Law professors talk a lot about the legitimacy of the Supreme Court but they should guard their own legitimacy as well.
As if 2020 hasn’t been contentious and stressful enough, the US is now in the middle of an unexpected and divisive Supreme Court nomination weeks before a presidential election. President Trump has nominated Judge Amy Coney Barrett to the Court. Her legal record, articles, opinions, and family life are now being combed for clues as to how she might act once on the court and for potential ammunition headed into her confirmation fight.
Interestingly, one aspect of her family life has set off a controversy that may be a surprise to people who haven’t followed the issue closely. Judge Barrett has two adopted children from Haiti who are black. There was a time when any mixed-race family, biological or adopted, would have raised eyebrows and almost certainly invited scorn and exclusion because of prejudice. Of course, it’s beyond the pale today for people to oppose mixed-race biological families.
Given this society-wide move away from a once common racist prejudice, you might be surprised to hear that you can openly accuse parents who adopt children of a different race of engaging in racism. Boston University professor Ibram X. Kendi, along with some other public figures, compared the process of transracial adoption to colonization on Twitter and suggested that the motives of “some” white parents were to “‘civilize’ these ‘savage’ children in the ‘superior’ ways of White people . . . while cutting the biological parents of these children out of the picture of humanity.” On this view, adoptions in which parents voluntarily decide to take on the emotional, financial, and practical challenges of raising an orphaned child or one without a stable home, often with special emotional and/or physical challenges and living under state care, are actually a nefarious scheme of racism. What is the basis for this bizarre and outlandish claim?
One root is the UN’s current convention on international adoption, which suggests in subtler but no less ridiculous terms that transracial adoption needs to be re-evaluated because of the potential psychological and emotional damage done to the adoptees. While some public intellectuals hold biological families to one standard, they apparently hold adopted families to another. As we shall see, adoption was part of the long road America has taken to breaking down racial barriers and stereotypes. Mixed-race adoption was an important step toward overcoming legitimately racist views that were common in the middle of the 20th century. Now, as we teeter back toward a world of categories and separation based on race, orphaned children in the developing world are losing one of the few chances they have to escape the almost unimaginably difficult circumstances they face. They are losing this possible path to a decent life with wealthier parents who actually want to raise them because of flawed and, ultimately for them, fatal thinking about what is best for them. Living in the “correct” cultural context, often in poverty, alone, and on the streets, is apparently better than living with “white,” materialistic American parents who love them.
Adoption in America
Adoption, in one form or another, has a long history in the United States. Beginning in the mid 18th century, it was common for children to be “placed” into substitute families with the goal of having them acquire a useful skill. These children were old enough to contribute to the economy of their substitute families and eventually left those households as they moved into adulthood. But after World War I, Americans began to view kids less instrumentally and more for sentimental reasons. As Brian Paul Gill documents, adoption social workers wanted to raise their professional status and thus strove to find the “best” family for a child based on their professional expertise. This led to the rise of placing adoptive children in racially, religiously, and intellectually similar families. Make no mistake that race was a major factor in deciding where kids went: In California in the 1940s and 50s, among 91 adoption agencies, there are no documented cases of children of one race being placed in the home of parents of a different race. In New York, agencies occasionally encountered mixed-race children from Jewish and black parents. Those children were placed in black households. Racism was the norm.
As Rachel Rains Winslow documents in her book The Best Possible Immigrants, international adoption by American families has been a popular public policy since the end of World War II because of the alignment of various domestic and international interests. Domestic adoption exploded after the end of World War II as the nation, and most notably the Baby Boomers, moved toward freer sexual practices. But changes in the nature of all adoptions in the US had started before the end of World War II as women, increasingly, moved into the workforce. As men and women interacted in the workplace more frequently, they also became more involved sexually. At the beginning of the 1960s, before nationally legal and widely available abortion-on-demand, and before greater access to and use of contraceptives, there were more unplanned pregnancies domestically. After the death and destruction of World War II, orphaned children in Europe combined with out of wedlock births in the US created the conditions for a boom in adoptions of white children by white families who wanted to have kids but typically couldn’t. Adoption during this period was largely a private matter and remained so until the rise of the adoptee rights movement in the 1970s and 80s, when adoption became more publicly discussed and adoptees gained the right to find their birth parents.
The 1970s and 80s saw changes in the international and domestic adoption arena as the number of available white babies dwindled. The number of available non-white children, however, particularly after the end of the Vietnam War, grew substantially. Mixed-race children of Vietnamese women and American GI’s were widely adopted, and the prevailing social views about mixed-race families continued to move toward acceptance. Orphaned children in China and other countries also began to be adopted by American families as social norms evolved in conjunction with the Civil Rights Movement. Adoption was one of the factors that helped move American society toward accepting mixed-race families.
One might think that the story of international adoption would end there. The United States has moved toward more racial acceptance. Parents are waiting longer to have children, which might contribute to older couples adopting if they are unable to have biological children. Many countries in the developing world have significant problems with orphans and abandoned children. International adoption seems like a reasonable “win-win”: many countries in the developing world lack the resources to handle children living without parents and there are plenty of US couples with financial means unable to have biological children of their own. Furthermore, psychological research has found that transracial adoptees have success in terms of adapting to their rather unusual circumstances. Foreign-born adoptees compared favorably to immigrant children, for example in terms of psychological adjustment to American society.
The Cultural Shifts Undermining Adoption
Two factors have short-circuited the international adoption phenomenon. The first has been the explosive growth of the fertility business. Advances in reproductive medical technology have created a robust business by enhancing the prospects for having biological children among couples that previously could not do so. This is a multi-billion dollar a year industry, and one that raises some interesting moral and ethical questions.
The second factor undermining international adoption is growing concern within the developing world and “international community” over the cultural desirability of allowing international adoptions. In fact, as noted above, a much less provocative version of Professor Kendi’s position is articulated by the current UN treaty on international adoption, the so-called “Hague” Convention on the international protection of children from 1993.
The Hague Convention on the surface had a laudable goal—to confirm that children first were in fact adoptable, which is to say that they had not been kidnapped or sold. There have been a few documented cases, in countries where the rule of law and decent governance are frequently lacking (see for example Vietnam, China, Russia, or Guatemala), of those in the adoption arena either kidnapping children or “selling” them, even orphans and homeless children, to American families, so tightening up processes is laudable.
But the Hague Convention went further: it took the position that a child could not be offered for international adoption until every attempt had been made to place the child in a home in their native country. Indeed, the Hague Convention is littered with language discussing the importance of cultural and ethnic backgrounds in child placement. It assumes that government officials are competent, reasonable judges of when a child has waited long enough before s/he can be offered to international parents. The UN and international community are arguing that orphaned children in the developing world face greater risks from the psychological impact of growing up in a mixed-race family in material comfort with stable parents in a nation loathed by international intellectuals—America—than they do living in orphanages or on the streets of the developing world.
One could certainly understand such a policy if there was widespread demand for domestic adoption in countries that have been active in international adoption. But there is a reason that, for example, Guatemala was so active in international adoption. It has a high birth rate, a huge informal economy, and an average lower-middle-class income of $2,740 per year. Few Guatemalan families are in a position to domestically adopt children.
The effects of the Hague Convention requirements can be seen clearly in the case of Guatemala. In research I have pursued with Eduardo Fernandez Luina, we tracked the impact of the passage of a 2009 adoption law in Guatemala. Foreign adoptions in the nation had been growing steadily since 1999 with around 1,000 adoptions that year. Between 2005 and 2008, nearly 17,000 children were adopted from Guatemala by American families. Guatemala then implemented a national law based on the Hague Convention and signed the accord. In the years since (2009 to 2019), fewer than 300 children have been adopted internationally from Guatemala.
Since the birth rate in Guatemala hasn’t changed, one should quite reasonably ask, where are those children? Undoubtedly many are now living in orphanages or on the streets. Some are now part of criminal groups, others are victims of sex trafficking. Most tragically, 41 teenage girls, many of whom would have been good candidates for adoption in 2009, died in a horrible fire at a government-run orphanage. While oversight in the Guatemala adoption process was probably too lax, the movement from thousands of children per year sent to willing families with better resources in the US to virtually none cannot be viewed as anything but a loss to both the families and the children. What’s more, the nation of Guatemala has hired hundreds of employees to staff their new adoption process—hundreds of government employees to oversee virtually nothing. It’s a classic case of government choking out private sector innovation and creating a tangled, inefficient bureaucracy that has cost many children their lives and futures.
Opponents of international adoption like Professor Kendi can only see the world in terms of color and race. Adoptive parents and the children they love are trying to move beyond that dated and unconstructive paradigm. Intellectuals of his ilk need to take a long look at the reality of life for an orphaned child in the developing world and set aside their knee-jerk reactions against simple acts of kindness. Instead of thinking first about the welfare of children living in difficult circumstances in countries that face social and economic challenges, we have let international organizations and the biases against American culture and society ruin the prospects that many orphaned children in the developing world have to live better and more productive lives. If we as a nation now accept bi-racial biological families, how can we justify this hypocritical bias against biracial adoption?
Grandstanding public intellectuals and busybody bureaucrats need to take a long look at themselves and ask: is it better for a parentless child to shine shoes on the streets in the developing world or to live with a flourishing family in the United States? So long as Kendi and company disparage the latter, they are literally throwing the babies out with the bathwater.