In the United States, the elevated incidence of children living apart from their biological father or mother, or both, raises the question of children’s “rights” or “interests” in knowing and/or being reared by their biological parents or kin. The situations raising the question are extraordinarily varied, and the proposed answers—whether in the form of existing law, policies, or customary practices—are inconsistent, due to divergent histories and contemporary sensibilities concerning each. A univocal future response is also unlikely. At the same time, as society learns how children fare in each of these situations, it is worth considering the principles that might inform future policies.
Throughout U.S. history, children have regularly been adopted by non-relatives. They have also experienced one parent’s remarriage after divorce or the death of a spouse. Many children have also been born outside of marriage and experienced highly variable amounts of interaction with the noncustodial parent, usually the father.
What is new today, as compared with even 50 years ago, is a dramatically higher rate of nonmarital births. There is also a higher rate of divorce, combined with more geographic mobility following divorce. Since the first U.S. “test tube baby” in 1981, there is also a flourishing assisted reproductive technologies industry (ART) in the U.S., which is nearly free of legal restrictions regarding the marital state of clients, or the purchase and sale of eggs, sperm, and embryos on the basis of the buyer’s inclinations. Finally, there are the neuralgic areas of interracial adoption—especially involving African-American children by non-African-American parents, and children with Native American heritage.
As noted above, different historical circumstance and contemporary sensibilities have led to different rules and practices for many of these different cases. In the adoption arena, for example, the general movement is toward more transparency respecting parental origins: there are more “open adoptions” involving ongoing relationships between a child and his or her birth mother; and more state laws which allow children to learn the identity of their birth parents or at least some identifying information, albeit in some states birth parents can sign a no-contact veto in advance. Experts suggest that these developments point to the increased power of birth mothers in an adoption marketplace marked by relatively few available children, following both the legalization of abortion and the drastically reduced stigma of unmarried parenthood.
Interracial adoptions involving Native American and African American children take place against unique and troubling backdrops. In the case of the former, this refers not only to the history of armed conflict between U.S. troops and Native Americans, but also to the government-directed removal of Native American children from their families in both the nineteenth and twentieth centuries in order to forcibly alter their cultural habits. In the case of African-Americans, of course, the backdrop is our history of slavery. Marriages between slaves were often banned or deliberately broken, and parents and children forcibly separated. Thereafter came the legacy of Jim Crow and other economic, social, and personal discrimination, all of which still today can be linked to family fracture in African American communities.
Regarding Native American children, federal law, specifically The Indian Child Welfare Act (ICWA), is quite protective of their bonds with their biological parents, extended families, and tribes. Several recent cases have made the news, such as the return of a child—reared five years by her foster parents—to relatives of her biologically part-Native American father. In a 2013 U. S Supreme Court decision, a Cherokee father was deemed to have relinquished custody of his child and forfeited the protection of the ICWA. This decision in Adoptive Couple v. Baby Girl (2013) led U.S. Supreme Court Justice Sonia Sotomayor, in dissent, to pen an extended reflection about the possibility that all children have a constitutional right to a relationship with their biological parents. She argued for the “principle, recognized in our cases, that the biological bond between parent and child is meaningful.”1
Justice Sotomayor continued with a review of both state custody and adoption laws, and federal cases, pointing to the possible existence of a constitutional right for children:
These rules recognize that biological fathers have a valid interest in a relationship with their child. See supra, at 2574 – 2575. And children have a reciprocal interest in knowing their biological parents. See Santosky, 455 U.S., at 760–761, n. 11, 102 S.Ct. 1388 (describing the foreclosure of a newborn child's opportunity to “ever know his natural parents” as a “los[s] [that] cannot be measured”). These rules also reflect the understanding that the biological bond between a parent and a child is a strong foundation on which a stable and caring relationship may be built. Many jurisdictions apply a custodial preference for a fit natural parent over a party lacking this biological link. See, e.g., Ex parte Terry, 494 So.2d 628, 632 (Ala.1986); Appeal of H. R., 581 A.2d 1141, 1177 (D.C.1990) (opinion of Ferren, J.); Stuhr v. Stuhr, 240 Neb. 239, 245(1992); In re Michael B., 80 N.Y.2d 299, 309 (1992). Cf. Smith v. Organization of Foster Families For Equality & Reform, 431 U.S. 816, 845, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (distinguishing a natural parent's “liberty interest in family privacy,” which has its source “in intrinsic human rights,” with a foster parent's parallel interest in his or her relationship with a child, which has its “origins in an arrangement in which the State has been a partner from the outset”). This preference is founded in the “presumption that fit parents act in the best interests of their children.” Troxel v. Granville, 530 U.S. 57, 68, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). “‘[H]istorically [the law] has recognized that natural bonds of affection [will] lead parents' ” to promote their child's well-being. Ibid. (quoting Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Id. at 2582.
Other Justices from time to time have written in similar fashion. In a suit wherein grandparents sought visitation rights with their grandchildren, Troxel v. Granville, (2000), Justice Stevens wrote that “[w]hile this Court has not yet had occasion to elucidate the nature of a child's liberty interests in preserving established familial or family-like bonds, … it seems to me extremely likely that, to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.”2
In the case of interracial adoptions involving African-American children, federal law (which has swung back and forth like a pendulum in this area) is concerned with not delaying or denying placement based on the child’s race, but continues to draw fierce criticism from African American and other child-welfare groups, who protest in the name of children’s needs to connect with the culture of their genetic kin. Relatedly, although courts generally reject the use of race as a category in custody decisions [see for example Palmore v. Sidoti]3 as a matter of the constitutional Equal Protection guarantee, they might look favorably upon the parent who will best assist the child in preserving a link with a particular racial or national heritage—which, for example, in the case of an Asian or part-Asian child, would favor the Asian parent, or the parent who pursues Asian cultural opportunities.
As for children residentially separated from a parent due to divorce or nonmarital birth, courts and legislatures are increasingly fond of “joint custody,” or liberal second-parent visitation in the case of sole custody. There are many reasons for this: new sensibilities about fathers’ abilities and interests in their children; new information about unique contributions to children by fathers as distinguished from mothers; the belief that a responsible and involved father will more likely pay child support; and a sense of fairness to both sexes of parents.
Because the number of children born as a result of ART is growing, a significant number of U.S. children will have no legal recourse to discover their biological origins.
With respect to the unregulated ART industry, laws and practices are extremely different from all of the above. U.S. law in every state permits biological-donor mothers and fathers to contract to be free of any obligations to their offspring. Only Washington State has a law allowing children to determine the identity of the sperm donor on the child’s 18th birthday, but the law also allows a donor to excuse himself in advance. Because the number of children born as a result of ART is growing, and will grow a great deal more in the context of legal same-sex marriage, a significant number of U.S. children will have no legal recourse to discover their biological origins without significant changes in public policy.
This whirlwind tour through the law and practices regarding children’s knowledge of and relationships with their parents and kin indicates the internal inconsistencies that exist. Children’s rights or interests in knowing their own parents are affected by matters as diverse as histories of discrimination, fluctuating beliefs about the importance of cultural identity, the relative scarcity of adoptive children, adults’ wishes, developing notions about the importance of fathers, fairness between mothers and fathers, and incentivizing the payment of child support.
Even this list, however, neglects principles which might bear on the general question: Do children have a right or interest in knowing and being in a relationship with their own mother and father and extended kin whenever possible, no matter the circumstances under which these relationships were disrupted?
Scholars have suggested numerous possible principles to answer this question. For example, one possibility is to gauge the strength of the child’s desires. These scholars would pay attention, therefore, to the number of children seeking information about their biological families online and through other avenues. And their numbers are growing. Even the federal government provides handbooks for the approximately 50 percent of adoptees it estimates are searching for their birth parents. And dozens of websites have arisen allowing the children of sperm donors to collaborate in order to discover their biological fathers.
One might also inquire about the overall well-being and happiness (and there are many and contested ways to measure this) of children who do not have relationships with or knowledge of their parent(s) or kin, while also controlling for other factors which might impact these measures.
Finally, some scholars would want any inquiries in this area to balance children’s needs and interests with adult wishes regarding parenting and privacy. At the same time, others would argue that where adoption is concerned (and perhaps also ART), the law should take a firm stance in favor of finding parents for children-in-need, versus finding or creating children for adults who wish to have them.
Helen Alvare’ is a Professor of Law at George Mason University School of Law, and the co-founder of Women Speak for Themselves.
2. Troxel v. Granville, 530 U.S. 57 (2000), Id. at 88.
3. Palmore v. Sidoti, 466 U.S. 429 (1984).