with biologic families and that adoptive parents are successful in helping their children overcome unfortunate pre-adoptive histories. There is no evidence that adoptive parents are more likely than biologic parents to abuse their children. The adoption literature makes many claims that adoptive relationships are inherently problematic. But only recently have empirical studies compared nonclinical groups of children adopted in infancy with control groups of children raised in their birth families. These studies reveal no significant disadvantages to adoptive parenting. Indeed, some studies indicate there may be advantages to adoptive parenting--that adoptive parents may, for example, be more caring and responsive to their children's needs.
Screening is said by some to be an appropriate way of allocating a scarce resource. If there is a limited supply of children available for adoption, why not select those parents who will do the best job?But the supply is not limited. There are many more children in need of adoptive homes than there are homes available for them. While it is true that limited numbers of healthy infants born in this country are available for adoption, more than 400,000 children were in foster care at the end of 1990, and the numbers are going up at a frightening rate, with experts predicting that this figure will double by 1995. Tens of thousands of these children are free for adoption and waiting for homes. Many of them will wait for years before being placed with adoptive families, and many will grow up in foster or institutional homes. In other countries untold millions of children need homes. Many of them are free for adoption, and many more could be free if adoptive homes were available.
It is very likely that we do not know what we think we know about what makes for good parenting or happy families. Our views are necessarily shaped by a model of parenting sanctioned by biology and tradition. But single people and older people who ask for the chance to parent usually don't look much like their counterparts in the general population. Moreover, many of the married couples preferred by adoption agencies will be divorced within a few years, and their children will be subject to the traumatic change that divorce represents. Generally, those children will be left with just one parent, who often will be less prepared to function as a single parent than the person who deliberately adopts on his or her own.
People who choose to become parents in their late thirties and forties often testify that this is a good stage of life in which to parent because they feel less torn by the conflict between work and family and more capable of giving of themselves to a child than they did when they were younger. Some gays and lesbians maintain that for children with a same-sex or bisexual orientation, growing up with determinedly heterosexual parents can be oppressive.
The studies that exist provide no indication that the objective factors relied on by the current screening system are useful predictors of good parenting. There is no evidence that these factors are correlated with success as an adoptive parent, and there is no evidence that those who become adoptive parents by virtue of the agency screening process are more successful than those who avoid such screening by using the independent adoption system. Studies do, however, reveal that children raised by parents rated by the agency system as "marginal," such as straight singles and gay and lesbian couples, suffer no significant disadvantages compared with children raised in traditional households.
Parental screening has enormous costs from the perspective of those screened and categorized by the system. A declaration that a person is unfit, or marginally fit, to parent another human being is a serious condemnation. A denial of the opportunity to parent constitutes for many people a denial of what is most meaningful in life. The government should have to demonstrate a powerful interest in screening in order to justify such costs.
The government has traditionally asserted an interest in promoting heterosexual marriage and parenting in the context of such a marriage. But adoptive screening does little to promote this vision of the family. Instead it drives some gays and lesbians underground to pose as straight adoptive parents, and others, together with older applicants and singles, into the private and the independent adoption worlds, where they can avoid the strictures of the traditional screening system. Furthermore, it drives many of those who are fertile but would nonetheless be interested in adoption into the world of biologic parenting. Straight singles and gay singles and couples meet with no real restrictions if they seek to form families by reproduction, either naturally or with the help of reproductive technology. Even assuming that the government has a valid interest in promoting a traditional model of the family, this interest is not served by driving the socially unorthodox away from adoptive and into biologic parenting.
It is hard to identify any way in which the current system furthers the goal of ensuring children the best homes. What is clear is that it deprives many children altogether of the homes they need.
THE ADOPTION ALTERNATIVE
Adoptive family relationships are often built on a foundation of human misery. Birth parents generally surrender children for adoption or abandon them because they feel forced to do so by poverty, discrimination or the chaos that results from war or some other disaster. Many of those interested in adoption feel forced into it by infertility. In an ideal world, we would eliminate the social ills that force some to give up the children they bear and that deprive others of their fertility. But in the world in which we live today and will live tomorrow, these social ills do and will exist. Adoption should be understood as an institution that works well for birth parents, for the infertile, and for children.
But adoption should not be seen simply as a partial solution for some of the world's social ills. It should be understood as a positive alternative to the blood-based family. Adoption creates a family that in important ways is not "nuclear." It creates a family that is connected to another family, the birth family, and often to different cultures and different racial, ethnic, and national groups. Adoptive families have much to teach us about the meaning of parenting and about the value for families of connection with the larger community.
The politics of adoption is complex. Traditionalists often portray themselves as pro-adoption but tend to promote adoption simply as a preferred alternative to abortion. They do little to support adoption as a legitimate choice, either for the infertile who want to parent or for women who give birth but do not want to parent.
Progressives often voice concern with adoption's potential for exploitation of the poor and single birth mother by the well-off adoptive couple, exploitation of racial and ethnic minority groups by the dominant white cultures, and exploitation of the Third World by the industrialized West. But while adoption holds the potential for exploitation, it is not inherently exploitative. Adoption expands reproductive choice for women, and it gives children increased opportunities to grow up in nurturing homes.
Adoption adds to the choices enjoyed by the fertile, enabling those who become pregnant but do not abort and do not want to parent to give their children to others for parenting. We could add to the sense of choice by constructing adoption so that a woman could make the decision to relinquish her child without undue guilt. It would be liberating for women and for their children if we were to enable birth parents to think more positively about giving their children to those who are in a better position to provide the nurturing piece of parenting. Adoption, of course, also adds to the choices enjoyed by the infertile. A more positive construction of adoption would help free the infertile from the obsession to restore their sense of personhood by obtaining a medical fix.
We need to expand the concept of reproductive rights to include adoption rights: the birth mother's right to give up her child, the infertile woman's right to parent the child who has no parent, and the child's right to a home. The twin stigmas that surround adoption and infertility shape and constrain choice in ways that promote a traditional understanding of women's roles. Anti-abortion forces have pushed adoption as the only appropriate route for the woman who does not want or feel able to raise the child she is carrying. They have helped create the impression that to be pro-adoption is to be anti-abortion. But there is no necessary inconsistency between abortion rights and adoption rights, and we should not let abortion opponents hoodwink us so easily. Women should be free to choose whether to carry a child to term or to abort and free to choose whether to raise a child or give it up for others to raise. True reproductive freedom includes all these choices.
Progressives should recognize that adoption is not the cause of socioeconomic disadvantages that result in some people and some groups and some countries producing children that they are unable to care for. And they should recognize that while children are often termed "precious resources," it does not make sense to think of them that way. Giving up children, like deciding to abort, may be the best choice among the options available at a particular time. Also, children deserve to be treated as human beings with their own entitlements, rather than as resources in which adult individuals and communities have a property interest. From the child's perspective, being given up means being given a chance at a permanent nurturing home.
It makes no sense for a society that thinks of itself as sane and humane to drive people in the direction of child production rather than adoption. It makes no sense for children--those who have already been born and who will grow up without homes unless they are adopted. A sane and humane society should encourage people to provide for these existing children rather than bring more children into the world.
It makes no sense for adults either. Of course infertile people are begging for treatment, and of course those who manage to produce a child will say it has all been worth it. But they have been conditioned to feel that pregnancy and childbirth are the only solutions to their problem. Those who give birth cannot know what they would have done with the years spent in doctors' offices or what the experience of parenting an adopted child would have been. Moreover, most people who go down the treatment road will not succeed in producing a child. A 1988 Office of Technology Assessment report, "Infertility: Medical and Social Choices," estimates that only about half of those who pursue an extensive series of treatment programs, including tubal surgery and two IVF cycles, will produce children. Of those who do not, some will move on to adoption. They will often ask themselves later why they wasted all those years on the treatment treadmill. But most unsuccessful infertility patients will never become adoptive parents. Many will find that after years of struggling to conquer infertility, they are too old, too tired, too poor, or too broken in spirit to begin another uphill battle. And that is what adoption is.
We need to correct the biologic bias to give children a better chance and to give adults more genuine choices. We need to restructure our understanding of infertility and parenting. We need to make counseling available on a widespread basis to those suffering from infertility so that early in their struggles they can begin to deal with feelings of loss and inadequacy, can try to unravel what part of their pain, if any, relates to a desire to parent, and can begin to puzzle out what parenting is and should be about. We need to make meaningful information about various parenting options available early. Counseling and information should come from groups that are not tied to or part of any medical establishment. We need to create new support organizations for the infertile. Adoption agencies and organizations should become adoption advocates active in outreach efforts.
We also need radically to reform the regulatory system that structures adoption. Adoption should not look like an uphill struggle. We need to change our laws and policies so they facilitate rather than impede the process of matching people who want to parent with children who need homes. And we need simultaneously to question current practices that push the infertile to pursue treatment.
Adoption generally works to expand life opportunities for birth mothers, for the infertile, and for children in need of nurturing homes. It would work even better if we eliminated the stigma and reformed the restrictive regulation that shapes adoption as we know it today.