Tuesday, May 31, 2016
Each month we will post relevant articles from BePress and SSRN for your enjoyment. No representation that the list is complete, so if you want to call articles to our attention, please do so!
Unwed Mothers and Putative Fathers vis-a-vis Guardianship Rights of Children: A Study
International Journal of Current Research, Vol. 8, Issue 4, pp. 29919-29921, April 2016
Bharati Vidyapeeth University - New Law College
Date Posted: May 28, 2016
Accepted Paper Series
Adoption and Same-Sex Couples: New Rights in European Constitutional Space after the Ruling X and Others v. Austria
DIREITOS FUNDAMENTAIS & JUSTIÇA no.29/2014,
University of Verona - Department of Law
Date Posted: May 27, 2016
Accepted Paper Series
The Kidnapping of Edgardo Mortara: Contemporary Lessons in the Child Welfare Wars
Villanova Law Review, Vol. 45, No. 245, 2000
Bruce A. Boyer and Steven Lubet
Loyola University Chicago School of Law and Northwestern University - Pritzker School of Law
Date Posted: May 26, 2016
Accepted Paper Series
Wizards of Washington The United States Supreme Court on Adoptive Couple v. Baby Girl
Date Posted: May 19, 2016
Working Paper Series
Adoption in China Past, Present and Yet to Come
Georgia Journal of International and Comparative Law, Forthcoming
Indiana University Robert H. McKinney School of Law
Date Posted: May 08, 2016
Accepted Paper Series
Modern Families: Should Children Be Able to Have More than Two Parents Recorded on Their Birth Certificates?
Victoria University Law and Justice Journal (2015) 5 (1)
Paula Gerber and Phoebe Irving Lindner
Monash University - Faculty of Law and Monash Univeristy
Date Posted: May 03, 2016
Accepted Paper Series
Monday, May 30, 2016
From Sputnik International, a statement from Russian children's rights commissioner Pavel Astakhov:
In late 2012, the Russian parliament approved legislation dubbed the Dima Yakovlev law, which stipulated a ban on the adoption of Russian children by US nationals. The law is named after a Russian toddler who died of a heatstroke in 2008 after his adoptive US father left him locked up in an overheated car for hours.
"The US side insists on discussing the consequences of lifting the ban on the adoption of Russian children by Americans. We agree to discuss the issue, but today, we have no basis to resume US adoptions, especially given that they have not made the system more transparent," Astakhov said in an interview with RIA Novosti.
Saturday, May 28, 2016
On March 7, 2016, a unanimous U.S. Supreme Court reversed the Alabama's Supreme Court's refusal to recognize the out-of-state adoption of a lesbian parent in V.L. v. E.L. Now, the Alabama Supreme Court has annulled its previous ruling, according to the AP. The per curiam opinion is brief:
In accordance with V.L. v. E.L., 577 U.S. ___, 136 S.Ct.1017 (2016), we vacate the September 18, 2015, Judgment of this Court holding that the Court of Civil Appeals and the Jefferson Family Court erred in giving full faith and credit to the May 30, 2007, adoption decree entered by the Superior Court of Fulton County, Georgia, declaring V.L. the adoptive parent of her then same-sex partner E.L.’s three children. Ex parte E.L., [Ms. 11405 95, Sept.18, 2015] ___ So.3d ___ (Ala. 2015). In V.L., the United States Supreme Court held that the adoption decree appeared on its face to have been rendered by a court of competent jurisdiction and that that presumption of jurisdiction had not been rebutted. Inasmuch as there is no merit in E.L.’s other arguments asking this Court not to enforce the adoption decree, we affirm the judgment of the Court of Civil Appeals.
The fact that a state supreme court accepted a ruling of the U.S. Supreme Court would not ordinarily be newsworthy. But given the fact that Alabama Supreme Court Chief Justice Roy Moore issued an order telling state officials that they must not follow Obergefell v. Hodges and issue marriage licenses to gay couples, it is a relief to see this resolution. Since issuing that order, Justice Moore was suspended amid ethics charges that he “'flagrantly disregarded and abused his authority' in ordering the state’s probate judges to refuse applications for marriage licenses by same-sex couples."
The U.S. Supreme Court's ruling in V.L. v. E.L. is important for all who adopt in one state and move to another state, because it is a fullthroated pronouncement that the full faith and credit clause of the U.S. Constitution will apply.
Edited by Rowena Fong & Ruth G. McRoy, Transracial and Intercountry Adoptions: Cultural Guidance for Professionals is a great backgrounder for professionals of all types, including lawyers. It's important for lawyers to understand all the issues -- not just the legal issues -- faced by birth parents, adoptive parents and adopted persons in order to be competent legal advisors and counselors. The essays in this book from multiple professional perspectives will help in this regard. Published by the Columbia University Press, the book is described as follows:
With essays by well-known adoption practitioners and researchers who source empirical research and practical knowledge, this volume addresses key developmental, cultural, health, and behavioral issues in the transracial and international adoption process and provides recommendations for avoiding fraud and techniques for navigating domestic and foreign adoption laws. The text details the history, policy, and service requirements relating to white, African American, Asian American, Latino and Mexican American, and Native American children and adoptive families. It addresses specific problems faced by adoptive families with children and youth from China, Russia, Ethiopia, India, Korea, and Guatemala, and offers targeted guidance on ethnic identity formation, trauma, mental health treatment, and the challenges of gay or lesbian adoptions.
FYI, I reviewed a pre-publication copy of the book and I'm blurbed on the cover saying: "This excellent book notes the increasing diversity in American families and will be a valuable resource for mental health practitioners, medical doctors, teachers, and child welfare workers."
Friday, May 27, 2016
The Boston Globe Editorial Board weighs in on proposed Massachusetts legislation to reopen the doughnut hole that blocks access to original birth certificates for adoptees born between July 17, 1974, and Jan. 1, 2008, a hole created by 1974 legislation that closed records and 2008 legislation that reopened them -- but did not apply retroactively. "That means only people born on either side of the 34-year period between the two laws . . . can get an original birth certificate without a court ruling."
The editorial argues:
Beyond the inherent civil right to personal identity, being able to get an original birth record can help adopted people chronicle their biological parents’ physical and mental health histories — information that potentially could save lives.
In the past, opponents of moves to open up access to birth certificates have cited promises of confidentiality made to birth parents. But Adam Pertman, chief executive of the nonprofit National Center on Adoption and Permanency, says no documentation has ever been produced that shows that to be true, nor is it even possible to extend such a sweeping long-term protection. Birth parents years ago “weren’t promised anonymity,” Pertman says. “It was forced upon them.” A statistical study by the American Adoption Congress found that only 1 out of 2,000 birth mothers requested no contact with a child they put up for adoption.
Another objection — that making birth certificates easier to get will result in more pregnant women opting for abortion over adoption — is not backed up by what has happened in states where access is not restricted, according to Access Massachusetts, a grass-roots group that has been working for passage of the state bill now under consideration.
Such dissent has dissipated over time as thinking about adoption has evolved, and support for the Massachusetts legislation appears solid. Adoptees, no matter when they were born, deserve the same right to their personal information that everyone else takes for granted. They shouldn’t have to wait any longer.
Thursday, May 26, 2016
To Save the Children of Korea: The Cold War Origins of International Adoption, by Arissa H. Oh, published by Stanford University Press, explores how Korea was "the place where organized, systematic international adoption was born." The book is crucial to understanding both the history of international adoption and how international adoption operates today. The following blurb from the SUP website explains it well:
Arissa Oh's fascinating and gracefully written transnational study provides the contextualization and theorization of international adoption that has been missing from the literature. Through the lens of Korean adoption, Oh shows us how domestic politics and desires are intertwined with geopolitical relationships and aims, expanding our understanding of Cold War liberalism and even Cold War era postcolonial modernization."
—Naoko Shibusawa, Brown University
A measure that would give Illinois adoptees more information about why they were adopted is heading to the governor's desk.
The plan sponsored by Democratic state Rep. Ann Williams and state Sen. Toi Hutchinson would require state adoption agencies to give adoptees age 18 and older information detailing the reasons for the adoption.
Illinois Senate members approved the plan Tuesday on a 53-0 vote. It now goes to Gov. Bruce Rauner.
Supporters say it is important for adoptees to have information about the nature of their adoption. But some cautioned that expanding rights to adoption information can infringe on birth parent confidentiality. The proposal only discloses non-identifying information about the biological parents.
Information about the HB4590 can be found at the Illinois General Assembly site here.
Wednesday, May 25, 2016
Elizabeth Bartholet, Harvard Law professor, advances her argument, in the context of newly proposed federal legislation, that there is an international human right for children to be adopted internationally rather than be in institutional care in a Boston Globe op-ed yesterday:
Republican Representative Tom Marino of Pennsylvania and Democratic co-sponsors David Cicilline of Rhode Island, Jim McDermott of Washington, and Brian Higgins of New York introduced a bill last week that would put the United States in the position of supporting — rather than undermining — the human rights of children worldwide. It is a simple bill, consisting of only a few lines of text and requiring no new resources. But it would have a profound effect on one of the most significant human rights crises of our time.
The bill would essentially tell the State Department to stop discriminating against children through its refusal to consider the violations of human rights inherent in their unnecessary institutionalization. . . .
But countries regularly shut down international adoption, or create barriers that restrict it to only a lucky few. Unfortunately, the State Department has in recent years joined with other forces to limit international adoption as a meaningful option for unparented children. The result has been the precipitous decline by 75 percent in the number of adoptions into the United States since 2004, and by more than 50 percent in the number international adoptions worldwide. This represents the deliberate and unnecessary denial to well over 20,000 children per year of their most fundamental human right other than life itself — the right to grow up with nurturing parents.
Of course, there really hasn't been recognition of a "right" to be adopted in international human rights instruments like the U.N. Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption, as Professor Bartholet seems to acknowledge in a published debate with Professor David Smolin:
The Convention on the Rights of the Child (CRC) and the Hague Convention on Intercountry Adoption (Hague Convention or HCIA) both defer to state sovereignty, leaving nation states free to ban international adoption altogether regardless of whether they can provide children with nurturing homes in the absence of such adoption. Both provide that if countries choose to allow international adoption, they should exercise a preference for placing children in-country. The CRC requires a more powerful in-country preference, mandating that in-country foster care and other “suitable” care be chosen over out-of-country adoption, and that “due regard … be paid to the desirability of continuity in a child’s upbringing and to the child’s ethnic, religious, cultural and linguistic background” (Bartholet, 2011). The HCIA requires “due consideration” of in-country placement before out-of-country, but prioritizes international adoption over any in-country placement except adoption and other “family” care (Bartholet, 2011).
Still, she argues that there should be such a right, and that it should trump the international human rights actually recognized in the CRC, including the right to know one's own parents. (I discussed the CRC and the HCIA with regard to openness in international adoption here.)
Mastering Adoption Law and Policy, by Cynthia Hawkins DeBose (my co-blogger -- and no, she doesn't know I'm posting this), is a great resource for academics, practitioners and law students. Carolina Academic Press, the publisher, describes the book as follows:
This title is the first of its kind — it is a deskbook detailing the intricacies of U.S. domestic adoption law and policy. This deskbook is geared for use as a reference by the adoption law attorney, adoption professional, and law students. This book, written in clear and concise language, provides an in-depth discussion and analysis of adoption law. In addition to 14 chapters addressing the most critical topics of adoption law and policy (including, for example, consent, ICWA and TRA), the guide offers a chart of the current statutes from all 50 states, a detailed bibliography, a discussion of key Federal legislation, and much more.
This book is a must have for all family law attorneys in general, and all adoption attorneys and adoption professionals in particular.
The coverage for this book is amazing, including chapters on the history of adoption and the child welfare system/foster care, open adoption, same sex adoption, step-parent and second parent adoption, kinship care and adoption, wrongful adoption tort and adoption reforms. The chapter on embryo adoption addresses a new area of law about which little has been written to date. One chapter discusses the 2007 National Survey of Adoptive Parents, a rich resource that was the first-ever national survey about adoption. The appendices are a one-stop-shopping bonanza of state laws, federal statutes and the Uniform Adoption Act.
A must-have for the family law practitioner/professor's bookshelf.
Monday, May 23, 2016
The IndyStar reports:
Despite resistance from state officials, an Indiana nonprofit has installed its first newborn safety incubator, a tool meant to temporarily shelter babies abandoned by their parents.
Safe Haven Baby Boxes activated the incubator this week at a fire station in Woodburn, a small city in northeastern Indiana near Fort Wayne. The organization plans to activate its second baby box Thursday at the Cool Spring Fire Department in Michigan City.
"Anything we can do to make that specific situation better," said Wes Rogers, captain at the Cool Spring Fire Department. "We try to do it every day with running our calls, fighting fires and helping sick people. This is just another way to help."
Indiana's Safe Haven Law enables someone to give up an unwanted infant anonymously — without fear of arrest or prosecution. The adult may give up custody of a baby less than 30 days old to a hospital emergency room, fire station or police station.
Advocates say the incubators — padded, heated boxes that are rigged to notify emergency personnel when a baby is placed inside — provide parents a safe way to give up their infants without speaking to anyone and would deter parents from leaving babies in the woods or a trash can. But critics have questioned the cost and potential liability associated with using the boxes.
While the intention may be good, the Evan B. Donaldson Adoption Institute has highlighted concerns with safe-haven laws in their report, Unintended Consequences: ‘Safe Haven’ Laws Are Causing Problems, Not Solving Them:
In response to unsafe infant abandonments that place children at risk of harm or death, 42 states in the last three years have enacted so-called “safe haven” laws allowing legal, anonymous abandonment of newborns at designated sites. Because legislators have acted so quickly, usually in response to one or more well-publicized unsafe abandonments in their states, they typically have not studied the causes of abandonment before enacting these laws. Moreover, since few states are collecting any data to evaluate the efficacy of anonymous abandonment – or trying to determine if other alternatives might be effective – there is no evidence demonstrating that these laws solve the problem at which they are aimed.
In fact, available information suggests few babies are left at safe havens in states that provide them. Even when they have this option, girls and women continue to leave newborns in bathrooms, trash bins and parking lots. Furthermore, experts question whether the people using safe havens would otherwise have abandoned their babies unsafely. And there are indications these new laws lead to unintended consequences, including:
- encouraging women to conceal pregnancies, then abandon infants who otherwise would have been placed in adoptions through established legal procedures or would have been raised by biological parents or relatives;
- creating the opportunity for upset family members, disgruntled boyfriends, or others who have no legal rights, to abandon babies without the birth mothers’ consent;
- inducing abandonment by women who otherwise would not have done so because it seems “easier” than receiving parenting counseling or making an adoption plan;
- depriving biological fathers of their legal right to care for their sons or daughters even if they have the desire and personal resources to do so;
- ensuring that the children who are abandoned can never learn their genealogical or medical histories, even when the consequences for their health are dire;
- precluding the possibility of personal contact and/or the exchange of medical information between birth parents and children in the future; and
- sending a signal, especially to young people, that they do not have to assume responsibility for their actions and that deserting one’s children is acceptable.
And of course, the classic case of unintended consequences happened in Nebraska, where parents used the safe haven law to abandon teens and tweens
Sunday, May 22, 2016
There's an interesting book out by E. Wayne Carp, author of Family Matters: Secrecy and Disclosure in the History of Adoption and Adoption Politics: Bastard Nation and Ballot Initiative 58.
Titled Jean Paton and the Struggle to Reform American Adoption, the book continues his focus on reform movements to allow access to original birth certificates and other adoption records by adoptees and birth parents.
The University of Michigan Press describes the book as follows:
Jean Paton (1908–2002) fought tirelessly to reform American adoption and to overcome prejudice against adult adoptees and women who give birth out of wedlock. Paton wrote widely and passionately about the adoption experience, corresponded with policymakers as well as individual adoptees, promoted the psychological well-being of adoptees, and facilitated reunions between adoptees and their birth parents. This masterful biography brings to light the accomplishments of this neglected civil-rights pioneer, who paved the way for the explosive emergence of the adoption reform movement in the 1970s. Her unflagging efforts over five decades helped reverse harmful policies, practices, and laws concerning adoption and closed records, struggles that continue to this day.
An excellent review can be found at the American Historical Review.
Saturday, May 21, 2016
The Miami Herald reports that the ex-manager of a Malawian orphanage, Texan Gerald Campbell, has pleaded guilty to sexually abusing orphans at the orphanage:
A Texas man who managed an orphanage in Malawi has pleaded guilty to sexually abusing orphans at the East African facility.
Gerald Campbell pleaded guilty before a U.S. magistrate Wednesday in Midland, Texas, to one count of engaging in illicit sexual conduct in a foreign place. A Justice Department spokesman says the 66-year-old Odessa man could get up to 30 years in federal prison. Sentencing hasn't been scheduled yet.
Campbell admitted to sexually abusing eight orphans at the Victory Christian Children's Home in Malawi between 1997 and 2009. Campbell was general manager of the orphanage.
This might be a good time to point out an excellent article on a related topic, AIDS orphan tourism: A threat to young children in residential care, in Vulnerable Children and Youth Studies: An International Interdisciplinary Journal for Research, Policy and Care, which cautions against "orphan tourism." The abstract reads, in part, "This article advocates against the exploitation of especially vulnerable young children in sub-Saharan Africa for commercial gain by tour operators in the current growth of 'AIDS orphan tourism.'” The lack of screening of those who work in foreign orphanages puts children in danger of sexual abuse, as this case illustrates.
Friday, May 20, 2016
From Michigan Radio:
Legislation that would make it easier for step-parents to adopt their spouses' children is heading to Governor Snyder's desk.
A step-parent cannot adopt until the non-custodial parent's rights have been terminated.
For that to happen, if the non-custodial parent has not voluntarily agreed to termination, the custodial parent must show that for more than two years, the non-custodial parent has failed to provide child support and has not had contact with the children.
The legislation would reduce to one hearing what usually used to require two.
From the BBC, English Adoption law reform aims to speed up placements:
The Children and Social Work Bill, unveiled in the Queen's Speech, aims to reduce delays in placing children with an adoptive family.
The new law will also aim to improve social care standards across England. . . .
The government says the Children and Social Work Bill will "tip the balance in favour of permanent adoption, where that is the right thing for the child... and drive improvements in the social work profession by introducing more demanding professional standards and setting-up a specialist regulator for the profession".
The legislation aims to give young people leaving the care system more help, with a commitment by local authorities act as better "corporate parents", helping them when they make the transition into independent living.
From the Irish Legal News, Bill to revise adoption law goes before the [Irish] Dail:
Legislation to revise adoption law in the wake of the children’s referendum in 2012 is the first bill to go before the 32nd Dáil. . . .
It also provides for the adoption of a child by his or her step parent without the requirement for the child’s other parent to adopt his or her own child. Previously, if a parent and a step parent wanted to adopt, both the parent and the step parent had to apply to adopt – the parent became an ‘adopting parent’. Under this bill, the parent will continue to be a parent and the step parent will be an adoptive parent.
The bill also provides for couples who are civil partners or cohabitees to be eligible to apply to adopt a child.
Thursday, May 19, 2016
Each month we will post relevant articles from BePress and SSRN for your enjoyment. No representation that the list is complete, so if you want to call articles to our attention, please do so!
Biology, Genetics, Nurture, and the Law: The Expansion of the Legal Definition of Family to Include Three or More Parents
Nevada Law Journal, Vol. 16, No. 745, 2016
Myrisha S. Lewis
Twisted Interests: People in Interest of S.A.H. and the State of Open Adoptions in South Dakota
South Dakota Law Review, Vol. 42, No. 3, 1997
Thomas E. Simmons
University of South Dakota School of Law
Inter-Country Adoption and Its Judge-Centric Approach in Indian Legal System
The Lex Warrier Online Law Journal, 2014
National University of Study and Research in Law (NUSRL)
From Fretté to E.B.: The European Court of Human Rights on Gay and Lesbian Adoption
Law & Sexuality, Vol. 18, 2009, UGA Legal Studies Research Paper No. 2016-13, Dean Rusk International Center Research Paper No. 2016-06
Kathleen A. Doty
University of Georgia - Dean Rusk International Law Center
The 9th Biennial Adoption Initiative Conference: Myth and Reality in Adoption: Transforming Practice Through Lessons Learned, will be held June 9-11, 2016 at Montclair State University in Montclair, New Jersey. The Conference is described as follows:
For the 2016 conference, we will draw upon the lessons that the history of adoption and the practice of adoption have taught us. Over time, adoption practice has shifted from a practice focused upon social reform targeting marginalized members of society to a more modern practice in which adoption is marketed as both a form of family creation and as a form of rescue within a larger industry. These shifts in adoption practice have taken place largely at the behest of those wielding social and political power, whereas those most affected by adoption—children, their families, and their communities—have often had little to no power to affect these portrayals. The gap between myth and reality in adoption may create challenges for those who are impacted by actions outside of their agency, voice, and control.
For this conference, we will explore the ways in which adoption has been portrayed on multiple levels: personally, interpersonally, socially, and politically. Marketing, media, films, and music all portray adoption in various ways using both positive and negative lenses, but what have we learned from these portrayals? How have these portrayals contributed to the myths that exist about adoption, adoptees, birth parents, and adoptive parents? What information and “lessons” are needed to correct misinformation, assumptions, and biased judgments? Furthermore, how can adoption practice (e.g., adoption placement and post-adoption support) better inform and be transformed by replacing myths with realistic lived adoption knowledge and by drawing upon the lessons we have learned through the history of adoption practice? With these questions in mind, we seek proposals that address the connections and dissonances between adoption’s history, mythology, and lived reality, and which propose active guidelines for future practice.
It is an interdisciplinary conference, with a number of presentations directly related to adoption law. I will be presenting my research about birth fathers (a group traditionally invisible in adoption law).
Cynthia Hawkins DeBose (formerly Hawkins-León)
** 1985, J.D. -- Harvard Law School
** 1981, B.A. -- Wellesley College
** Sole Author -- Mastering Adoption Law & Policy (Carolina Academic Press, 2015) -- a desk reference for attorneys, law students, counselors, and social workers
** 10 years serving in all 3 branches of the District of Columbia Government -- including Agency GC; Administrative/Magistrate Judge
** Professor of Law, Stetson University College of Law (2004-present)
** Authored my first adoption law article in 1997 which began my 20 year commitment to adoption law & policy -- focusing on the delicate issue of trans-racial adoption
** Began teaching adoption law at Syracuse University College of Law in 1998 -- utilizing my own course materials; have taught the Seminar course for nearly 20 years
** Authored numerous law review articles over the years (see C.V. for list)
Tuesday, May 17, 2016
Welcome to the new Adoption Law Prof Blog! According to the 2010 U.S. Census, there were over 2 million adopted children in American homes at that time. Adoption law is a growing field, with increasing interest in the legal academy and among family law practitioners. We hope to address the myriad legal issues that affect adopted persons, birth families and adoptive families. We will be posting about relevant conferences, recent scholarship, news of interest to adoption, interesting cases – and anything else that is adoption-related!
Please contact us if you have adoption law-related information you would like us to post, or if you are interested in guest-blogging. We hope to build a vibrant and interactive community here, so we appreciate your input.
Hello! I'm very excited to be an editor for the Adoption Law Prof Blog. I'm a faculty member at the Texas A&M University School of Law, and have been teaching for over 25 years. In 2007, I created an Adoption Law class, and I'm still teaching it (using my own materials, which I am willing to share if anyone is interested). Some of my adoption law scholarship:
International Adoption & International Comity: When Is Adoption Repugnant?, 10 Tex. Wesleyan L. Rev. 311 (2004)
As you can see, my interests in Adoption Law are varied, though I am particularly interested in intercountry adoption.
As is the custom in adoption scholarship, I need to identify my place in the adoption triad: I am an adoptive parent of internationally adopted children.