Adoption in the Age of Reproductive Technology

Posted: 3 Feb 2004

See all articles by Susan Frelich Appleton

Susan Frelich Appleton

Washington University in St. Louis - School of Law

Abstract

Adoption law has changed dramatically in recent years, with noteworthy developments such as open adoption, access to previously confidential adoption records, second-parent adoption, wrongful-adoption suits, and increasing access to transracial and international adoptions, not to mention high-profile litigation pitting birth parents against adoptive parents. The emergence of new rules governing adoption, moreover, has coincided with another significant shift in context for contemporary adoption. The social meaning of adoption has been transformed as the result of an increasingly wide range of medical interventions known as assisted reproductive technologies - ARTs for short. Besides the now accepted use of in vitro fertilization, artificial (or alternative) insemination, surrogacy arrangements, and ovum donation, consider recent stories in the popular press about the advent of ovarian transplants, the pros and cons of reproductive cloning, and the practice of "embryo adoption." While the conventional wisdom emphasizes adoption's focus on child welfare, which justifies considerable state regulation of the process, a laissez-faire approach prevails for ARTs, based on a legal lineage of reproductive choice and autonomy in medical decisions.

Part of a symposium on "Public and Private Faces of Family Law," this paper explores how the rise of ARTs affects our understanding of adoption. The paper begins with two stories of origin - that is, two stories suggesting that ARTs have changed how we think about adoption and thus prompting this inquiry. The second part, which relies on the work of adoption historians, shows how adoption promoters advanced their cause by constructing a need for children, specifically white infants, among the infertile. The next part demonstrates how ARTs satisfy such needs more effectively than adoption, given socially constructed preferences, prevailing legal rules, and the marketing of ARTs. The fourth part examines more closely the child-welfare objective that purports to distinguish adoption from ARTs, noting contested interpretations of this objective and considering today's popular rhetoric of "embryo adoption."

Although the foregoing analysis suggests that the rise of ARTs has undermined adoption and devalued its social meaning, ARTs are here to stay. Given this reality, the paper concludes with a look at the ways ARTs might, in fact, advance adoption and its child-centered humanitarian aspirations. First, ARTs have helped nontraditional families flourish and have made such families more familiar. In turn, such families offer new opportunities for adoptive placements for children who need homes. Second, the development of new ARTs in response to specific legal obstacles reinforces the message of adoption advocates who criticize the disincentives created by existing adoption regulations. Third, the successful marketing of ARTs offers useful lessons for adoption, with emphasis not only on creating a demand for children but also on more careful consideration of supply; this point builds on critiques claiming that the state too readily removes children from families of origin. Finally, and perhaps paradoxically, ARTs help bring us to an understanding of parenting that comes very close to the one adoption advocates long have urged - in which one's "own" child refers to a relationship created by care and function, not biology or genetics.

Keywords: adoption, assisted reproduction, child welfare, families

Suggested Citation

Appleton, Susan Frelich, Adoption in the Age of Reproductive Technology. University of Chicagl Legal Forum, p. 393, 2004. Available at SSRN: https://ssrn.com/abstract=490642

Susan Frelich Appleton (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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