Adoption Law

Adoption involves legal, psychological, and social consequences for birthparents, adoptive parents, and adoptees. Efforts to achieve uniformity in adoption law have been in part thwarted by a lack of consensus about how to balance the varied interests of these parties in contemporary adoptions. This article explores the tensions between traditional and present interpretations of six principal elements in adoption and suggests that the law must gradually “reconstruct” these elements to better serve the needs of children and their biological and adoptive parents. The legal process of adoption is regulated by a myriad of state, federal, and international laws. This complex regulatory system has produced great variation on even the most basic issues in adoption such as obtaining parental consent and ensuring confidentiality. Legal variation and complexity can make adoption needlessly difficult and uncertain. The premise of this paper is that more uniformity in adoption law is desirable and that securing this uniformity is thwarted not only by the multitiered regulation of adoption but also by persistent uncertainties about how to interpret and apply some of the basic elements of adoption in today’s complex social and family relationships. There is little or no consensus about how to balance the psychological and social needs of birthparents, adoptive parents, and adoptees. The basic elements of adoption must be reconstructed in light of the many different needs of today’s birthparents and adoptive families. This article first provides an overview of contemporary adoption— who is adopting and who is being adopted—and next reviews briefly efforts at achieving uniformity in adoption law. Then discussion turns to the six principal elements of adoption and the uncertainties and controversies surrounding them today. Overview of country for some children to be raised by Contemporary Adoption adults other than their biological parents, formal or legal adoption was not generally recognized before the 1850s.1 Today, only As a legal process, adoption in the state courts and, in some instances, Indian United States creates the status of parent tribal courts, are authorized to grant adopand child between individuals who are not tions. A judicial decree of adoption severs each other’s biological parent or child. the legal relationship between a child and Although it was never unusual in this the members of the child’s biological famThe Future of Children ADOPTION Vol. 3 • No. 1 Spring 1993 J o a n H . H o l l i n g e r , M.A., J.D., was professor of law at the University of Detroit School of Law at the time this article was written. During 1992-1993 she is a visiting professor at Boalt Hall School of Law, University of California, Berkeley and Golden Gate University School of Law in San Francisco. She is also edi tor and pr inc ipal author of Adoption Law and Practice, reporter for the proposed Uniform Adoption Act,