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Adoption Consents: Legal Incentives for Best Practices
Abstract
When a state places its legal imprimatur on the unmaking of one family and the making of another, the state should insure to the greatest extent possible that all the individuals involved have followed or have been afforded the best practices that ethics and humanity demand. The Uniform Adoption Act sets out commonly accepted goals of state adoption laws, among them the goals of protecting minor children against unnecessary separation from their birth parents and of ensuring that a decision by a birth parent to relinquish a minor child and consent to the childs adoption is informed and voluntary. With respect to achieving these goals in connection with services for mothers of newborn infants, the laws governing the timing of their consents and the provision of counseling to them can create powerful incentives for service providers to follow the best practices that characterize ethical and humane services. This is possible when the laws are based on an understanding that for mothers considering placing their children for adoption, skilled, unbiased counseling is invaluable; complete, well-communicated information is indispensable; and adequate time is, perhaps, the wisest counsellor of all.
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This Article traces the development of adoption law using recent scholarship in history and sociology, as well as nineteenth century legal sources. The early history of American adoption provides a novel and useful context to analyze the complicated relationships between "traditional" and "alternative" family forms. The Article discusses how judicial interpretations of the meaning of adoption were cabined by the traditional significance of blood relationships, and examines the treatment of adopted and biological children in three contexts: parental consent to adoption, inheritance, and the civil and criminal laws governing incest. The Article argues that the challenge today, as was true more than a century ago, is how to expand the meaning of family without destabilizing families. The contemporary debates on adoptive, single parent, and gay and lesbian families, as well as on the rights within families formed by new reproductive technologies, are grounded in this history; but the history also provides critical insights for structuring the legal response to these newly forming families. The Article examines post-adoption grandparent visitation disputes, single parents by choice, and gay and lesbian second parents. Finally, the Article concludes that "like" relationships should be treated similarly while respecting and accommodating the differences.