New York Law School

Should Adoption Be Color-blind?

One of the most controversial topics in the field of family law is transracial adoption (“TRA”). While this term technically includes the practice of minority families adopting white children, the debate on TRA mostly centers around adoption of minority children by white families. Opponents of the practice claim that TRA deprives children of cultural identity because they do not have a role model of the same race. Proponents of TRA believe that the concern of maintaining a child’s racial identity can be addressed in other ways, and the paramount focus should be on placing the child in a loving adoptive home.

The topic of transracial adoption is one I am intimately familiar with. Two of my white father’s adopted siblings are black. My father often spoke about the identity issues they faced by having been adopted into a white family. While my unique perspective helps me understand the arguments of those against TRA, I often wonder – is there some middle ground in this debate, or will children adopted by parents of a different race always struggle to find some form of cultural identity? And further, considering our country’s foster care crisis, is it better for a child to languish in the foster care system rather than be placed with parents of a different race? The question is essentially this – do the benefits of TRA outweigh its disadvantages?

One important factor in the TRA debate is the foster care crisis in the United States. According to the Adoption and Foster Care Analysis and Reporting System, of the estimated 408,425 children in foster care in 2010, 29% were black, while 41% were white. While these numbers may not seem troubling at first glance,  it is important to note that the number of black children exiting the foster care system was much lower than that of white children. Of the total children who exited the foster care system in 2010, 43% were white while only 27% were black. These statistics show that while the percentages of white and black children in foster care may appear to be comparable, on the whole, black children languish in the foster care system longer than white children. Between 2000 and 2010, the number of black children in foster care generally decreased by about 10%. While this is certainly a positive change, the percentage of children in foster care from other minorities increased. Thus, there is a serious need for placement among children of all races, and TRA can be seen as a positive force in addressing this need.

In 1948, the first documented transracial adoption took place when a white family from Minnesota adopted a black child. Historically, TRA was banned due to racial bias, as was as any other type of interracial practice prior to desegregation, such as interracial marriage. However, two major factors led to a rise in acceptance of TRA. First, a large number of Asian-American children were in the United States after the Korean and Vietnam wars. The children were the offspring of serviceman deployed in those countries during the wars. Second, the civil rights movement brought about an increase in racial tolerance and awareness of the need for racial equality.

Though it has become somewhat more commonplace in recent years, TRA has nonetheless been met with opposition since the 1970s. In 1972, the National Association of Black Social Workers (“NABSW”), the group who has been most vocal in opposing TRA, published a “Position Paper” condemning transracial adoption. This paper argued that TRA prevents black children from developing a strong racial identity because they are deprived of black role models. The NABSW argued that a black child could only develop skills necessary to survive in a racist society with the guidance of a black parent. Thus, the NABSW claimed TRA causes a form of “cultural genocide,” whereby children are “stolen” from the black community and are never able to truly integrate into the white community. While the NABSW has removed the “genocide” reference from its policy statement in 1994, it still opposes transracial adoption in favor of same-race placement.

The Multiethnic Placement Act of 1994 (“MEPA”) was a major force for change in TRA practices. Prior to the MEPA, no federal law restricted the ability of a state to consider race in determining where to place a child for adoption. States regularly engaged in “race matching,” a practice by which adoptive children are placed only with families of the same race. Critics claimed that race matching exacerbated the disproportionate number of black children waiting to be adopted. Congress responded to this issue by enacting the MEPA, which prohibited officials from delaying or denying the placement of a child “solely on the basis of race.” However, the statute ironically promoted race matching because its language explicitly permitted race to be taken into consideration in the adoption process, merely stating that it could not be the sole reason for rejecting adoptive parents. In response to public outcry, in 1996 Congress amended the MEPA by enacting the Removal of Barriers of Interethnic Adoption Act, which deleted the “solely” language. Currently, the statute provides that no agency receiving federal funds may “(A) deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the person, or of the child, involved; or (B) delay or deny the placement of a child for adoption or into foster care, on the basis of the race, color, or national origin of the adoptive or foster parent, or the child, involved.”

Despite its amendment, the MEPA remains controversial among those who oppose the practice of TRA, as they believe it does not allow for a consideration of the best interests of the child, the predominant inquiry in most family law matters. Opponents take issue with the fact that, since the statute explicitly removed race as a factor in choosing an adoptive family, it permits racially insensitive white parents to adopt black children. Critics also argue that the statute allows otherwise unfit white parents to adopt black children, pointing out the fact that many potential black adoptive families are disqualified because of social service agencies’ use of criteria requiring a more upper-class income level and lifestyle, which favors white families.

Another area of particular concern in the TRA debate is adoption of Native American children. In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”), which was meant to address the aforementioned “cultural genocide,” in which minority children are placed with white families, arguably robbing them of their ethnic identity. This problem was especially prevalent among Native American children, where a massive number of Native American children were removed from their biological parents and 80-90% of these children were placed with white adoptive families.

The stated purpose of the ICWA is “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” The statute stipulates that, unless good cause is shown to the contrary, Native American children must be placed in foster care with either (1) a member of the Indian child’s extended family; (2) a foster home (either Indian or non-Indian) licensed by the Indian child’s tribe; or (3) a tribe-approved children’s institution.

The first case involving the ICWA came before the United States Supreme Court in 1989. In Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), a non-Indian couple appealed a decision that required the couple to surrender their adopted Native American twins to the jurisdiction of the tribe. The Court affirmed this decision under the ICWA. Justice Scalia has been quoted as saying that while the decision was clearly correct under the statute, it was the most difficult decision he has taken part in during his career.

The ICWA has again come before the Supreme Court, this time involving a South Carolina couple that was ordered to turn over a 27-month old girl they had cared for since birth to her biological father, whom the girl had never met. In that case, Adoptive Couple v. Baby Girl, No. 12-399, the biological father is seeking custody of his Native American daughter and the adoptive parents are contesting various portions of the ICWA.

How do we resolve the various conflicts surrounding TRA? There are valid arguments to be made on either side of the debate. Those in favor of TRA point to the above mentioned foster care statistics and the disproportionate number of white children that are adopted compared to the number of children from other races that remain in foster care. Further, proponents claim there is no evidence that TRA harms children – to the contrary, it is argued that, on the whole, transracial adoptions have been successful. Finally, it is argued that white adoptive parents are fully capable of meeting, if not exceeding, the identity needs of their black children. On the other hand, it is crucial for a child to understand and be familiar with their cultural identity, and being adopted by a family of another race may make this difficult.

In determining how to reconcile the competing viewpoints on TRA, it is important to remember that the key inquiry for any legal proceeding involving a minor should be the best interests of the child. This is also the proper inquiry when dealing with TRA. This inquiry will often be fact-specific and depend on the circumstances of each case. While children need to preserve and celebrate their cultural identity, this can be achieved by placing the child in an adoptive home where the parents are sensitive to this need and will provide the child with resources necessary to explore their ethnic background. Further, social services agencies can prepare transracial adoptive families by offering counseling services and courses related to parenting a child of a different race. Some agencies already do this, but it should be a requirement for all.

While race cannot and should not be determinative of where a child is placed, it should not be completely ignored, either. In certain cases, race may be an important factor for a social services agency to consider when evaluating a potential adoptive home. If two similarly situated families are being considered, and one family is of the same race as the adoptive child, that family should take precedence. Finally, if he or she is old enough to articulate their desires, the child’s preference should be considered, as well.

While the problems surrounding TRA are difficult and nuanced, it is important to avoid taking an absolute position on the practice. No one solution will be right for every family, and the principal concern should be on placing a child in a loving home where they will thrive and have a bright future.



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