Finding Home in the World: A Deontological Theory of the Right to Be Adopted
New York Law School Law Review, Vol. 55, p. 701, 2010/11
Boston College Law School Legal Studies Research Paper No. 227
31 Pages Posted: 14 May 2011 Last revised: 8 Jul 2014
This article articulates the philosophical foundations of adoption as a human right with cosmopolitan reach. This view is contrasted to the heretofore predominant conception of adoption in the consequentialism-cum-charity paradigm. Five principal distinctions emerge between the new and the traditional conceptions of adoption. First, adoption as a human right acknowledges the fact that both proportionally and in absolute numbers biological parents commit more negligence and abuse against the young than adoptive parents do. Second, the human rights approach to adoption does not believe that mass prohibition or moratorium of biological and adoptive parenting is the solution to the problem of neglect and abuse of the young. Third, the human rights approach to adoption sees human rights violations through the veil of charitable rhetoric. In fact, the rhetoric of charity hides prejudice against adoption under precautionary rationales. The human rights paradigm of adoption understands the long established instrumentalization of adoption by country, politics, ethnicity, race, religion, and economic interests as well as by reductionist conceptions of child well-being. Fourth, and contrary to what the consequentialism-cum-charity preaches, the human rights paradigm of adoption favors only legal solutions to problems of neglect and abuse in the context of adoption that do not lead to systematic violations of fundamental human rights. Finally, the human rights paradigm of adoption connects the right to grow as son or daughter with the duty of states and international organizations, including their agents, to promote access of the unparented to adoption without the restrictions of borders, ethnicity, race, tribe or religion.
After the Introduction, Part II analyzes the consequentialist-cum-charity understanding of adoption. Part III expounds on what I call the value theory of rights. Part IV articulates the jurisprudential foundations of deontological adoption and the human right to be adopted. The reader will probably find that this article operates at a high level of theorization. This is by design, for high theory is needed in order to dispel the confusion and contradictions that plague first order analyses and opinions on the matter. And while the decision to take the theoretical path indicates my ambitions in the article, it also demarcates the limited attention the article is able to give to important details. Hopefully, others will rectify, supplement, and detail the foundations laid out in this work.
Keywords: Adoption, Children's Rights, Human Rights
JEL Classification: K10, K30, K39
Suggested Citation: Suggested Citation