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Encouraging Adoption

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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15 Responses

  1. Margo Kaplan says:

    A Texas legislator (Dan Patrick) proposed something similar in 2007. He wanted to give $500 to women who chose to carry to term and put their children up for adoption. Here is a link on the story: http://www.chron.com/news/article/Anti-abortion-bill-raises-baby-buying-worries-1561977.php

    Some argue that it borders on “buying” children and may be coercive for women of limited means. It also may be unlikely to really work. Women’s reasons for having abortions are usually more complex than being short $500 (which also amounts to little compared with the costs of pregnancy and childbirth). It also raises some uncomfortable practical problems; for example, how do we prove the woman considered abortion?

    But there’s another perspective. Some proponents of “safe, legal, and rare” advocate the “rare” part because unwanted pregnancies are a bad thing to have, and not because they believe abortion is in itself any worse than adoption as a means of dealing with unwanted pregnancy. Their concern is solely on preventing the problem of unwanted pregnancy and allowing women who choose abortion or adoption to effect their choices safely. Under this view, there is no reason to reward one choice over the other.

  2. Andrew Coan says:

    A related possibility, advocated by Robin West, is to make motherhood less onerous and more consistent with full participation in economic and civic life (through government-funded childcare and the like). West goes so far as to oppose a negative right to abortion on the ground that it “legitimates a minimalist state response to the problems of pregnant women who carry their pregnancies to term and for poor parents who might need greater public support.” West, Robin, “From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights” (2009).

  3. Alex says:

    I would think about the other end: adoption is very expensive and a long, difficult process. If you make adoption very inexpensive for qualified families, more couples who would make excellent parents would be able to adopt. Friends of mine were able to adopt a child only because the state they lived in at the time provided a subsidy for adoptions of minority infants. They would have gladly taken any infant, but absent this program they would not have been able to do it financially. And it was quick -they put in their application and several months later the child was in their arms! Now they have a wonderful child who is happy and healthy. The government or private entities could also mount a public relations campaign in favor of adoption.

    Also, not to nitpick but the post above implies that people who are pro choice are also pro abortion. But the two are not the same. (If you are pro choice, you may very well prefer to encourage adoption over abortion, regardless of the issue of how to regulate abortion, that is, even if abortion was safe and readily available to all).

  4. Brett Bellmore says:

    “How do you make the “rare” part happen without imposing an undue burden on a woman’s right to choose?”

    By defining “undue” more towards the right to life end of the spectrum? You do seem to be presuming a particular viewpoint in posing that question…

  5. Shag from Brookline says:

    Brett seems to want to impose a “due burden” on women in lieu of their “undo” choice.

  6. A.J. says:

    Posner has a fascinating and controversial article on liberalizing adoption, if you’re interested in a market based approach.

    The criticisms you identify (baby surplus, cost burden, and social acceptance of irresponsible behavior) seem to disappear if we accept a market based approach.

    And, if you look at adoption as the selling of parental rights, rather than the selling of children, many other criticisms disappear.

  7. amused says:

    Legalize sales of parental rights, and most adoption problems will disappear. Make those sales binding, so that unscrupulous birth mothers won’t cheat desperate families out of semi-legal pre-payments as they do now, and honest birth mother would be able to get paid promptly. This will help children, adoptive families, and birth parents.

  8. Jim Maloney says:

    A $500 incentive isn’t much of one. When one considers how earnestly many couples people want to adopt, it seems that a free market solution ought to be viable and would really increase the number of live births going to welcoming homes, along the lines of what both A.J. (Sutter?) and “amused” have pos[i]ted. The marketplace would need to be accessible (and presumably regulated) on a national level in order to work optimally. Therefore a comprehensive federal law that preempts state laws would need to be enacted. Not pursuant to the commerce power, you say? Well, we have the taxing power now, don’t we?

  9. nidefatt says:

    I fail to see what good a proadoption stance will have in a country that is being forced to accept that we really don’t need a massive labor pool. Particularly not one we can’t educate. And one that devours limited natural resources.

  10. Joe says:

    Open adoption laws, including those which expand the people welcomed into the fold while making it more flexible for the birth parent as potential adoptive parents, is one way that might encourage adoption.

    “How do you make the “rare” part happen without imposing an undue burden on a woman’s right to choose?”

    By defining “undue” more towards the right to life end of the spectrum? You do seem to be presuming a particular viewpoint in posing that question…

    Yes, he presumes the current accepted law of the land when considering policy options instead of a thought experiment that requires said law to be changed. Why this is worth noting is unclear. Wouldn’t considering policy options reasonably consider the current understanding of the law and not some possibility that some day it will change?

    We can do the latter, obviously, but I’m not sure why it’s notable unless Brett just wants to make some comment on current constitutional understanding of the right to privacy and women’s autonomy.

  11. Mirah Riben says:

    *** What we need to encourage and promote is adoption of the children already here in need of care, not bringing more unwanted babies into the world! ***

    I suggest you stick to writing about subjects you know something about. You are totally off base when you claim that adoption as an option “gets far less attention than it should.” This is absolutely not true! It is pushed, prodded, encouraged and promoted. Adoption is a multi-billion dollar industry with millions spent by individual adoption agency businesses to “market” to expectant mothers. The religious right is in bed with the adoption industry and promotes adoption from the pulpit. Many evangelicals see it as a “calling” and incorrectly relate child adoption to biblical adoption.

    To encourage a woman to carry a child she does not want to is cruel and risks her life. Why??? The world is OVER POPULATED? WE do not need to encourage women to carry babies they don’t want to term!

    People want to adopt but turn their back on the more than 100,000 children in US foster care who could be adopted. Do we really need to cater to them and create unwanted infants for them? I don’t think so! i think that’s cruel and inhuman and solving problems by letting horses out of the gate then seeking ways to coral them. Close the gate! Ensure every child is a wanted a child.

    Mirah Riben, author, THE STORK MARKET: America’s Multi-Billion Dollar Unregulated Adoption Industry

  12. Mirah Riben says:

    Forgot to mention that one way adoption is currently encouraged is by offering tax benefits to those who adopt!

    Note, no such benefits are given to mothers in crisis so they might be able to care for their own children.

    Subsidies are given to strangers to foster children, but nothing similar is provided to help grandparents who shoulder the burden for untold numbers of grandchildren. STATES earn subsidies for pushing children quickly through foster care – after snatching theme often for nonsensical reasons – to adoption.

    LOTS OF MONEY – all being used to separate families – tear them apart and reform other families! this is sick, inhuman, immoral and should be stopped! It aint what jesus would have done! not at all. he threw out the money lenders and helped the down-trodden. he did bot encourage exploitation of the poor to provide babies for those eager to pay for them!

    “Regrettably, in many cases, the emphasis has changed from the desire to provide a needy child with a home, to that of providing a needy parent with a child. As a result, a whole industry has grown, generating millions of dollars of revenues each year . . .”
    The Special Rapporteur, United Nations, Commission on Human Rights, 2003.

    “Over the past 30 years, the number of families from wealthy countries wanting to adopt children from other countries has grown substantially. At the same time, lack of regulation and oversight, particularly in the countries of origin, coupled with the potential for financial gain, has spurred the growth of an industry around adoption, where profit, rather than the best interests of children, takes centre stage. Abuses include the sale and abduction of children, coercion of parents, and bribery.”
    UNICEF’s position on Inter-country adoption.

    Are you aware that South Australia just APOLOGIZED for pressuring women to relinquish babies for adoption because of social mores against single parents?? You are suggesting we go back to the 1950s??? bet you’d love to see a return of the maternity Homes where were sent like prisoners. How about having them do laundry like they did in Ireland? or just go all the wya to thee bible and make them handmaids like Hagar – aka SLAVES!

  13. Gerard Magliocca says:

    Well, that’s the first time this week I’ve been accused of supporting slavery.

  14. Germany seems to be joining the group that thinks anonymous adoption encourages adoption: http://www.spiegel.de/international/germany/controversy-over-baby-hatches-in-germany-a-844134.html

  15. Peach says:

    Just keep in mind that adoption strips the right of the adoptee to know thier very identity, heritage, and genealogical history. The only other time in American history that identities were changed and kept from the very people they pertained was in American slavery. Even the Child Welfare League of America supports legislation (passed in only 6 US states so far) for adult adoptees to have unconditional access to their original birth certificate. The myths surrounding “sealed records” are that birth mothers were promised confidentiality, when in fact, it was enforced upon them by the adoption industry, who encouraged “sealed records” law.