Adoption As Substitute For Abortion?

Open PDF in Browser: Melinda L. Seymore,* Adoption As Substitute For Abortion?

In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito relied on adoption as part of the justification for holding that abortion is not constitutionally protected. First, he said, “[s]tates have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously.” Second, “a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” Using adoption as an adequate substitute for abortion is a long-standing strategy for the antiabortion movement, but it is often embraced by pro-choice advocates as well. This position is supportable only if the realities of adoption are ignored in favor of mythologized notions of adoption as morally superior to abortion.

This piece explores the ambiguities in adoption, considering the issues of racism, patriarchy, and poverty that drive children into the adoption system. It also discusses the history and philosophy literature that link adoption and abortion, and how those who favor access to abortion have ceded the morality issue to those who are antiabortion. The piece also examines the psychosocial literature about birth parents and adoptees that reveals the experiences of these members of the adoption triad, and uncovers the false premise that adoption compares favorably to abortion because it causes no harm. Overall, this piece critiques the ways in which adoption is sanitized to erase issues of gender, race, and class, so as to present adoption as superior to abortion and thus justify ending abortion access.

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I have given a baby up for adoption, and I have had an abortion, and while anecdotes are not evidence, I can assert that abortions may or may not cause depression—it certainly did not in me, apart from briefly mourning the path not taken—but adoption? That is an entirely different matter. I don’t doubt that there are women who were fine after adoption, and there is emphatically nothing wrong with that or with them; but I want to point out that if we’re going to have a seemingly never-ending discussion about the sorrow and remorse caused by abortion, then it is about goddamn time that we hear from birth mothers too. Believe me when I say that of the two choices, it was adoption that nearly destroyed me—and it never ends.

— Anonymous[1]

Abortion and adoption are often linked with the suggestion that placing a child for adoption is a “perfect substitute”[2] for abortion access. This has been an antiabortion talking point since Roe v. Wade[3] legalized abortion. In Dobbs v. Jackson Women’s Health Organization,[4] Justice Samuel Alito relied on adoption as part of the justification for holding that abortion is not constitutionally protected, first asserting: “States have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously.”[5] He further bolstered the argument, noting that “a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.”[6] Justice Amy Coney Barrett had previously made that point during oral arguments in the case while questioning counsel for Dobbs:

[I]n all 50 states, you can terminate parental rights by relinquishing a child after [birth], and I think the shortest period might have been 48 hours if I’m remembering the data correctly.

So it seems to me, seen in that light, both Roe and Casey emphasize the burdens of parenting, and insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women’s access to the workplace and to equal opportunities, it’s also focused on the consequences of parenting and the obligations of motherhood that flow from pregnancy.

Why don’t the safe haven laws take care of that problem?[7]

Suggesting adoption as a substitute for abortion is not exclusively an antiabortion position. When President Obama gave a speech at the University of Notre Dame, he too talked up adoption: “So let us work together to reduce the number of women seeking abortions. Let’s reduce unintended pregnancies. Let’s make adoption more available. Let’s provide care and support for women who do carry their children to term.”[8]

This idea of adoption as a perfect substitute for abortion, of course, ignores issues relating to the entire course of pregnancy and childbirth. Consider just one data point—maternal mortality. The rates of death during pregnancy, childbirth, and immediately postpartum in the United States have more than doubled in the past two decades, while the rates have declined in other high-income countries.[9] Pregnancy is even more dangerous for non-Hispanic Black women, whose risk of mortality is three-to-four times the rate of pregnancy mortality in non-Hispanic White women.[10] Abortion bans will cause maternal mortality rates to rise further, “owing to the fact that childbirth in the United States carries substantially greater mortality risk than does legal induced abortion.”[11] So after Dobbs, we are likely to see maternal mortality rates increase further as those who want an abortion are instead compelled to continue the pregnancy that might kill them. That increased maternal mortality estimate does not even take into account “changing the demographic composition of births, forcing continuation of high-risk pregnancies, increasing unsafe abortions, increasing domestic violence homicides, and changing healthcare practices and healthcare seeking due to criminal and civil liability.”[12]

The “perfect substitute” view of adoption obscures anything negative about adoption relinquishment and placement. It tends to ignore how it is that children enter the stream of adoption. All adoption starts with loss;[13] children must be cut off from their natal family, and oftentimes from their culture, language, and sometimes country. Adoption is a multigenerational loss, with the adopted person losing grandparents as well as parents, and with the children of adoptees also losing grandparents and so on.

Of course, those who believe that abortion entails loss of life akin to murder are likely to remain unmoved by information about adoption loss. I do not wish to minimize their belief that abortion is wrong. I will, however, suggest that there are moral considerations in abortion and adoption that go beyond our usual conceptions of each. To the extent that we idealize adoption, we are not factoring into the moral equation what we know about the realities of adoption for birth parents and adopted persons. Adoption presents moral ambiguities in the ways that racism, patriarchy, and poverty select the winners and losers in adoption, as adoptive parents are overwhelmingly White and financially secure, while birth parents are overwhelmingly Black and Brown and living in poverty. And while adoptive parents gain a child who is often desperately wanted, adoptees and birth parents are expected to quietly suffer long-term adoption loss. Adoptive parents can also claim a type of loss, as they often come to adoption after infertility prevents them from having biological children, and they may add grieving the loss of an expected biological child to the complex task of parenting an adopted child.[14] And society loses as adoption configures the only appropriate families as those with a mother and a father—the quintessential nuclear family. Adoption also feeds into the idea that a couple without children is incomplete, and perhaps not a family at all. The reader can decide who the winners and losers are in this complex array of interested parties.

Racism, patriarchy, and poverty play fundamental roles in both the supply side and demand side of adoption. Systemic racism pervades the child protection system, devalues the Black family, and surveils mothers thought inadequate to parent because of their race and consequent poverty. Black children are more likely to be in foster care than White children, and less likely than their White counterparts to be reunited with their biological parents. Thus, systemic racism steers them into adoption, often by White parents. Patriarchy birthed adoption in the ancient world with adoptive parents’ need for a male heir to inherit property that could not be owned by women. Both the supply and demand sides of adoption owe their existence to patriarchal notions of motherhood. Birth mothers, having transgressed the norms of sex limited to marriage, are bad mothers who can only return to the purity standards patriarchy expects by relinquishing the child. On the demand side, patriarchy motivates motherhood in worthy mothers by insisting that motherhood is essential to womanhood, thus driving the desperate search for a child to adopt. Poverty, which is at least in part driven by racial and gender discrimination, incentivizes mothers to relinquish the children they cannot afford to parent and serves as the backdrop for the neglect that the State alleges in order to involuntarily terminate parental rights.

Looking at how children enter the adoption process, whether via foster-to-adopt or private adoption, illuminates the moral ambiguity of adoption. Any discussion of the role of race, poverty, and misogyny in adoption must start with the work of legal scholar Dorothy Roberts, who has shown how the child welfare system separates children from their families, particularly Black children and families.[15] When we talk of children “adopted from foster care,” we tend to ignore their first families and the inequitable processes used to remove their children from their care. With private adoption, we again ignore the circumstances that might lead parents to relinquish a child—poverty, inadequate support for child-rearing, and the continuing stigma of single parenting.[16] By masking how children come to be available for adoption in favor of happy stories of family-building by adoptive parents, we enhance the moral status of adoption without addressing causes rooted in racism, patriarchy, and poverty.

Antiabortion advocates claim that adoption is a painless process, while abortion harms women. But studies of mothers who have relinquished children for adoption and those who have had abortions have disproved both of these claims. Studies about the supposedly harmful effects of abortion have been thoroughly debunked, while reputable psychosocial studies show that birth mothers may experience long-term effects, including grief, sadness, anger, guilt, depression, and negative self-image.[17] Adoptees also experience lifelong issues, including grief and loss, depression, and problems with identity formation that are particularly acute for transracial adoptees.[18] Adoptees are significantly overrepresented in mental healthcare facilities,[19] and studies have shown an increased risk of suicide and suicide attempts by adoptees.[20]

If comparisons between adoption and abortion are to be made, then it is important to assess adoption accurately against a landscape of law and society that is riddled with misogyny, racism, and classism. Mythologizing adoption, focusing only on narratives palatable to adoptive parents and ignoring what birth parents and adoptees say, fails to reckon with the ambiguity in adoption.

In Part I, this Article explores the ambiguities in adoption, considering the issues of racism, patriarchy, and poverty that drive children into the adoption system. Part II discusses the history and philosophy literature that link adoption and abortion and the psychosocial literature about birth parents and adoptees, and it uncovers the false premise that adoption compares favorably to abortion because adoption causes no harm while women are harmed by abortion. Finally, Part III contrasts how courts and legislatures address the issue of consent in adoption and abortion, revealing that stated concerns about women being coerced into abortions are actually an attempt to prohibit abortion rather than protect women from coercion. Overall, this Article critiques the ways in which adoption is sanitized to erase issues of gender, race, and class, so as to present adoption as superior to abortion and thus justify ending abortion access.

I. The “Domestic Supply of Infants”

In Dobbs, Justice Alito quoted a Centers for Disease Control (CDC) report decrying the fact that “the domestic supply of infants relinquished at birth or within the first month of life and available to be adopted had become virtually nonexistent.”[21] This language of commodification seems dissonant when adoption is considered as a social welfare enterprise of helping needy children find families. Instead, the quote seems to characterize adoption as a pipeline to provide children to adoptive parents, and that somehow it is a bad thing that there are not more needy, parentless children. But “there has long been an economic as well as child welfare model of adoption.”[22] Legal scholar and former judge Richard Posner drew outrage when he used law and economics to suggest reforms—including paying birth parents—to cure the “baby shortage,” in some part because of the explicit market terms he used to describe children in foster care as “unsold inventory,” and opining on the “free-market value of the child.”[23] But in reality, adoption today is a multi-billion-dollar-a-year industry:[24] adoptive parents are the customers and the child is the product. As one adoption industry worker revealed, “You know, it is a business. We provide a fabulous service, but at the end of the day, we are a business. Which I would never want you to quote, since it doesn’t sound right.”[25]

The adoption business has a supply chain problem, with the number of prospective adoptive parents in the United States significantly exceeding the number of available infants. With the children they most want to adopt—healthy White newborns—placed for adoption at only the rate of 14,000 to 20,000 a year,[26] the competition is fierce. Of course, there are other children available for adoption: in 2021, 54,240 children were adopted from foster care.[27] Most children adopted from foster care are adopted by their foster parents (55 percent) or other relatives (34 percent).[28] Prospective adoptive parents are often not as interested in adopting through foster care because the children are older and may have disabilities.[29] International adoptees account for another cohort of available adoptable children: in 2018 (the last year when international adoption was not affected by COVID-19), 4,049 international children were adopted to parents in the United States.[30] The number of international adoptions to the United States has been declining year after year for twenty years. Still, the “competition” for adoption is for those healthy White newborns. “Recurrent complaints about the ‘shortage’ of children to adopt were almost always complaints about the shortage of healthy white infants.”[31] While White families in the United States will adopt non-White infants, they are more likely to adopt Asian and Latinx infants than Black infants. As Solangel Maldonado notes, “While Americans point to the small number of healthy infants available in the United States, healthy African American newborns are ending up with white families in other countries such as Canada, France, and Germany.”[32] Unable to find White adoptive parents in the United States willing to adopt Black infants, the United States becomes a sending country in international adoption.

Children’s entry into the adoption system, it must be remembered, is because they have lost legal parents. It is the rare case where a child to be adopted is an actual orphan—one who has lost both parents to death.[33] The United Nations Children’s Fund (UNICEF), in order to spur development aid by claiming large numbers of orphans, uses a definition of orphan that includes children who have lost only one parent,[34] even when the child is in the custody of and adequately cared for by the one living parent. In order for a child to be available for adoption, those with parental rights in the child must have those rights terminated by law, unless those rights have been terminated by death.[35]

Parental rights may be terminated involuntarily, following state intervention in the family on the grounds of abuse and‌/or neglect.[36] Or they may be terminated voluntarily, with birth parents freely relinquishing their parental rights.[37] The line between voluntary and involuntary termination of parental rights is not as distinct as it might seem. “[S]ome birth parents who sign voluntary relinquishment papers actually feel coerced by loved ones, spouses, parents, or even their culture (i.e., cultural norms against childbearing out of wedlock) to relinquish their children.”[38] The state may also take part in “voluntary” relinquishment of parental rights by soliciting that voluntary termination in the midst of a proceeding for involuntary termination by promising the parent certain benefits.[39] The state might tell the parents that if their parental rights are involuntarily terminated in the child, they risk having future children more easily removed and that by voluntarily relinquishing the child they will avoid the loss of a future-born child.[40] “Give us this child or we’ll take your next child” is a strange concept of voluntariness. The state may tell others that if they voluntarily relinquish to adoption, the state will recommend an open adoption where the parents might have future contact with the child, but that an open adoption will not be available if involuntary termination is required.[41] Again, it is hard to view this situation as voluntary consent.

Once parental rights have been terminated—once we have, through public or private systems, turned a child into a legal orphan—a child becomes “adoptable.” In celebrating adoption as an unmitigated social good and in decrying the dearth of adoptable infants, we tend to ignore how children become available for adoption in the first place. Most become available because of the way racism, patriarchy, and poverty work to deprive some parents of their children for the benefit of other parents whom society believes are more worthy.

In the following three Sections, I will focus on racism, patriarchy, and poverty separately, though there is considerable interaction between the three. As Dorothy Roberts notes, “[r]acism and patriarchy are not two separate institutions that intersect only in the lives of Black women. They are two interrelated, mutually supporting systems of domination and their relationship is essential to understanding the subordination of all women.”[42] And given the roles of racism and sex discrimination in the maintenance of poverty, being poor is a factor that also interrelates. To aid in analysis, however, it is helpful to talk about each as distinct factors before discussing how they intersect.

A. Racism in Adoption

Adoption in the United States is inextricably intertwined with America’s history of racism. This Section will examine how structural racism dismantles Black families through the child welfare system, how assimilationist policies shuttle Indian children into White families, and how international and transracial adoption feeds the desire of White families for children while still allowing for a fierce competition of healthy White newborns to adopt.

1. Racism in the Child Welfare System

Structural racism plays a role in how children are funneled into the adoption pipeline, especially through the foster care system. Dorothy Roberts has condemned the child welfare system as a “racist institution.”[43] Topline numbers support this determination: Black children constitute 42 percent of children in foster care while they account for only 17 percent of all children in the United States.[44] Roberts sat in on dependency proceedings in Chicago and wrote:

Spend a day at dependency court in any major city and you will see the unmistakable color of the child welfare system. Dependency court is where judges decide the fate of children who have been taken into state custody because their parents are charged with abusing or neglecting them. Nearly every family in these urban courts is Black. If you came with no preconceptions about the purpose of the child welfare system, you would have to conclude that it is an institution designed to monitor, regulate, and punish poor Black families.[45]

The roots of the racism in the U.S. child welfare system are the devaluation of the Black family, originating in slavery, and the continued disparagement of Black motherhood.[46] After slavery was abolished, White plantation owners argued that Black parents, unaccustomed to freedom, were not capable of raising their children, so those children needed to be apprenticed to the landowners who once owned their families.[47] The idea that Black children need to be supervised by White parents endures today, and is central to Harvard professor Elizabeth Bartholet’s arguments in favor of transracial adoption: “[W]hites are in the best position to teach black children how to maneuver in the white worlds of power and privilege.”[48] This position defines success for Black individuals as assimilation into the White world.

2. Transracial Adoption and Assimilation

Using adoption to assimilate children into the White world has been commonly practiced in the United States. In the early days of transracial adoption, adoptive parents were advised by social workers and agencies to downplay race and ignore differences between the children and the adoptive parents.[49] Social workers would give “the same parenting instructions given to same-race adoptive families—‘raise your adopted child “as if” they were your biological child.’”[50] Even today, after decades of research suggesting that this approach is harmful to racial and ethnic identity formation, some White adoptive parents insist on using “color-blind” parenting approaches, where racial differences between parent and child are not acknowledged.[51]

In his memoir Invisible Boy, Harrison Mooney writes of his experiences as a Black child raised by White parents.[52] In one chapter, he is unexpectedly asked to speak to a group of White adoptive parents who had adopted Black children:

I saw at once their need to solve their children, to decode them. I saw that not one knew how to bridge the gap of race that kept them from connecting with their kids, that had them flailing at a stranger, seeking clues and validation. . . .

It was clear that these people were completely ill-equipped to raise Black babies. They seemed to think that I could fix it for them. I was reminded of that movie, The Truman Show, where the actor Jim Carrey discovers that his world has been constructed to entrap him, to exploit him in his ignorance, and that his reality is false and designed, above all else, to keep him from seeing himself as a product, consumed by the masses without his consent.[53]

This poignant memoir illustrates that crossing the color line in adoption is far more fraught than White adoptive parents may imagine. It seems that the National Association of Black Social Workers, which condemned transracial adoption in 1972, was correct when it stated, “Black children in white homes are cut off from the healthy development of themselves as Black people.”[54] Nonetheless, Congress passed the Multi-Ethnic Placement Act to remove barriers to transracial adoption.[55] Apparently, Congress felt that racial identity of Black children was of secondary importance when White parents wanted kids to parent.

3. Indian Children, the Indian Adoption Project, and ICWA

Perhaps one of the best-known examples of assimilationist adoption is the removal of Native children to be adopted by White families.[56] Starting in 1958, the Indian Adoption Project (“IAP”) was a collaboration of the Bureau of Indian Affairs and the Child Welfare League.[57] “The IAP placed Indian children into non-Indian homes and conducted research with the intention of showing that placement of minority children in nonminority homes was beneficial to children.”[58] As the IAP became seen by Native activists as forced assimilation, there was a push for legislation that culminated in the passage of the Indian Child Welfare Act (ICWA) in 1978.[59] ICWA was designed to prevent the removal of Indian children from their families and tribes, by setting stricter standards for child removal, establishing a placement preference for foster care and adoption by tribal members, and allowing tribes to intervene in those placements by states.[60]

There is now a backlash against ICWA, with some seeing ICWA as an impermissible race-based statute that disadvantages White adoptive parents. In Adoptive Couple v. Baby Girl,[61] the Supreme Court restricted the reach of ICWA, holding that a biological father could rely on its protections only if he had physical or legal custody of the child prior to the adoption. The result is that in the classic newborn adoption case where a birth mother places the child with adoptive parents, the law prioritizes White prospective adoptive parents over an Indian father who did not actively grasp his opportunity to parent before the child’s birth.[62] In commentary on the case, Rose Cuison Villazor notes that Justice Alito’s opinion “racialize[d]” the biological father, Dusten Brown, by emphasizing the small percentage of Cherokee blood—3‌/256—possessed by the child, rather than focusing on the fact that he was an enrolled member of the Cherokee Nation.[63] Justice Alito was, from her vantage, “hinting at unfair racial preferences,” and accusing Brown of the undeserved use of an “ICWA trump card.”[64] Thus, Justice Alito’s opinion “demonstrates a simplistic and anxious view of race, equating blood quantum with racial identity and ‘preferential’ use of race at the cost of white families.”[65]

The Supreme Court had the opportunity in the 2023 Term to decide whether ICWA is constitutional.[66] In Brackeen v. Haaland,[67] the Fifth Circuit preserved a core aspect of ICWA, holding that the law’s preference that Indian children be placed with Indian parents was not an impermissible race-based classification. Rather, the placement preference was based on a political category of tribal sovereignty.[68] The Fifth Circuit did find a handful of ICWA provisions unconstitutional as commandeering under the Tenth Amendment, which did not affect the core placement provisions.[69]

The Supreme Court upheld the constitutionality of ICWA, rejecting arguments that Congress lacked constitutional authority to pass ICWA[70] and that the requirements of ICWA violated the Tenth Amendment’s anti-commandeering directive.[71] But the Court did not rule on the Fourteenth Amendment challenge to ICWA as race-based discrimination;[72] neither the state of Texas nor the plaintiff-parents, some of whom were prevented from adopting or fostering Indian children or who hoped to adopt or foster additional Indian children in the future,[73] had standing to challenge the Indian-family preference of ICWA.[74]

The fact that the Supreme Court did not dismantle ICWA in Haaland was hailed by many as a victory.[75] While it was undoubtedly good news in the short term, the Court left unresolved the major issue the case presented—whether ICWA was based on race or sovereignty.[76] And the case planted seeds for further Fourteenth Amendment challenges to ICWA. For example, in analyzing standing, the Court acknowledged that the plaintiff-parents did allege an Article III injury, and the Court named the injury they alleged as “racial discrimination.”[77] The families failed on standing because of a lack of redressability, not for lack of injury. In other words, the Court acknowledged that the plaintiffs met part of the standing test—having suffered the injury of racial discrimination because they were non-Indian. But they failed on redressability—the Court could not redress the harm because the state officials who would enforce ICWA were not parties to the lawsuit and would not be bound by any ruling of the Court.[78]

Justice Brett Kavanaugh concurred in order to emphasize that “the equal protection issue is serious.”[79] A child in foster care who was denied a placement that would otherwise be in their best interests because the child was Indian, as well as White prospective foster or adoptive parents denied the right to adopt an Indian child, would “raise significant questions under bedrock equal protection principles and this Court’s precedents.”[80] And to help the right plaintiff to bring this claim before the Court, he describes the appropriate plaintiff he is looking for: “a prospective foster or adoptive parent or child in a case arising out of a state-court foster care or adoption proceeding,”[81] thus teeing up a future challenge that might successfully end ICWA’s attempt to preserve Indian families.

The attempts to dismantle ICWA are often seen as a general attack on the sovereignty of Indian tribes. But they are also a way to satisfy the demands of prospective adoptive parents for adoptable children in a marketplace that is fiercely competitive because of, as Justice Alito would say, the dearth of a domestic supply of infants to adopt.

4. Satisfying the Desires of White Adoptive Parents

With both transracial adoption and adoption of Native children, it seems that White prospective parents simply believe they should be able to adopt any child they wish.[82] International adoption, which is often transracial as well, also suggests that sense of entitlement that points to the United State’s colonizing roots.[83] An enduring concern for the global South is the movement of children from their countries to the wealthier, White global North.[84]

Yet there is also the sense that transracial adoption is not the first choice of most White adoptive parents. It is when there are no available healthy White newborns or the White prospective parents fail to meet some criteria for adoption (age, income, size of family) that White parents begin to consider children who are non-White.[85] In considering non-White children, there is a definite hierarchy among races that adoptive parents will consider. Elizabeth Raleigh explains that adoptive parents and adoption agencies see Asian and Hispanic‌/Latinx children as “honorary whites,” with one agency worker explaining that “adoptions from Asia are . . . less of a transracial adoption.”[86] Raleigh’s work validates legal scholar Twila Perry’s sense that “for many whites seeking to adopt, a Black child is a second, third, or last choice, behind children that are white, Asian or Hispanic.”[87] This widely shared perspective harms Hispanic‌/Latinx and Asian children by ignoring their cultural and racial identities and valuing only their proximity to Whiteness. This racial preference also harms Black children, who are deemed the least desirable in the adoption market. The racial preference has long been known, and adoption agencies will often offer Black babies at reduced rates to incentivize their adoption.[88] “Consider the following: couples may spend upward of fifty thousand dollars to adopt a healthy white infant. Black infants, however, are adopted for as little as four thousand dollars.”[89]

Structural racism is one of the drivers that push Black children and other children of color into the adoption industry as the commodified product to be sold to adoptive parent-consumers. When there is a mismatch between the race of the “product” and the desires of prospective parents, non-White children may spend more time in foster care or be offered at a discount as “unsold inventory.”[90]

Racism works on both the supply and demand sides of adoption, funneling minority children into the child welfare system toward eventual adoption. Assimilationist policies encourage adoptive parents to ignore racial differences to make the children “successful,” which translates to White. Because of a hierarchy within minority races, White adoptive parents often seek to adopt Asian and Hispanic children through international adoption rather than Black children available domestically at the reduced prices that anti-Black racism accomplishes in an economic model of adoption. All this illustrates the pernicious effects of structural racism in adoption. As the next Section illustrates, race is not the only factor that serves as a driver of adoption. Misogyny and patriarchy also influence adoption, dictating who are bad mothers deserving of losing custody of their children and who are good mothers worthy of raising the children of others.

B. Patriarchy and Adoption

Adoption owes its existence to patriarchal systems.[91] Its origins lie in Ancient Roman inheritance rights; when a family lacked a male child to inherit an estate, adoption of a male heir filled that gap.[92] It continues today through patriarchal notions of what constitutes an appropriate family.

1. Patriarchy and the Supply Side of Adoption

During the Baby Scoop Era[93]—the period of time between World War II and the legalization of abortion, when single women were, in great numbers, stripped of their children for adoption—“[t]he underlying attitude of adoption professionals was that an unmarried woman and her child did not constitute a family.”[94] Rickie Solinger notes that stripping single mothers of their children “was clearly structured by society’s disapproval of women who violated female norms of sexual purity and obedience.”[95]

Even today the normative family is one with a mother and a father. Adoption agencies and crisis pregnancy centers still encourage single women to place their babies for adoption because they are unmarried.[96] One birth mother, Jennifer, explained the influence her mother had on her decision to relinquish her child for adoption: “[She thought] I’d be selling the baby short if I didn’t provide him with a father.”[97] In a recent study, birth mothers expressed fears of being judged for being pregnant while not married, as well as fears of stigma associated with single parenting.[98] As one birth mother put it, “if you’re a single mother, you’re somehow an abusive mother because you’re depriving your child.”[99] That stigma was, for many, associated with their religion.[100] According to one birth mother, explaining why she relinquished her child for adoption, “I had been raised in a culture that taught that it’d be better off if you died than to lost [sic] your virtue—your virginity, type of thing, and that if you do lose your virginity or have sex outside of marriage that it is a sin.”[101]

2. Patriarchy and the Demand Side of Adoption

Patriarchy also drives the demand side of adoption. With the post-World War II Baby Boom came a reification of motherhood and domesticity as women were forced out of the workforce to return to the home as veterans returned to take back their jobs.[102] “The postwar family imperative put new pressures on, and suggested more intense pleasures to, infertile couples who in the past would have remained childless.”[103] Adoption “gave infertile people a way to enter into [the boom’s] celebration of domesticity and family.”[104] Rosie the Riveter wanted a child.

These ideas persist today. In looking at media representation of motherhood and infertility, Lulu Le Vay, scholar of sociology and media, highlights the commonly expressed idea that “[y]ou’re not a real woman until you’ve had a child.”[105] When television and movies address involuntary childlessness, the female protagonists “are portrayed as incomplete as women, until they become positioned as normative by becoming natural mothers and situated within a heterosexual couple dyad.”[106] The desire to appear as “complete,” and participate in the normative family that requires children, drives the adoption marketplace.

3. Reifying the Heteronormative Family

Of course, to satisfy patriarchal norms, the adoptive family is expected to replicate the biological family: one father plus one mother equals children. While single persons are permitted to—and do—adopt,[107] it may be more difficult for them. The conventional wisdom is that birth parents who select adoptive parents are often relinquishing because they are single, and thus, will not select a single parent for their child. And in a few states, there are statutes that prioritize married couples for adoption and allow singles to adopt only if there is not a suitable married couple—defined as a man and woman.[108]

Gay and lesbian families also contravene patriarchal norms despite recent acceptance of same-sex marriage and adoption. Most people in this country believe that gay couples should be permitted to adopt. “A year before the Supreme Court legalized gay marriage in Obergefell v. Hodges in 2015, the Gallup poll showed sixty-three percent believed that same-sex couples should have the legal right to adopt a child.”[109] In 2019, the figure had increased to 75 percent.[110] There are strong pockets of resistance, however, including on the more conservative Supreme Court. In 2021, in Fulton v. City of Philadelphia,[111] the Court prevented the City of Philadelphia from enforcing a nondiscrimination clause in its foster‌/adoption contract with Catholic Services.[112] Catholic Services refused to approve same-sex couples as foster or adoptive parents.[113] When Philadelphia terminated its contract because of this discrimination, the case made its way to the Supreme Court, and the Court held, essentially, that Catholic Services had the right to discriminate because their religion required it.[114] Religious exemptions that allow adoption agencies to discriminate against LGBTQ+ families reinforce the heteronormative family of patriarchy.

4. Feminism, Patriarchy, and Adoption

Some feminists argue that the potential to adopt children is actually good for women in that it allows women to invest in their education and careers, delaying child-rearing in spite of the risk of infertility, with the assurance that adopting a child is an available option.[115] Legal scholar Twila Perry argues that there is little criticism of adoption in feminist literature because feminists are likely to have followed the education and career pattern of delayed child-rearing.[116] “Identification with the women seeking children rather than with the women surrendering them might result in a reluctance to confront some of the issues that a feminist analysis of adoption would inevitably pose.”[117] Yet feminists need to engage with the issues of status and hierarchy between women—birth mothers and adoptive mothers—she asserts.[118]

Consent to relinquishing parental rights is a hallmark of private adoption. Consent presupposes free and voluntary choice, an exercise of autonomy. Perry considers feminist theories and the embrace of autonomy: the surrender by a woman of her child for adoption obviously implicates the issue of autonomy. Should such an act by a birth mother be regarded as a free choice that others should have no right to question, or should that choice be deconstructed in light of the political, social, and economic realities of the birth mother’s life?

5. Adoption, Consent, and Lessons from the #MeToo Movement

One of the most important recent developments in feminist understanding of autonomy and consent is the #MeToo movement. Can some of the lessons about autonomy and consent that the #MeToo movement has raised help us to re-envision consent in adoption relinquishment? After all, the #MeToo movement has changed understandings of consent, a prerequisite for adoptions (except where the State involuntarily terminates parental rights).

The #MeToo movement, which started with Tarana Burk’s coinage in 2007, was revitalized in 2017 as news of the predations of Hollywood mogul Harvey Weinstein became public.[119] What has followed is renewed attention to the meaning of consent in sexual assault and sexual harassment.[120] But the #MeToo movement can teach us about consent in other legal areas.

Legal scholar Renati Grossi concluded that the #MeToo movement had lessons for contract law, for instance.[121] She notes that theorists, including Randy Barnett, have found consent to be at the heart of contract law,[122] but that “any theory that centralizes consent needs to consider the limitations of consent that the #MeToo conversation has brought to light.”[123] These insights into contract law and #MeToo are relevant to consent in adoption and abortion as well.[124] By integrating #MeToo into the contractual meaning of consent, Grossi complicates the moral magic that Heidi Hurd attributes to consent,[125] asking, “Is [consent] as ‘good’ as we think it is? And even if it is, is it all we want? Has consent, long considered capable of lending moral and ethical legitimacy to our actions, now set the bar too low?”[126]

Having concluded that the #MeToo movement has something to say beyond consent in sexual assault and harassment, let us consider further the lessons from those arenas. As scholar Deborah Tuerkheimer notes, the kinds of sexual predation uncovered by #MeToo fall into three categories she calls “no consent,” “coerced consent,” and “pressured consent.”[127] Particularly relevant to adoption are the “coerced consent” and “pressured consent” categories.

Coercion will vitiate consent to an adoption, but what constitutes coercion is decided on a case-by-case basis and narrowly subscribed.[128] Courts will find that a birth mother has voluntarily consented to adoption even when an adoption agency or prospective adoptive parents take advantage of the duress of circumstances of poverty. Duress of circumstances is a valid contract defense in some jurisdictions, but courts will ignore the birth mother’s poverty and lack of other options in finding voluntary consent.[129] Even if the birth mother is offered advice that is inaccurate and biased, or no advice at all, consent will be found to be voluntary.[130] When agencies use pre-birth matching of birth mothers and adoptive parents to create a relationship to make the birth mother feel beholden to the adoptive parents, and they use the ability to pay for birth mother expenses as an excuse to supply gifts and perks that make the birth mother feel even more obligated to go through with the adoption, courts find voluntary consent.[131] When adoptive parents promise an open adoption (which permits post-adoption contact between birth mother and child), and that promise is unenforceable, courts may still find the birth mother’s consent voluntary.[132] So many of these issues with adoption consent implicate the imbalance of power between birth mothers and adoptive parents and agencies.

One important aspect of the #MeToo movement has been highlighting the myriad of ways in which victims’ autonomy is impaired by forces that vitiate consent, including hierarchy and power. Disparities of power in the workplace[133] and educational environments[134] make even seemingly consensual relationships suspect. The movement has also revealed that “the most powerful constraints are imposed on the most marginalized members of society.”[135] Predators not only recognize their own power, but they are skilled in identifying the weakest victims, the ones facing circumstances that impair consent.[136] The ways that adoption agencies and adoptive parents target vulnerable persons experiencing crisis pregnancies feel startlingly familiar to this #MeToo insight.

To sum up, the #MeToo movement has shifted societal views on the meaning of consent in some fundamental ways. The movement asks us to acknowledge that what appears as consent may be affected by economic, social, political, racial, and gendered factors. Each of these factors can create power disparities between actors. Further, the most disempowered segments of society have the most constrained choices—and the more powerful also recognize the disparity and target accordingly. Overall, the movement recognizes that autonomy cannot be viewed in a vacuum, as if all persons are dealing in arm’s-length bargaining each time consent is required by law.

Adoption requires the consent of the birth parents,[137] and that consent is supposed to be free from fraud, duress, or coercion.[138] Lack of support and financial instability are the top reasons that birth mothers cite for why they placed a child for adoption, which is similar to the reasons why women choose abortion.[139] Thus, consent in adoption is often impaired by economic factors of poverty and social factors like stigma.[140] Adoption agencies deliberately target disempowered segments of our society—young, poor, and single pregnant persons—to solicit consent to adoption placements.[141] Arguments about autonomy often ignore these real issues. We need to view consent—choice to surrender—within the context of the lived experience of the birth parent. One of those realities for most birth parents is poverty.

C. Poverty in Adoption

People experiencing poverty are more likely to lose their children to adoption, whether through voluntary relinquishment or involuntary termination of parental rights because of “neglect.”[142] In most states, neglect is the failure to provide “proper and necessary support,” with child welfare workers able to “declare a child neglected based on their own unbounded opinions as to what is ‘proper’ or ‘necessary care.’”[143] Certainly, there may be a few cases where a person chooses not to parent despite their ability to do so, but it is hard to ascertain the number. The common denominator among birth mothers who relinquish their child to adoption is poverty.

1. Poverty and Involuntary Termination of Parental Rights

“Poverty seems inextricably linked to the child welfare system.”[144] With poverty comes problems securing housing, nutrition, and medical care. Failing to provide these things to children is considered neglect, leading to removal and eventual involuntary termination of parental rights.[145] The vast majority of interventions by the child welfare system are for neglect, rather than abuse. Only 16 percent of removals to foster care are because of physical or sexual abuse; the remainder are for neglect.[146] The cases of neglect are not because parents are deliberately starving their children while they are imbibing champagne and eating caviar. For the most part, parents are not withholding resources from their children; they simply are too poor to acquire those resources.[147] Consider a parent who does not earn enough money to afford adequate housing, and lives with a child in a run-down and overcrowded shared apartment. That housing situation, common for the working poor, might be considered neglect.[148] “Neglect can mean living in dilapidated or overcrowded housing, missing school, wearing dirty clothes, going hungry, or being left at home alone.”[149]

Of course, neglect of children is harmful. From her perspective as a scholar of the child welfare system, Dorothy Roberts explains that the child welfare system equates poverty with neglect and does nothing to alleviate the poverty: “[T]he job of CPS [Child Protective Services] investigators is not to help parents take care of their children, but rather to find evidence . . . to take their children away.”[150] Roberts uses inadequate housing as an example: CPS does not have the resources to provide the ongoing rental assistance a family may need to remain in their home; CPS does not have the authority to compel the landlord to fix dangerous conditions or forgive the rent for a tenant who lost her job due to illness; and CPS cannot convince the government to recognize safe housing as a human right.[151] The family policing system’s tool is child removal to foster care and eventual termination of parental rights, leading to a permanent adoption. As the well-known aphorism says, “To a person with a hammer, everything is a nail.” And for the family policing system, the nail is “neglect,” since it has no power to deal with poverty.

2. Poverty and Voluntary Relinquishment of Parental Rights

Problems of poverty are not limited to the families who lose their children involuntarily. The most common reason given by those who voluntarily relinquish and place their children for adoption is financial instability.[152] They, too, have problems with secure housing, nutrition, and medical care. Thus, whether voluntary or involuntary, both sets of parents are losing their children to adoption because they are poor. In one study of birth mothers, based on adoption agency data, 64 percent of the birth mothers reported income of less than $5,000 per year; 55 percent were unemployed; and 88 percent qualified for public health insurance.[153] According to one agency, 28 percent of the birth mothers it worked with lived in “chronic poverty,” and 20 percent were homeless at the time they relinquished for adoption.[154]

Moreover, adoption agencies are not motivated to help a potential birth parent solve their problems if it might enable them to parent rather than relinquish. Adoption agencies are paid by adoptive parents, incentivizing them to prioritize the interests of adoptive parents in adopting a child rather than the interests of a birth mother in parenting that child.[155] The options-counseling offered by adoption agencies—which is supposed to help the prospective parent choose between adoption, abortion, and parenting—rarely conveys information about resources available for parenting.[156] In one recent survey of women who had relinquished children in the United States, “[i]nformation about resources available to assist first‌/birth mothers should they desire to parent their child was not provided to nearly 8 out of 10 mothers.”[157] Eighty-five percent of birth mothers “indicated that they would have liked to have known more about parenting resources available to assist them should they opt to parent their child.”[158]

3. Alleviating Poverty: Effects on Abuse and Neglect

We know that alleviating poverty decreases child abuse and neglect. Consider a recent study of the Supplemental Nutrition Assistance Program (SNAP): using data from 2006 to 2019, the authors discovered that when states implement policies that increase the number of families eligible for SNAP, the number of CPS investigations decrease, and in particular, investigations for neglect decrease.[159] We have long seen the inverse—as welfare benefits have been cut, the number of children in foster care has increased.[160] And in cash transfer programs, where low-income families are simply given cash, “monitoring of household expenditure has shown that families use substantial amounts of the income on children’s health, education and nutrition.”[161]

“It is supposed to violate America’s espoused values to punish people for being poor.”[162] Yet we can trace the loss of children to adoption, both in involuntary and voluntary termination of parental rights, to being poor. Social welfare programs to alleviate poverty and support parenting would clearly make a difference, preventing the separation of families and allowing children to be raised in safety and security by their families of origin.

4. Intersection of Poverty, Race, and Patriarchy

Being poor is related to being Black, and to being a woman, and especially to being a Black woman. Poverty, patriarchy, and racism work together to funnel children into the stream of adoption. Those who view adoption as a benign child welfare measure—that is a win-win-win for birth parents, adoptive parents, and children—need to recognize that the “benign” enterprise starts with systemic racism, patriarchy, and the weaponization of poverty.

The immorality of a system that rests on poverty, racism, and patriarchy to separate children from their families for the benefit of wealthy White families seems clear. Yet, in the next Section, we will see that moral philosophers, as well as the general public, posit that adoption is a social good and a superior choice to abortion.

II. The Morality of Abortion and Adoption

When Justices Barrett and Alito suggest that abortion access is unnecessary since adoption is a viable alternative,[163] they rely on a tactic that the antiabortion movement embraced following the legalization of abortion. Built upon notions of the moral superiority of adoption to abortion, supported by some moral philosophers, and anchored in the false idea that adoption is less harmful to birth mothers than abortion, an entire ethos arose that sought to convince—if not compel—women to choose adoption over abortion. Many people believe that the fetus represents life and has the same status as a person who is born.[164] Thus, they are concerned about the effect of the abortion decision on that life. However, the law does not recognize the fetus as a person,[165] and there is considerable disagreement on that issue.[166] But even those who do not see the fetus as a person may still embrace adoption as a superior option, given the general social approbation of adoption. It is important to assess the claim against the realties, rather than myths, about adoption and abortion.

Section II.A will start by grounding in history the belief that abortion and adoption are linked.[167] That history is interwoven with how the pro-choice movement sacrificed the moral argument for abortion in favor of talk about rights and autonomy. Section II.B will examine the ways in which moral philosophers elevate adoption as the morally superior choice while ignoring the realities of adoption. Section II.C addresses the issue of harm in abortion and adoption to show that claims that abortion is harmful to women and adoption is harmless are simply not true. Only in understanding that adoption is not as benign as it is often presented can we understand the moral calculus of adoption as a substitute for abortion. Finally, Section II.D considers how conceptions of consent, fundamental to both adoption and abortion, are treated in each. By examining consent law for both adoption and abortion, we can understand that stated concerns about women being coerced into abortions are really an attempt to eliminate all abortions rather than protect women from coercion.

A. History: Linking Abortion and Adoption

Abortion has not always been seen as it is today. In Dobbs, Justice Alito recites a pre-Roe history where abortion was criminalized and universally condemned.[168] Contrary to Justice Alito’s assertions, prior to Roe v. Wade, there were moral arguments in favor of abortion access.[169] The next few Sections illuminate activist groups during the time immediately prior to and after Roe and their arguments about abortion and adoption. These include clergy, pro-life groups, organizations of birth mothers, liberal feminists, adoptees, and groups of adoptive parents.

1. Pre-Roe, the Clergy Consultation Service, and Arguments for Abortion Access

A prominent example of a group supporting the morality of abortion is the Clergy Consultation Service on Abortion (“CCS”), which was founded in 1967 by the Reverend Howard Moody to help women seeking safe abortions in states where it was illegal.[170] The CCS rejected the view that abortion was murder, stating: “There is no living child upon whom the crime of murder can be committed.”[171] While the CCS statement did not view embryo life as a child, they took the position that there was a human life that clergy should care about—the pregnant woman and her already living children.[172]

Helping women avoid unsafe illegal abortions that might make orphans of their children was the higher imperative in the view of CCS. Further, they stated, doctors who performed abortions that others called illegal were “living by the highest standards of religion and of the Hippocratic oath.”[173]

In a 1971 piece in Theology Today, Reverend Moody expounded on his judgments about abortion, making the moral case for a woman’s ability to terminate a pregnancy. He found that working with women made it essential to view abortion realistically, not theoretically, concluding the true moral question was “whether it is justifiable to force the unwanted upon the unwilling. In our anxiety to honor the theory of the sanctity of life in general, we have played fast and loose with particular women’s lives and forced them by legal fiat to bear children that they never intended to conceive.”[174] He concluded that using a woman’s body “as a receptacle for unwanted pregnancy has got to be seen as a kind of ‘legalized rape.’”[175]

CCS framed their organization as living out their “pastoral responsibility and religious duty to give aid and assistance to all women with problem pregnancies.”[176] CCS members were not religious outliers; while the Catholic Church vehemently opposed abortion, many other religious denominations—including Reform Judaism, Southern Baptists, and Methodists—took a more measured position, advocating for reforms to laws that criminalized abortion and liberalizing abortion in a number of circumstances.[177]

Historian Johanna Schoen argues that, with the decision in Roe v. Wade, “moral arguments in support of abortion care faded into the background as abortion providers and their supporters focused on a language that—like the Supreme Court decision—emphasized rights and privacy . . . [and] the baton of ethics and morality seemed to get handed to the antiabortion movement.”[178] Unlike today, when the role of religion in politics is decidedly conservative, in the period immediately before Roe v. Wade, the role of religion in politics was inspired by the civil rights movement and the notion that the role of religion in politics should be progressive.[179] Today, it seems that the right-to-life argument has seized the only moral position on abortion, with the pro-choice position speaking in measured tones about autonomy and liberty.[180] Of course, there is a moral component to arguments about women’s ability to make their own reproductive choices. But the claims in abortion for autonomy and liberty often sound legalistic rather than a moral counter to arguments that abortion is evil.

2. Post-Roe: Pro-Life Arguments About Adoption as a Substitute for Abortion

Abortion and adoption became linked in political discourse with the legalization of abortion by Roe v. Wade[181] in 1973. As rates of adoption placement were declining, some blamed the availability of legal abortion for the dearth of adoptable newborns. “However[,] the decline in adoption preceded the legalization of abortion in the U.S. suggesting the two options may be largely independent.”[182] Still, pro-life forces used adoption as a tool in the battle to prevent abortions. In 1975, pro-life champion then-Governor Ronald Reagan encouraged adoption as an alternative, arguing in a weekly radio address that there were many prospective adoptive parents who would take any child.[183] By the 1980s, the antiabortion movement was presenting adoption as a morally superior alternative to abortion and praising, in President Ronald Reagan’s words, “brave women who heroically choose life” and provide their children with “the gifts of life and of a loving adoptive home.”[184] There was less respect, however, for single women who parented their children, especially if they were reliant on the social safety net.[185]

3. Concerned United Birthparents Fights Back

In the 1960s and 1970s, birth mothers themselves had opinions about abortion and adoption as reproductive issues, but their voices were seldom heard. By the late 1970s, the organization Concerned United Birthparents (“CUB”), made up of women and men who had lost children to adoption, began to speak out about adoption harms.[186] In an important study of CUB, historian Isabel Heinemann reports on letters and newsletters to and from the organization.[187] One CUB member collected statements of women who had abortions and women who had placed for adoption and reported that “all found that the pain of abortion grew less with time, while the pain of adoption continued or increased as the years passed.”[188] Nonetheless, women who relinquished their children for adoption insisted on dignity and respect for their decisions, wishing to be called “birth mother” rather than “biological parent.”[189]

CUB framed the decision to place for adoption as a choice, but they also considered the decision to raise a child and the decision to have an abortion as reproductive choices that should be available to women.[190] Therefore, they were often crosswise with both conservative pro-life organizations that wanted to use adoption as a way to prevent both abortion and single-parent families and with liberal feminist organizations that wanted to focus on women’s rights to choose abortion without focusing on motherhood as a choice.[191]

CUB objected to President Reagan’s focus on birth mothers as weak and incompetent, easily tricked into abortions; to the idea that abortion was worse for women than adoption placement was; and to ignoring the pain and loss birth mothers felt while benefiting adoption agencies seeking to commodify the babies they carried.[192] Birth mothers saw themselves as the “the forgotten people” in adoption and argued that birth mothers were neither helpless nor heroic.[193]

CUB’s focus on supporting teen mothers who decided to parent their children resulted in a loss of funding from the Ms. Foundation, which is the feminist Ms. Magazine.[194] The Foundation objected to what they saw as CUB “giv[ing] more support to the teenager who chooses motherhood than one who chooses abortion or adoption.”[195] CUB protested the decision, positioning themselves as equally feminist as the Foundation, but with a concept of “choice” that was more inclusive.[196] Indeed, the president of CUB concluded, “We are each feminists and feel our sisters [Ms. Foundation feminists] have adopted values that are anti-choice.”[197] As Professor Heinemann puts it:

Birthmothers of CUB judged matters of abortion and adoption against the background of their personal stories. Mostly, they had experienced adoption as a great personal loss or even trauma that required healing. Consequently, they considered legal abortion an important alternative in the case of an unwanted pregnancy which should not be abridged or devalued. However, legal abortion figured as one possible choice—besides keeping the baby or consenting to (open) adoption.[198]

CUB’s view of “choice” rejected the societal assumption that, for single women who were pregnant, abortion and adoption were the only available solutions. Parenting the child was a choice as well.

4. Choosing Adoption as a “Brave Choice” Today

The notion that adoption is a “brave” choice for an unexpected pregnancy is still utilized today. Consider the organization Brave Love, founded by an adoptive parent in 2012 to “change the perception of adoption through honest, informative, and hopeful communication that conveys the heroism and bravery a birth mother displays when she places her child with a loving family through adoption.”[199] A search of their website for the word “brave” brings up 460 results; “hero” provides 91 results. I first learned of the organization when an adoptive parent told me about her daughter’s sixth grade class project. Students were asked to bring in superhero cards and jigsaw puzzles for expectant mothers considering adoption placement to praise them for their “brave love” in relinquishing their children. She and her daughter were disturbed by how disconnected the project seemed to be from the realities of these mothers’ lives in crisis. Her daughter, who knew about adoption loss as an adoptee, suggested they instead collect baby supplies so the mothers might choose to parent with support.

The organization promises honest information for women facing a crisis pregnancy and states pointedly that it is not an adoption agency, but it touts the fact that it partners with thirty-five adoption agencies and lists over one hundred agencies that it “highly recommend[s].”[200] Brave Love asserts that it is not a pro-choice or antiabortion organization,[201] but it does not publicly partner with any organization that provides abortions.

The narrative that adoption supplants the need for abortion, as relied upon in Dobbs’ holding, has emboldened antiabortion people to prioritize convincing mothers to choose adoption (not parenting, mind you). The day after Dobbs was issued, the Christian Post published its prescription to “reset and revive the adoption alternative,”[202] relying on their usual playbook, like Reagan’s, of situating adoption placement as brave love.

5. Adoptees Speak Out

Adoptees also have opinions about abortion and its connection to adoption. Most adoptees have a story where someone told them they were lucky they were not aborted (my adopted children certainly do), and many people seem to believe that adoptees must be antiabortion. Yet there are adoptee activists who are decidedly pro-choice.[203] Adoptee and professor Michele Merritt, co-founder of Adoptees for Choice—a coalition of adoptees speaking into the reproductive rights debate and rejecting the appropriation of adoptees’ lived experiences without their consent—explained that “adoption is not a viable alternative to abortion.”[204] Adoptees see clearly that adoption is not a painless option for those involved, living as they do with the loss, grief, and identity issues of adoption.

Professor Merritt goes on to note that adoptees often answer “[y]es” to the question, “Would you rather have been aborted?”[205] And Professor Kimberly McKee, an international adoptee, notes that the corollary to that question is, “I should be grateful for not having been aborted,” a way to discredit critiques about adoption from adoptees who fail to express the expected gratitude.[206]

6. Summary

With organizations as disparate as pro-life groups using Reagan’s ideology of adoption over abortion, the Ms. Foundation privileging abortion rights over choosing to parent, and Brave Love abjuring both but pushing adoption, antiabortion groups seem to accept the prevailing social narrative of adoption as a social good and thus its superiority to abortion. To do so, antiabortionists must ignore the voices of birth parents and adoptees, the groups most directly affected by the practice of adoption.

One of the dangers of blindly accepting the narrative of the inherent good of adoption is a tendency to fall into a teleological ethical trap, where “the rightness of any action is determined by the goodness of its consequences.”[207] Society valorizes adoption as the joyous creation of a family that has rescued a needy orphan, saving the poor child from a stunted life of despair. Given the goodness of the consequences of adoption, how can one question it? This view allows teleologists to ignore moral dilemmas about how racism, patriarchy, and poverty shape adoption and to ignore what birth parents and adoptees tell us about the harms of adoption. “Taken to an indefensible extreme, a strict teleologist might argue that it is acceptable for prospective adoptive parents to lie to a birth parent about their intentions to maintain contact” if it would facilitate “an adoption that would be in the best interest of the adopted child.”[208]

Ends-justifies-means thinking that starts from the positionality of adoption as a social good permits us to ignore ideologies, practices, and policies that funnel poor and minority children into heteronormative families while minimizing the harms of adoption to adoptees and birth parents. In the next Section, I review how moral philosophers have been complicit in the creation of the belief that adoption is an unmitigated social good and navigate through various themes in the philosophical discourse surrounding the morality of adoption.

B. Justifying Adoption as the Morally Superior Choice

There is a considerable body of literature exploring the moral philosophy of abortion.[209] But while moral philosophy has paid considerable attention to the morality of abortion, it has paid less attention to the morality of placing a child for adoption. Most who have addressed the issue conclude that placement for adoption is a moral good, in appropriate circumstances. And almost all who have written on adoption are men.[210]

1. Adoption Relinquishment as Virtuous

By minimizing the pain of adoption to birth parents and privileging the desires of adoptive parents, moral philosophers can posit that “relinquishing of an infant by a birth mother, as long as her decision is made freely, should be viewed as virtuous.”[211] Philosopher Stephen Post acknowledges that adoption relinquishment causes trauma and grief to the birth mother, but he adds that “women who relinquish an infant freely and altruistically do not suffer unbearably from their grief.”[212] He also finds adoption relinquishment virtuous because adoption gives infertile couples the opportunity to parent, which is “an opportunity for moral growth in the parent.”[213] In fact, he opines, “I would have no objection to a couple’s conceiving a child (absent any financial incentives) for the specific purpose of relinquishing it to a childless couple . . . .”[214]

The conception of adoption relinquishment as virtuous relies on the “othering” of birth mothers and minimizing their pain, especially as compared to the needs of infertile adoptive parents. Conspicuously absent from this account of the morality of adoption is any consideration of the adopted child. A common aphorism among adoption professionals is that adoption is a child welfare mechanism to supply parents to children who need them, and not a mechanism to provide children to parents who want them.[215] Yet Post is fine with the concept of creating children solely to satisfy the desires of infertile couples.[216] Though he expresses some concerns about the traumatic effect of adoption relinquishment on birth mothers, he shows no inkling of understanding of the traumatic effect on adoptees of being created by one’s birth parents solely for the purpose of being given away.[217]

2. A Duty to Adopt

One way to paint the moral superiority of adoption is to assert not just a right to adopt, but an obligation to do so. Considering that there are millions of children worldwide who are without parental care (there are those deceptive UNICEF figures again), the moral response is a duty to adopt.[218] Philosopher Daniel Friedrich argues that the general duty to assist those in need supports the duty to adopt: “The argument for a duty to adopt starts with the idea that if we can protect others from serious harm at little cost to ourselves we morally ought to do it.”[219] He rejects arguments that entering intimate relationships should be exempt from such a duty[220] and that feelings and emotions should be accounted for in decisions to adopt.[221] He concludes, “It is of course true that intimate relationships without affection and mutual concern are deeply deficient, but entering a relationship in part because one sees the other as standing in need of protection does not rule out forming a relationship rich in affection and mutual concern.”[222]

Friedrich’s approach is not child-centered, despite his solicitude for orphans. He is only interested in their material needs, as love and affection are not needed but perhaps will develop in time. He acknowledges that asymmetrical relationships, where one person is seen as an object of charity and the other seen as the savior, is contrary to the ideal of equality in authentic relationships, but he feels no such equality is necessary between parents and young dependent children.

There are at least two problems with his reasoning. First, adopted children grow up to be adopted adults. They will not always be dependent on the care of a parent, yet Friedrich seems to put them into the category of perpetual children. Second, the psychosocial literature about adoptees shows the corrosive effects of a parent-child relationship rife with positions of charity and saviorism.[223] In one study of transracial adoption, adoptees felt that the White savior ideology “altered how adoption was discussed within the family, with an emphasis on the gratitude that adoptive children should feel for being chosen by white American parents.”[224]

Building on Post’s and Freidrich’s valorization of adoption as the moral choice, Raymond Herbenick characterizes adoption as morally superior to abortion and Lindsay Porter challenges that view.

3. Comparing the Morality of Adoption and Abortion

Philosopher Raymond Herbenick sought to re-envision a mother seeking an abortion as abandonment of a child, thus making the child available for adoption as a ward of the state.[225] A person seeking an abortion, in his view, abandons the fetus by saying “no to pregnancy and childbirth as well as to the future care and support of one’s natural child while in utero and at birth.”[226] Of course, under this theory, the abortion would be denied, for “[t]heir voluntary consent to a medical abortion is sufficient for the state to intervene by regulatory laws to provide opportunities prior to an abortion for adoption by interested citizens, or for the state itself to place the child in custody in utero as a ward of the state.”[227]

This dystopian version of adoption and abortion—where pregnant persons who seek abortions are detained by the state because they have “abandoned” the fetus inside them—seemed like an outgrowth of The Handmaid’s Tale[228] when I first read it before Dobbs. Now it reads like a blueprint for states that have banned abortion. The plan is perfect for their purposes; it divides the pregnant person and the fetus, making them adversaries, with the pregnant vessel simply an incubator for the fetus. It condemns abortion by terming it “abandonment” and then uses that abandonment as automatic grounds for stripping the child from the mother and placing the child for adoption. Though, perhaps if a state were to actually enact such a plan, the courts might take seriously the idea that banning abortion violates the Thirteenth Amendment’s prohibition on slavery.[229]

Herbenick sees the state’s role as asserting “its legitimate redistributive interests on behalf of minorities denied the equal opportunity of parenthood.”[230] And who are those denied the equal opportunity of parenthood? “[T]he father of a human fetus; the one in ten couples whose marriage is naturally child-less; a woman or man not desirous of marriage but desirous of, and qualified for, childrearing; a couple who wish to adopt a child rather than naturally bear children because they are concerned about over-population.”[231] Thus, Herbenick positions himself as asserting the interests of adoptive parents and the biological father, without a nod to any autonomy rights of the mother to avoid pregnancy or to make an adoption decision. The pregnant person is a portable incubator, giving birth for the benefit of others, not herself.

In Adoption Is Not Abortion-Lite, philosopher Lindsay Porter challenges the assertion that adoption is morally superior to abortion. She tackles the assumption made when discussing abortion that the pregnant person “could give the baby up for adoption instead,” finding the supposition to be “false in virtually all contexts.”[232] She posits that as a matter of moral philosophy, placing a child for adoption does not relieve a parent of parental responsibility; while placing a child may relieve the parent of day-to-day care and legal responsibilities, the ultimate moral obligation to care for the child remains.[233] She imagines a situation where the birth child may need a kidney, or the adoptive parents become destitute, or the child is being abused: “In this case . . . the makers of the child are obligated to assist. It simply does not do to say ‘but I’m not the parent anymore’. To do so would be monstrous.”[234]

Porter’s assessment of a continuing moral obligation as a parent, even after adoption placement, is consistent with what birth mothers say after they have placed a child for adoption: it does not change their conception of themselves as mothers. Rebutting the myth that birth mothers can relinquish and move on with life forgetting the child, studies indicate that birth mothers experience the “psychological presence of the relinquished child.”[235] Birth mothers sometimes “described discomfort with the term ‘birth mother,’” as they consider themselves mothers unmodified.[236]

In Porter’s view of the continuity of moral parenting, then, abortion and adoption do not accomplish the same thing—relieving the parent of the obligation of parenting. “Adoption simply cannot function as a stand-in for abortion. . . . Put simply, there is no way other than abortion to have an abortion.”[237] Adoption does not protect a woman from the physical or medical consequences of pregnancy that might include death, nor the domestic violence often triggered by pregnancy, nor the stigma of appearing pregnant when not married, nor the discrimination in the workplace that may include job loss, nor the grief and loss of relinquishing for adoption and knowing they have a child in the world whom they can never know. Adoption cannot serve as a substitute for abortion.

But what about moral philosophy and adoptees? In particular, what do moral philosophers have to offer in assessing claims of adoptees that adoption causes them harms of family separation, engrafting them onto another family without their consent, changing their identities and hiding their original birth certificates, making privacy claims on behalf of birth parents in order to hide information about their origins, and the like? There is little written about these issues “because the dominant social narrative, at least in the United States, depicts adoption as an overwhelmingly positive phenomenon.”[238] Yet some adoptees who are also accomplished moral philosophers are beginning to speak out.

4. Adoptees as Moral Philosophers

Because of the history of secrecy in adoption, it is perhaps unsurprising that writings by adoptees about adoption and abortion are somewhat sparse. That is changing as attitudes toward adoption are including increased openness.

Michele Merritt problematizes the dominant social narrative of adoption from the perspectives of a philosopher and adopted person.[239] She views infant adoption as involving premature maternal separation analogous to philosophical accounts of trauma as “world-loss.”[240] As a newborn’s world is small—centering on the mother—separation is the “loss of a world” that signifies trauma in adoption.[241]

Kimberly Leighton also writes from the dual perspectives of adoptee and philosopher.[242] She embraces her identity as “being adopted,” while disclaiming that being adopted “left me without an identity, left me missing something, or in a position in which something was hidden from me.”[243] She does not ground adoptee identity in biology,[244] recognizing instead that “adoption involves social, cultural, and historical events.”[245] From that vantage, she recognizes that adopted identity is a “position of contingency and ambiguity,”[246] since her identity could always have been different if she had been adopted by different parents. Adoptive identity for her, then, is “constitutively arbitrary.”[247]

Still, she confesses discomfort in the contingency and ambiguity of being adopted: “But, the truth is, I have always wanted to know. My identity as adopted has always involved a ‘desire to know . . .’ such that my being adopted, my experience of myself as an adopted person, has been defined by and in relation to this desire.”[248] So while she disclaims the importance of biological connections in adoptee identity, she reveals the importance of knowing about her biological progenitors.

Philosophical critiques of adoption often take adoption as a given, and only critique certain practices in adoption. For example, ethics in adoption focus on issues like payments to birth parents, coercive practices that might lead to relinquishment of parental rights, global patterns of adoption that move children from the poorest countries to the wealthiest countries, the disparate separation of Black families in the welfare state, and the problem of commodification of children inherent in a for-profit adoption system.[249] These are all important issues and should be considered carefully in assessing the social good represented by adoption. Yet many valorize adoption under the assumption that it can, in fact, be perfected and that it is helpful, not harmful, to adoptees and birth parents. And it is this illusion of perfection, rather than the realities of adoption, that is weighed against abortion and found to be superior by those like Justices Barrett and Alito.

The next Section examines the ways in which arguments about harms caused by abortion, taken together with assertions that adoption causes no harm and is an unqualified good, skew the moral calculus in comparing adoption and abortion.

C. Abortion, Adoption, and Harm

One strategy for presenting adoption as a preferred substitute for abortion is to assert that abortion causes a litany of harms to women. As feminist legal scholar of abortion Reva Siegel has noted, “Gender-based arguments against abortion embed claims about protecting the unborn in an elaborate set of arguments about protecting women.”[250] She illustrates this national strategy with the words of antiabortion movement leaders, including Clarke Forsythe, head of Americans United for Life. Forsythe said that to counter the argument that abortion is a “necessary evil,” the movement needed “to raise public consciousness of the negative impact of abortion on women. If it can be shown that abortion harms women as well as the unborn, it will not be seen as necessary.”[251]

1. Harms for Women Having Abortions

The claimed harm to women includes physical harms—like increased risk of breast cancer—which have been rejected by reputable cancer organizations like the National Cancer Institute and rejected in reputable medical journals like the New England Journal of Medicine and the Lancet.[252] Sometimes antiabortion advocates argue that abortion causes women psychological harm. Siegel describes the alleged psychological harms to women in the South Dakota Task Force Report, used to justify its legislative abortion ban: “The Task Force Report asserts that a cascade of mental health disorders attend abortion, including bipolar disorder, depressive psychosis, neurotic depression, schizophrenia, guilt, anger, post-traumatic stress disorder, and suicidal ideation.”[253]

That litany of asserted psychological harms caused by abortion appears ludicrous in light of the long-time judgment of the American Psychological Association studies that show “no differences in the mental health of women who terminated a single unintended pregnancy compared with other groups of women.”[254] The studies that antiabortion activists rely on for the negative effects of abortion on women’s mental health suffer from methodological defects, the most serious of which is not having a control group or comparing women who had abortions with faulty comparators.[255] “Most studies used inappropriate comparison groups such as women who had never been pregnant, women who had given birth to a (presumably) wanted child, or women who had miscarried a (presumably) wanted child.”[256]

One study that has managed to avoid the comparator problem is the Turnaway Study.[257] This nationwide, longitudinal study compares abortion-seeking women, some of whom secure the wanted abortion and some of whom are denied because they are beyond the gestational limits of the clinic.[258] Both groups of women are similarly situated—they are seeking a wanted abortion for an unwanted pregnancy, and they are at a similar stage in their pregnancies. How do these two groups of women compare?

First, considering physical health, “women who had a first- or second-trimester abortion reported similar physical health to those that gave birth after being denied a wanted abortion. Of note, when differences did emerge, they were in the direction of worse health among those giving birth.”[259] Many women who were denied a wanted abortion continued their pregnancies and suffered pregnancy complications like preeclampsia (a potentially life-threatening condition), gestational hypertension (a precursor to preeclampsia), and gestational diabetes.[260] Tragically, two of the 161 women who were denied their wanted abortions and gave birth died due to pregnancy complications.[261]

Second, the Turnaway Study also examined mental health and well-being in women who sought and obtained a wanted abortion and those who sought a wanted abortion and were denied.[262] Women denied a wanted abortion initially experienced more anxiety, had lower self-esteem, and experienced lower life satisfaction than those who secured abortions; both groups of women experienced similar levels of depression.[263] Similarly, having an abortion did not increase risk of suicidality over women denied an abortion.[264]

How do the effects of abortion compare to those related to continuing a pregnancy and relinquishing the child for adoption?

2. Harms for Women Who Placed for Adoption

Much of the rhetoric about adoption is that it is an unmitigated good for all involved. But there are psychosocial studies showing that birth mothers do experience issues related to adoption placement. In a recent study, Gretchen Sisson focused on women who had relinquished a child for adoption between 1962 and 2009.[265] She found that over half “described their adoption experiences as predominately negative.”[266] Mothers in closed adoptions were more likely to describe the decision to place as coerced: “These participants felt they had no options available to them other than adoption.”[267]

Some studies of birth mothers post-relinquishment have found “reports of satisfaction with the relinquishment decision and favorable outcomes on some sociodemographic and social psychological outcomes,” while other studies reveal that birth mothers experience long-term negative effects of adoption relinquishment on emotions and well-being, including “lifelong symptoms of depression, anxiety, and posttrauma.”[268] In one study, the majority of birth mothers reported “no decrease in feelings of sadness, anger, and guilt since their relinquishment up to 30 years [before].”[269] Birth mothers report feeling unlovable.[270] These feelings can cause birth mothers future difficulties in attaching to romantic partners and subsequent children.[271] Issues with future parenting include “intense attachment to and overprotection of children born to and raised by birthmothers after the placement of a child for adoption.”[272]

Closed adoption, with its consequent secrecy, caused more psychological harm to birth mothers than did open adoption. Birth mothers who kept the adoption relinquishment a secret feared that others would reject them if the secret were discovered.[273] Birth mothers experienced what one researcher calls the “psychological presence” of the relinquished child, discrediting the frequently asserted notion that birth mothers would forget about the relinquishment experience and continue on their pre-pregnancy life trajectory.[274] Perhaps this is why modern trends toward more openness in adoption appear to help birth parents in adjusting to adoption in a number of ways.[275] Birth mothers benefit from continued post-adoption contact and experience less grief when they know that their children are happy in their adoptive homes.[276] But, in one study, the group that scored worst in grief resolution was birth mothers who initially had continuing contact, but for whom the contact ceased.[277] Cessation of contact is a prevalent problem with promises of open adoption and continuing contact, because in many states that promise is not binding and enforceable; promising openness that cannot be enforced is one of the potentially coercive practices that can induce invalid consent.[278]

3. Harms for Adoptees in Adoption

Adopted persons are not unscathed by adoption either. Adoptees may experience adoption not as the exclusively happy event that adoptive parents and society ascribe to it, but as a more nuanced experience.[279] And when only relentless positivity is permitted when talking about adoption, adoptees who have more ambivalent feelings experience cognitive dissonance. Adoptees may experience adoption as a profound loss—loss of family, loss of culture, loss of language, loss of all sense of familiarity—despite the “replacement” of the lost birth family by adoptive family.[280] While adoption often has a positive effect on adoptees, especially when compared to foster care or institutional care,[281] psychological studies show issues that many adoptees face throughout their lifetimes.[282] Many adoptees struggle with adoption identity issues, which may explain high levels of behavioral problems reported in adopted children and adolescents,[283] as well as the fact that they are significantly overrepresented in mental health care facilities.[284] Studies have also shown an increased risk of suicide and suicide attempts by adoptees.[285] Adoptees may fear abandonment and rejection and experience issues with trust and attachment that affect future relationships.[286] Because of cultural biases that favor biological families, adoptees may face stigma and microaggressions associated with being adopted.[287]

When comparing harms caused by abortion and harms caused by adoption to biological parents, a realistic view chips away at the argument that adoption is a perfect substitute for abortion. The myths of abortion harms—that abortion causes physical and psychological harm to women—have been debunked. Likewise, adoption myths about the benign effect on adopted persons and birth parents have also been proven untrue for a sizeable cohort. Yet these myths serve as the basis for legislation and caselaw about consent, requiring careful counseling of those seeking an abortion to prevent rampant alleged coercion and allowing adoption consent to pass without scrutiny.

Section II.D examines legislation and caselaw about consent in abortion and the disparate treatment of consent in adoption. This Section also considers states’ treatment of causes of action for allegedly coerced abortions. Overall, this section posits that the law is unconcerned with the coercion of women, except to the extent that it can be used as a tool to prevent abortions.

D. Abortion, Adoption, and Consent

Antiabortion groups assert that the availability of abortion allows women to be coerced into choosing abortions they do not want. The Elliot Institute, a purported research organization that operates online under the names and, states that “most abortions are unwanted, are coerced and many are forced, sometimes violently.”[288] They report that 64 percent of abortions are unwanted or coerced.[289] Because of this, they have proposed model legislation for passage in all states that makes it medical malpractice for healthcare providers who provide abortion care not to screen for “risk factors” for psychological harm from abortion, including coercion.[290] The model act further provides that a woman can sue for wrongful death of a fetus if she was not screened as provided for in the act.[291]

1. Consent, Coercion, and Abortion

The concern that women are coerced into abortions they do not want seems little more than an excuse to regulate abortion rather than to protect women from coercion.[292] Firstly, the larger problem of coercion is with women who are coerced into foregoing an abortion and continuing a pregnancy.[293] There are no legislatively mandated statutes requiring counseling of women continuing pregnancies to ensure they are not coerced. Legislatures fail to address the real problem—the fact that men seek to exercise control of pregnancy outcomes, which includes both men who attempt to force a partner to have an abortion and men who seek to prevent a partner’s abortion.[294] Legislatures’ “one-sided emphasis on only penalizing partners and health care providers involved in coerced abortions does not adequately address the danger a woman is in who is experiencing reproductive control” that involves coerced births.[295] As Reva Siegel noted, in discussing so-called “women-protective” abortion restrictions, these kinds of singular-focused legislative enactments that ignore women’s well-being in other contexts are “suspiciously selective, more concerned with control than care, and susceptible to status-based judgments when aimed at poor women and women of color.”[296]

Secondly, states’ purported concern about coerced abortions has not given rise to a cause of action allowing money damages for coercion, fraud or undue influence that induces abortion consent. In Perry v. Atkinson,[297] the plaintiff unsuccessfully sued her married paramour for fraud, deceit and intentional infliction of emotional distress after he urged her to have an abortion and promised to have a child with her in a year.[298]

The court rejected the causes of action on the grounds of privacy in matters of procreation.[299] Similarly, in M.N. v. D.S.,[300] the court rejected the plaintiff’s claim that she suffered a battery because of the unwanted abortion into which the defendant coerced her by claiming he would leave his wife and marry her if she had the abortion.[301]

Finally, states’ concern about women being coerced into making reproductive and parenting decisions is not present in how legislatures and courts treat consent to adoption. While stating that coercion will vitiate consent, states do not apply the law in a way that indicates their concern with coercion in adoption. Instead, the concern for coercion of women masks the actual concern—that the fetus be brought to term. If a woman is coerced into pregnancy and into continuing the pregnancy and foregoing abortion, the state offers no solution. If the abortion has already happened, the concern about coercion falls away in cases where women seek to recover damages for coercion that induced an unwanted abortion. And given that in adoption the child is already born, the state does not focus on the interests of the woman in avoiding coercion inducing her relinquishment of the child for adoption.

These disparate ways legislatures treat coercion in abortion and adoption seem consistent when considered against the backdrop of the binary and simplistic belief that abortion is wrong and adoption is right. Consent to abortion is tightly scrutinized, with counseling requirements and laws that require waiting periods for women to decide—not out of concern for coercion but in order to make abortions difficult to obtain. This tight scrutiny of abortion consent is reflective of the belief of some that abortion is wrong and stands in stark contrast with the more laissez-faire attitude toward adoption consent,[302] as adoption is viewed as morally superior to abortion.

If legislators were serious about lowering abortion rates, or even concerned about women being coerced into adoptions or abortions they do not want, the best response would not be mandating waiting periods and counseling pregnant persons to choose adoption—a choice most women have considered and eliminated before seeking an abortion—but providing for paid family leave, affordable housing, free childcare, affordable health care, and a universal basic income. These social programs would also ensure that any consent to adoption was unconstrained and freely given. Given what we know about how children are tracked into adoption because of racism, patriarchy, and poverty, robust social programs would be the logical response.


In the Moral Case for Abortion, Ann Furedi says: “Abortion sweeps up and collects together attitudes to sex; to death and life; to women’s roles, responsibilities and their freedoms; to children and family life; to our understanding of humanity and personhood; and to our attitude towards self-determination, individual agency, personal autonomy and tolerance.”[303] Yet when issues are so complicated, we seem to want to create simple binaries of right and wrong, good and bad. That is what leads to the commonly voiced aphorism: “She could give the baby up for adoption instead.”[304] This is Justice Alito’s instinct in suggesting that abortion is not necessary in a world where adoption—simple, clean, and easy adoption—exists.

Yet adoption is not simple, clean, or easy. Adoption is a complex amalgam of business enterprise and social welfare program. It takes advantage of racism, patriarchy, and poverty to create the “domestic supply of infants” necessary to meet the needs of mostly White adoptive parents. And it takes pains to present itself as wholly positive for birth parents, adoptees, and adoptive parents. Against that idealized picture of adoption, legislators and judges create law where adoption is the perfect substitute for abortion. But this is only possible if we ignore the more complex and ambivalent view of adoption that we become familiar with by listening to birth parents and adopted persons.

We rarely hear arguments that abortion is a social good; we couch the argument in terms of privacy and the belief that pregnant persons should get to choose for themselves what morality requires of them in this highly contentious area. But listening to reasons why women choose to have an abortion shows how it is a social good. Consider Jessica: “It was one of those ‘pick between possibly maybe being okay while pregnant – possibly maybe – or dying.’ . . . Knowing my husband, if something happened to me, he wouldn’t take care of my kids. He doesn’t take care of them now.”[305] In the Turnaway Study, 60 percent of women seeking an abortion already had children, and half of them said they sought an abortion so they would be able to take care of the children they had already.[306] As the results show, women denied abortion were rightly concerned about what this unwanted pregnancy would do. Compared to the previously born children of women who received an abortion, the previously born children of those turned away were, because of the unplanned addition of another child to the family, more likely to live in poverty and to be on government assistance and more likely to be delayed on achieving developmental milestones.[307] Even without children in the mix, women denied the abortion they wanted “were much more likely to end up living in poverty than the women who got their abortions.”[308]

Abortion can be good for families and for women. That complicates the picture of abortion as morally wrong. Adoption tears apart one family before creating another one. That complicates the picture of adoption as morally right. Situating abortion and adoption on a moral continuum with adoption as the ideal substitute for abortion prevents an accurate appraisal of the truth about adoption. Those who oppose abortion have no interest in addressing issues that complicate the usual myth that adoption is a harmless, simple win-win-win arrangement that moves needy children into happy homes while birth parents and adoptees forget all about their former connection. The truth is that adoption today is less a social welfare intervention to provide homes for needy children and more a business designed to produce children for parents who want them and who can pay the exorbitant fees. Adoption relies for its very existence on deeply embedded societal inequalities—racism, patriarchy, and poverty—to funnel children into the stream of adoption commerce. Rather than a happy and painless substitute for abortion, adoption causes pain and loss, often lifelong, for adopted persons and birth parents.

Abortion is a decision about whether to continue a pregnancy; adoption is a decision about whether to parent. As Lindsey Porter clearly and succinctly puts it: “Adoption simply cannot function as a stand-in for abortion. . . . Put simply, there is no way other than abortion to have an abortion.”[309] Positioning adoption as the perfect substitute for abortion reckons with neither the realities of adoption nor of abortion.


*Professor of Law, Texas A&M University School of Law. As should be the case for all those who opine about adoption, I wish to note my position in the adoption triad. I am an adoptive parent who adopted internationally. As is all my work, this article is dedicated to my children’s birth parents, who faced circumstances no parent should have to face and made choices that no parent should have to make. I wish to acknowledge the exceptional work of the editors of this law review: Elizabeth Bird, Hannah Borowski, Rachel Heumann, Melissa Kline, and Michelle McEwen. I especially appreciate the input of Michelle McEwen, who showed courage in making valuable contributions in the sections on racism in adoption. I also appreciate the usually unthanked work of the 2L members who helped with cite check (since I use so many nonlaw sources I know it is a definite burden!), including Benjamin Johnson, Celene Olguin, Colleen Kennedy, Mallory Shaner, Mikaila Kalani Wahl, Natalie Tiggleman, Sebastian Blitt, Taylor Courchaine, and Zachary Michael Dube. Thank you. Of course, any errors are my own.

  1. Shaker Anonymous, Breaking the Silence: On Living Pro-Lifers’ Choice for Women, Shakesville Blog (Mar. 17, 2009), http://‌‌/2009‌/03‌/breaking-silence-on-living-pro-lifers.html [https://‌‌/V5JS-MMG7].
  2. Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 Duke L.J. 1077 (2003). In this foundational article, Naomi Cahn looked at how adoption practice sought to create families that were the “perfect substitute” for the biological nuclear families. It seems natural to credit her as I examine how adoption is now presented as the “perfect substitute” for abortion.
  3. Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
  4. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
  5. Id. at 258–59. Safe haven laws provide designated sites like hospitals, fire stations, churches, and even adoption agencies, where a person can drop off an infant without providing identifying information, with the promise that they will not be later prosecuted for child abandonment. Evan B. Donaldson Adoption Institute, Unintended Consequences: Safe Haven Laws Are Causing Problems, Not Solving Them (2003). Babies who are abandoned this way are attractive to prospective adoptive parents. When media run stories about a child who was found abandoned, the response from the public is immediate—police will receive hundreds of calls from hopeful adoptive parents wanting to adopt the child. They are driven by charitable impulses to rescue the child, and attracted to the idea that the child’s birth parents are unknown and likely unfindable. Laury Oaks, Giving Up Baby: Safe Haven Laws, Motherhood, and Reproductive Justice 164–65 (2015).
  6. Dobbs, 597 U.S. at 258.
  7. Transcript of Oral Argument at 56, Dobbs v. Jackson’s Women’s Health Org., 597 U.S. 215 (Dec. 1, 2021) (No. 19-1392).
  8. Peter Baker & Susan Saulny, At Notre Dame, Obama Calls for Civil Tone in Abortion Debate, N.Y. Times (May 17, 2009), https://‌‌/2009‌/05‌/18‌/us‌/politics‌/18obama.html [https://‌‌/7GPL-R7A8].
  9. Ai-ris Y. Collier & Rose L. Molina, Maternal Mortality in the United States: Updates on Trends, Causes, and Solutions, 20 Neoreviews 561, 562 (2019).
  10. Id.; Claire Cain Miller, Sarah Kliff & Larry Buchanan, Childbirth Is Deadlier for Black Families Even When They’re Rich, Expansive Study Finds, N.Y. Times (Feb. 12, 2023), https://‌‌/interactive‌/2023‌/02‌/12‌/upshot‌/child-maternal-mortality-rich-poor.html [https://‌‌/WS5B-8PKD].
  11. Amanda Jean Stevenson, The Pregnancy-Related Mortality Impact of a Total Abortion Ban in the United States: A Research Note on Increased Deaths Due to Remaining Pregnant, 58 Demography 2019, 2020 (2021).
  12. Amanda Jean Stevenson, Leslie Root & Jane Menken, The Maternal Mortality Consequences of Losing Abortion Access (2022) (unpublished manuscript) (on file with author).
  13. This is not an inexorable necessity of adoption, just the way in which adoption is practiced in the United States today. See Malinda L. Seymore, Inconceivable Families, 100 N.C. L. Rev. 1745 (2022) (arguing that adoption should be seen as additive, not subtractive, with adoptees retaining birth parents as legal parents).
  14. Anthea Hendry & Penny Netherwood, A Child at Last: Adoption After Infertility, in Adopting After Infertility: Messages from Practice, Research, and Personal Experience 151 (Marilyn Crawshaw & Rachel Balen, eds., 2010).
  15. Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families – and How Abolition Can Build a Safer World (2022).
  16. Gretchen Sisson, “Choosing Life”: Birth Mothers on Abortion and Reproductive Choice, 25 Women’s Health Issues 349, 351 (2015) [hereinafter Sisson, “Choosing Life”]; Gretchen Sisson, Who Are the Women Who Relinquish Infants for Adoption? Domestic Adoption and Contemporary Birth Motherhood in the United States, 54 Perspectives on Sexual & Reproductive Health 46, 49 (2022) (Sixty-four percent of relinquishing birth mothers in this study reported income less than $5,000 per year).
  17. See discussion infra, at text accompanying notes 265–279.
  18. See discussion infra, at text accompanying notes 280–288.
  19. Femmie Juffer & Marinus H. van IJzendoorn, Behavior Problems and Mental Health Referrals of International Adoptees: A Meta-analysis, 293 J. Am. Med. Ass’n 2501, 2507 (2005) (noting that adoptees, both domestic and international, exhibited more behavior problems than nonadoptee controls and were overrepresented in mental health referrals).
  20. Margaret A. Keyes, Stephen M. Malone, Anu Sharma, William G. Iacono & Matt McGue, Risk of Suicide Attempt in Adopted and Nonadopted Offspring, 132 Pediatrics 639 (2013) (odds of a reported suicide attempt were approximately four times greater in adoptees compared with nonadoptees); Gail Slap, Elizabeth Goodman & Bin Huang, Adoption as a Risk Factor for Attempted Suicide During Adolescence, 108 Pediatrics 1, 1 (2001) (reporting an increased risk of suicide among American adoptees living with an adoptive parent when compared to those living with a biological parent).
  21. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 259 n.46 (2022) (citing Centers for Disease Control, Adoption Experiences of Women and Men and Demand for Children to Adopt by Women 18–41 Years of Age in the United States 16 (2008)). Here we see making abortion illegal as a way to increase the “domestic supply of infants,” when adoption should really be about finding families for needy children rather than creating children to satisfy the needs of prospective adoptive parents. Id.
  22. Malinda L. Seymore, Adopting Civil Damages: Wrongful Family Separation in Adoption, 76 Wash. & Lee L. Rev. 895, 903 (2019).
  23. Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. Leg. Stud. 323, 324, 327 (1978).
  24. Ashley Albert & Amy Mulzer, Adoption Cannot Be Reformed, 12 Colum. J. Race & L. 557, 583 (2022) (noting that private adoption results in billions of dollars in fees from adoptive parents, as well as billions in reimbursements and bonus payments for adoptions from foster care). An industry researcher pegs the revenue for adoption and child welfare services in the United States in 2023 at $24.7 billion. Adoption & Child Welfare Services in the US – Market Size, Industry Analysis, Trends and Forecasts (2024-2029), IBISWorld (March 2023), https://‌‌/united-states‌/market-research-reports‌/adoption-child-welfare-services-industry‌/#IndustryStatisticsAndTrends [https://‌‌/JK3G-3VNT].
  25. Elizabeth Raleigh, Selling Transracial Adoption: Families, Markets, and the Color Line 30 (2018).
  26. Gretchen Sisson, Estimating the Annual Domestic Adoption Rate and Lifetime Incidence of Infant Relinquishment in the United States, 105 Contraception 14, 17 (2022) (estimating 18,300 to 20,000 relinquished infants each year); Anjani Chandra, Joyce Abma, Penelope Maza & Christine Bachrach, Adoption, Adoption Seeking, and Relinquishment for Adoption in the United States, in 306 Advance Data From Vital and Health Statistics 1, 9 (Nat’l Ctr. For Health & Stat. ed., 1999) (estimating 14,000 infants placed for adoption each year). The differing figures result from each researcher using a different base figure. Sisson based her calculations on all births, while Chandra, et al. used unwed births as the base. Sisson then utilized a rate of 0.05 percent for placement, while Chandra, et al. used a rate of 9 percent.
  27. U.S. Dep’t of Health and Human Services et al., The AFCARS Report 1 (2022).
  28. Id. at 6.
  29. Julie Boatright Wilson, Jeff Katz & Robert Geen, Listening to Parents: Overcoming Barriers to the Adoption of Children from Foster Care 12 (Harvard Univ. John F. Kennedy Sch. of Gov’t, Faculty Working Paper No. RWP05-005, 2005), https://‌‌/publications‌/listening-parents-overcoming-barriers-adoption-children-foster-care [https://‌‌/6DMU-U4ZN].
  30. Adoption Statistics by Year, U.S. Dep’t. of State, https://‌‌/content‌/travel‌/en‌/Intercountry-Adoption‌/adopt‌_ref‌/adoption-statistics-esri.html [https://‌‌/3FVF-5949]. International adoption has been on a decline after a high of 22,987 children in 2004. In 2019, there were 2,971 children adopted, but it is unclear whether or how many adoptions were affected by COVID-19 travel bans. Id. There was a further decline in 2020, with 1,622 children adopted internationally, and a slight uptick in 2021 to 1,785. Id. Because of the precipitate decline in international adoption, one can safely assume the rates will continue to fall, even if unaffected by COVID-19, after a bit of a bounce-back after the pandemic is alleviated.
  31. Karen Balcom, Constructing Families, Creating Mothers: Gender, Family, State and Nation in the History of Child Adoption, 18 J. Women’s Hist. 219, 225 (2006).
  32. Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. Davis L. Rev. 1415, 1434 (2006).
  33. Johanna Oreskovic & Trish Maskew, Red Thread or Slender Reed: Deconstructing Prof. Bartholet’s Mythology of International Adoption, 14 Buff. Hum. Rts. L. Rev. 71, 79 (2008) (noting that 88.7 percent of UNICEF’s “orphans” have one living parent).
  34. Id. The fact that a child is in an orphanage is not a signifier that they are orphaned; in many developing countries, families place children in orphanages for education, for food during famines, etc. Id. The families maintain contact with their children in orphanage care and have no intention of relinquishing them for adoption. Id. at 80. The definition of “orphan” in U.S. immigration law is consistent with UNICEF’s one-living-parent standard. See 8 U.S.C. § 1101(b)(1)(F)(i) (2023) (A child is an orphan “because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption.”) (emphasis added); Kristen E. Cheney & Karen Smith Rotabi, Addicted to Orphans: How the Global Orphan Industrial Complex Jeopardizes Local Child Protection Systems, in Conflict, Violence and Peace 89, 91 (Christopher Harker & Kathrin Hörschelmann, eds., 2017).
  35. Seymore, Inconceivable Families, supra note 13, at 1747 (noting that the law permits a child to have no more than two parents, thus requiring that the birth parents’ rights be terminated prior to granting parental rights to adoptive parents).
  36. Amy Wilkinson-Hagen, The Adoption and Safe Families Act of 1997: A Collision of Parens Patriae and Parents’ Constitutional Rights, 11 Geo. J. on Poverty L. & Pol’y 137, 138–39 (2004) (noting that the vast majority of cases involve neglect rather than physical abuse).
  37. 1 Joan H. Hollinger, Adoption Law and Practice § 2.01[1] (2023).
  38. Mary O’Leary Wiley & Amanda L. Baden, Birth Parents in Adoption: Research, Practice, and Counseling Psychology, 33 Counseling Psych. 13, 21 (2005).
  39. See, e.g., D. Terri Heath, Qualitative Analysis of Private Mediation: Benefits for Families in Public Child Welfare Agencies, 20 Child. & Youth Servs. Rev. 605, 606–07 (1998) (describing and evaluating a federally funded pilot program where birth parents are offered mediation services which could lead to future post-adoption contact if they voluntarily relinquish parental rights).
  40. See Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, sec. 101(a), 111 Stat. 2115 (codified as amended at 42 U.S.C. § 671(a)(15)(D)(iii)) (permitting a parent’s rights to be terminated without offering reunification services (known as “fast-track termination”) if a parent has had parental rights to another child previously terminated).
  41. Heath, supra note 39, at 606–07; see, e.g., Tex. Fam. Code Ann. § 161.2061 (West 2023) (making clear that post-termination contact is only permissible if there is a voluntary termination of parental rights).
  42. Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, 1 Am. U. J. Gender & L. 1, 3 (1993).
  43. Dorothy Roberts, Shattered Bonds: The Color of Child Welfare 99 (2002); Shani King, The Family Law Canon in a (Post?) Racial Era, 72 Ohio St. L.J. 575, 601 (2011); Tanya Asim Cooper, Racial Bias in American Foster Care: The National Debate, 97 Marq. L. Rev. 215, 217 (2013).
  44. Roberts, Torn Apart, supra note 15, at 8.
  45. Id. at 6.
  46. Roberts, Torn Apart, supra note 15, at 100–01; Twila L. Perry, Transracial and International Adoption: Mothers, Hierarchy, Race, and Feminist Legal Theory, 10 Yale J.L. & Feminism 101, 115–16 (1998).
  47. Roberts, Torn Apart, supra note 15, at 100.
  48. Elizabeth Bartholet, Where Do Black Children Belong? The Politics of Race Matching in Adoption, 139 U. Pa. L. Rev. 1163, 1222 (1991).
  49. Ellen E. Pinderhughes et al., Unpacking Complexities in Ethnic-Racial Socialization in Transracial Adoptive Families: A Process-Oriented Transactional System, 33 Dev. & Psychopathology 493, 494 (2021).
  50. Id.
  51. Abbie E. Goldberg et al., White Parents of Adopted Black Children in an Era of Racial Reckoning: Challenges, Tensions, and Strategies, 84 J. Marriage & Fam. 1314, 1325–26 (2022) (identifying 20 percent of transracially adopting parents in study espousing a colorblind approach and minimizing the effect of race in their children’s lives); Caitlin Killian Drew & Nikki Khanna, Beyond Color-Blind and Color-Conscious: Approaches to Racial Socialization Among Parents of Transracially Adopted Children, 68 Family Rels. 260, 265–66 (2019) (while finding that transracial adoptive parents’ positions were more nuanced than the colorblind‌/color conscious binary, found that 41 percent of the parents “explicitly stated that race and ethnicity are not important in their child’s socialization”).
  52. Harrison Mooney, Invisible Boy: A Memoir of Self-Discovery 5 (2022).
  53. Id. at 242–43.
  54. Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption 393 (2003) (quoting Nat’l Ass’n of Black Soc. Workers, Position Statement on Trans-racial Adoptions (1972)).
  55. Multi-Ethnic Placement Act, Pub. L. No. 103-382, 108 Stat. 3518 (1994) (codified at 42 U.S.C. § 622) (prohibiting adoption and foster agencies that received federal funds from denying or delaying an adoption placement because of the race of the adoptive parents or the race of the child).
  56. Deborah Thibeault & Michael S. Spencer, The Indian Adoption Project and the Profession of Social Work, 93 Soc. Serv. Rev. 804 (2019).
  57. Thibeault & Spencer, supra note 56, at 807.
  58. Id.
  59. Id.
  60. 25 U.S.C. § 1901; Miss. Choctaw Indians v. Holyfield, 490 U.S. 30, 35–37 (1989).
  61. Adoptive Couple v. Baby Girl, 570 U.S. 637, 650–52 (2013).
  62. Malinda L. Seymore, Grasping Fatherhood in Abortion & Adoption, 68 Hastings L.J. 817, 832–38 (2017). Dusten Brown answered a text from the birth mother saying that he would relinquish his rights, but he explained at trial that he did so thinking he and the mother would reconcile and she would accept his previous proposal of marriage. Adoptive Couple v. Baby Girl, 731 S.E.2d 550, 553 (S.C. 2012), rev’d 490 U.S. 30 (2013). He was interested in raising the child with her and did not know she was placing the child for adoption. Id. Brown did not learn about the adoption placement until four months after the child’s birth, which was only days before he was deploying to Iraq with the U.S. Army. Id. at 555. He immediately hired an attorney to contest the adoption, and since he was deployed for nearly a year, the case was stayed under the Servicemember’s Civil Relief Act. Id. The trial court ruled in Brown’s favor under ICWA, and the ruling was upheld by the South Carolina Supreme Court. Id. at 567. After more than two years with the prospective adoptive parents, the child was given to the custody of Brown. She was in Brown’s custody for two years before the U.S. Supreme Court reversed, returning her to the custody of the prospective adoptive parents. Adoptive Couple v. Baby Girl, 490 U.S. 30 (2013).
  63. Rose Cuison Villazor, Commentary on Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), in Feminist Judgments: Reproductive Justice Rewritten 265, 269 (Kimberly M. Mutcherson, ed., 2020).
  64. Id.
  65. Id.
  66. Haaland v. Brackeen, 599 U.S. 255 (2023).
  67. Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021), aff’d in part, vacated in part, rev’d in part, 599 U.S. 255 (2023).
  68. Id. at 267–68, 340.
  69. Id. at 268–69.
  70. Haaland, 599 U.S. at 272–80.
  71. Id. at 280–91.
  72. Id. at 291–92.
  73. Three non-Indian families challenged ICWA in this case. The Brackeens had been fostering an Indian child for over a year and sought to adopt him with the agreement of his biological mother, father, and grandmother. Id. at 268. The Tribes of his parents did not agree and located an alternative placement with tribal members. Id. at 268–69. The Brackeens filed suit, and the alternative placement withdrew. Id. at 269. The Brackeens were permitted to adopt the Indian child. Id. They are now seeking to adopt his biological sister, over tribal objection. Id. The Libretti family was selected by the biological mother to adopt her newborn baby. Id. The birth mother is not Indian, but the birth father is. Id. at 270. He also supported the adoption. Id. at 269. The Tribe intervened in the adoption, suggesting a number of potential placements on the reservation for the infant. Id. at 270. Once the Librettis joined the Brackeens in this lawsuit, the Tribe withdrew its challenge, and the Librettis finalized the adoption. Id. The Cliffords fostered an Indian child, and eventually sought to adopt her. Id. The Tribe intervened, and the child was placed with her Indian maternal grandmother. Id. The Clifford family continued to pursue the adoption, but it was denied. Id.
  74. Id. at 294–96.
  75. In a Major Win for Native Families, Supreme Court Upholds the Constitutionality of ICWA, Native Am. Rts. Fund (June 15, 2023), https://‌‌/protect-icwa-statement [https://‌‌/4PBG-YNXX]; Chad Hunter, Win for Tribes as High Court Upholds ICWA, Cherokee Phx. (June 15, 2023), https://‌‌/news‌/win-for-tribes-as-high-court-upholds-icwa‌/article‌_86ac1e80-0bb0-11ee-b315-7ffd756ebbf1.html [https://‌‌/QU8R-X2YT]; Megan Lim et al., In a Major Win for Tribal Sovereignty, Supreme Court Upholds Indian Child Welfare Act, NPR (June 15, 2023), https://‌‌/2023‌/06‌/15‌/1182519996‌/in-a-major-win-for-tribal-sovereignty-supreme-court-upholds-indian-child-welfare [https://‌‌/YM5H-CYH6].
  76. See Haaland, 599 U.S. at 291–92.
  77. Id. at 292 (internal citation omitted).
  78. Id. at 293.
  79. Id. at 333 (Kavanaugh, J., concurring).
  80. Id. at 333–34 (Kavanaugh, J., concurring).
  81. Id. at 334 (Kavanaugh, J., concurring).
  82. Perry, supra note 46, at 115 (noting that some feel that “the discourse on transracial adoption reflected both arrogance and a sense of privilege on the part of some white women”).
  83. Howard Alstein & Rita J. Simon, Introduction, in Intercountry Adoption: A Multinational Perspective 1, 2 (1991) (“[D]eveloping countries have come to define as imperialistic, self-serving, and a return to a form of colonialism in which whites exploit and steal natural resources. . . . [C]hildren were the natural resource being exploited and out of which developing nations were being cheated.”); Malinda L. Seymore, Adoption Ouroboros: Repeating the Cycle of Adoption as Rescue, 50 Pepp. L. Rev. 229, 262–63 (2023) (discussing international adoption as neo-colonial predation); Shani King, Challenging Monohumanism: An Argument for Changing the Way We Think about Intercountry Adoption, 30 Mich. J. Int’l L. 413 (2009) (analyzing international adoption through the lens of neo-colonial theory); see Richey Wyver, Exploring Swedish International Adoption Desire: Transracial Bodies and Nation-Building in the ‘Goodest’ Country 19–22, 40–42 (2023) (discussing colonialism and international adoption is not limited to the role of the United States; for a discussion of Sweden’s colonialist past and international adoption).
  84. Laura Briggs & Diana Marre, Introduction: The Circulation of Children, in International Adoption: Global Inequalities and the Circulation of Children 1, 1–2 (Diana Marre & Laura Briggs, eds., 2009) (noting that international adoption moves children from poor to rich countries, as the history of colonialism might suggest); King, supra note 83, at 425 (“Intercountry adoption typically involves an exchange between a developing country and an industrialized country.”); see generally Seymore, Adoption Ouroboros, supra note 83.
  85. Ellen Herman, Kinship By Design: A History of Adoption in the Modern United States (2008). In the hierarchy of adoption placement, parents who are seen as the normatively ideal couple—heterosexual, within the age range of typical new parents, and meeting conventional income patterns—will be matched with the normatively ideal child, meaning a healthy White newborn. Parents who do not fit the ideal may be matched with children seen as less than ideal in the marketplace of adoption—children with special needs, who are older, or who are Black. One author explained why gay men and lesbians adopt special needs kids in large numbers:Some adopt these children because they are more willing to accept special needs children than some prospective parents who seek to adopt healthy white infants. In other jurisdictions, some gays and lesbians adopt special needs children because they are the only children available for gays and lesbians to adopt. Lisa Bennett, Deputy Director of the Human Rights Campaign, reported that many same-sex parents adopted their children from the child welfare program. “They are so interested in becoming parents that they are willing to take children others are not.”Cynthia R. Mabry, Opening Another Exit from Child Welfare for Special Needs Children – Why Some Gay Men and Lesbians Should Have the Privilege to Adopt Children in Florida, 18 St. Thomas L. Rev. 269, 286 (2005); Adam Pertman, Adoption Nation: How the Adoption Revolution is Transforming America 218 (2000) (describing the hierarchy as “pragmatism,” and as a “mutual manipulation” between nontraditional parent applicants and adoption professionals making the match) (“The nontraditional parental aspirants know the waiting lines for some children are extremely short, while the practitioners know these unmarried, gay, and disabled applicants are seldom in any position to negotiate.”).
  86. Elizabeth Raleigh, Selling Transracial Adoption: Families, Markets, and the Color Line 134 (2018).
  87. Perry, supra note 46, at 115.
  88. Yes, that is as offensive as it sounds—it is racist, smacks of baby-selling, and reinforces White supremacy. Michele Goodwin points out that the usual justification for a two-tiered fee structure based on race is that it is easier to place White children and more difficult to place Black children; Goodwin points out if the fees are based on the amount of work it takes to place a child, rather than any intrinsic value of a child, Black children should cost more, not less. Michele Bratcher Goodwin, Baby Markets, in Baby Markets: Money and the New Politics of Creating Families 2, 6 (Michele Bratcher Goodwin, ed., 2010).
  89. Id. Agency practices of discounted fees for Black children persist today and reinforce the idea that Black children are less desirable to adopt than White, Asian, and Hispanic children. Kathryn A. Sweeney, Racial and Gender Preferences Among Potential Adoptive Parents, in The Routledge Handbook of Adoption 153 (Gretchen Miller Wrobel, Emily Helder & Elisha Marr, eds., 2020).
  90. Landes & Posner, supra note 23, at 324, 327.
  91. I use a broad definition of patriarchy. See Sylvia Walby, Theorizing Patriarchy, 23 Sociology 213, 214 (1989) (patriarchy is “a system of social structures, and practices in which men dominate, oppress and exploit women”).
  92. Katrysha Bracco, Patriarchy and the Law of Adoption: Beneath the Best Interests of the Child, 35 Alberta L. Rev. 1035, 1038 (1997) (“Adoption was used to perpetuate lineage by guaranteeing male heirs in the family and to secure the continuation of ancestor worship ceremonies.”). Adoption was frequent in the Roman Empire (625 BC to 476 AD), motivated by a need for male heirs. Even succession to the throne was affected by adoption, with Julius adopting Augustus, Augustus adopting Tiberius, and Claudius adopting Nero. Kristin Elizabeth Gager, Blood Ties and Fictive Ties: Adoption and Family Life in Early Modern France 37–38, n.5 (1996). Adoption waned with the growth of Christianity, with the early Church unhappy with the way adoption interfered with the Church’s inheritance of property and feudal systems that meticulously regulated landholding and property transfer. Id. at 41–50.
  93. Rickie Solinger, Wake Up Little Suzi: Single Pregnancy and Race Before Roe v. Wade 152–61 (2d ed. 2000); Karen Wilson-Buterbaugh, The Baby Scoop Era: Unwed Mothers, Infant Adoption, and Forced Surrender (2017).
  94. Malinda L. Seymore, Sixteen and Pregnant: Minors’ Consent in Abortion and Adoption, 25 Yale J.L. & Feminism 99, 113 (2013); see Wilson-Buterbaugh, supra note 93 (As one agency head put it, “The concept that the unmarried mother and her child constitute a family is to me unsupportable. There is no family in any real sense of the word.”); David M. Smolin, Child Laundering as Exploitation: Applying Anti-Trafficking Norms to Intercountry Adoption Under the Coming Hague Regime, 32 Vt. L. Rev. 1, 7 (2007).
  95. Solinger, supra note 93, at 148.
  96. Crisis pregnancy centers often steer single parents to adoption. They are usually religiously affiliated. Nat’l Inst. of Family & Life Advocates v. Becerra, 585 U.S. 755 (2018) (quoting from the report of the California Legislature in passing regulations concerning crisis pregnancy centers, identifying them as “pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center”). Additionally, these centers will promote parenting only within marriage and adoption placement if unmarried. Anna North, The Antiabortion “Social Safety Net”, Vox (June 28, 2022), https://‌‌/23184939‌/abortion-ban-roe-wade-crisis-pregnancy-centers [https://‌‌/2RBS-B95V] (quoting Professor Katrina Kimport saying that crisis pregnancy centers have “an expectation of monogamy, of marriage, of a two-parent home, and of a male breadwinner and female caretaker and primary caregiver”) (quotations omitted); see Caroline Kitchener & Beth Reinhard, A Texas Blueprint for Converting the ‘Abortion-Minded’: Lattes and a View, Wash. Post (July 31, 2022), https://‌‌/politics‌/2022‌/07‌/31‌/pregnancy-center-of-the-coastal-bend-expansion [https://‌‌/MCX6-FLV7] (the Pregnancy Center of the Coastal Bend brags that their new crisis pregnancy center will have a “man cave” for the partners of those seeking services, and the men will be talking to a certified marriage counselor); see also Kathryn Joyce, Shotgun Adoption, Nation (Aug. 25, 2009), https://‌‌/article‌/archive‌/shotgun-adoption [https://‌‌/RBJ5-JGBQ] (noting that religiously-based centers “oppose unmarried parenthood as against ‘God’s plan for the family’”).
  97. Sisson, “Choosing Life”, supra note 16, at 351.
  98. Elissa Madden et al., Understanding Options Counseling Experiences in Adoption: A Qualitative Analysis of First‌/Birth Parents and Professionals 12–13 (2017), https://‌‌/xEpJv [https://‌‌/9UB3-J7RC].
  99. Id. at 13.
  100. Id.
  101. Id. In this study, over one-third of the women self-identified as Christian. Id. at 12. Fifty percent of the women indicated that they were inactive in their religious or spiritual practices, but almost 36 percent said they relied “very often” on their religious‌/spiritual beliefs in making decisions. Id.
  102. Maureen Honey, Creating Rosie the Riveter: Class, Gender, and Propaganda During World War II 11 (1984) (though 50 percent of women wanted to keep their wartime jobs, cultural expectations mandated they return to the domestic sphere).
  103. Solinger, supra note 93, at 154.
  104. Barbara Melosh, Strangers and Kin: The American Way of Adoption 106 (2002).
  105. Lulu Le Vay, Surrogacy and the Reproduction of Normative Family on TV 149 (2019).
  106. Id. at 190.
  107. After all, I adopted my children as a single parent.
  108. Utah Code Ann. § 78B-6-117(4) (West 2022) (“To provide a child who is in the custody of the division with the most beneficial family structure . . . the division or child-placing agency shall place the child with a married couple, unless: (a) there are no qualified married couples . . . .”); Az. Rev. Stat. Ann. § 8-103(D) (2022) (“If all relevant factors are equal and the choice is between a married man and woman certified to adopt and a single adult certified to adopt, placement preference shall be with a married man and woman.”). Note, also, that the Arizona statute, by its very terms, does not recognize gay marriage.
  109. Seymore, Inconceivable Families, supra note 13, at 1767 (citing LGBT Rights, Gallup, https://‌‌/poll‌/1651‌/gay-lesbian-rights.aspx [https://‌‌/PJB7-WZF6]).
  110. Id. at 167 n.153.
  111. 141 S. Ct. 1868 (2021).
  112. Id. at 1881.
  113. Id. at 1875.
  114. Id. at 1882.
  115. Perry, supra note 46, at 139.
  116. Id.
  117. Id.
  118. Id. at 142.
  119. Deborah L. Rhode, #MeToo: Why Now? What Next?, 69 Duke L.J. 377, 378 (2019). The Chicago Tribune provides a helpful timeline of events for the #MeToo Movement: Christen A. Johnson & KT Hawbaker, #MeToo: A Timeline of Events, Chi. Trib. (June 5, 2019), https://‌‌/lifestyles‌/ct-me-too-timeline-20171208-htmlstory.html [https://‌‌/Y6T7-K6L6]; see also Sarah Almukhtar, Michael Gold & Larry Buchanan, After Weinstein: 71 Men Accused of Sexual Misconduct and Their Fall from Power, N.Y. Times, (Feb. 8, 2018), https://‌‌/interactive‌/2017‌/11‌/10‌/us‌/men-accused-sexual-misconduct-weinstein.html [https://‌‌/4DEP-NLHX].
  120. Nancy Leong, Them Too, 96 Wash. U. L. Rev. 941, 945 (2019) ( “[M]uch of the conversation about sex that has resulted from the #MeToo movement has focused on consent.”).
  121. Renata Grossi, What Can Contract Law Learn from #MeToo?, 49 J.L. & Soc’y 263 (2022).
  122. Id. at 268 (citing Randy E. Barnett, A Consent Theory of Contract, 86 Colum. L. Rev. 269 (1986)).
  123. Id. at 269.
  124. Courts have sometimes analogized adoption relinquishments to contracts:The Private Adoption Act of 1979 does not provide for any method whereby the act of surrender may be set aside because of vitiated consent. However, the executed act of surrender, although highly regulated and specialized, is in essence a contract, namely an agreement by two or more parties whereby obligations are created, modified, or extinguished. Accordingly, as in other agreements, the consent necessary to the surrender of a child for private adoption may be vitiated by error, fraud or duress.In re J.M.P., 528 So. 2d 1002, 1007–08 (La. 1988) (citations omitted).
  125. Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121, 123 (1996) (arguing that consent has the magical property of “mak[ing] an action right when it would otherwise be wrong,” at least so long as the actor is free of certain constraints on that consent).
  126. Grossi, supra note 121, at 266.
  127. Deborah Tuerkheimer, Sexual Violation Without Law, 76 N.Y.U. Ann. Surv. Am. L. 609, 611 (2021).
  128. In re D., 408 S.W.2d 361, 368 (Mo. Ct. App. 1966) (describing each adoption case as distinctively different as fingerprints, requiring fact-based determinations).
  129. 3 Samuel Williston, Law of Contracts § 1608 (1st ed. 1920) (noting that duress of circumstances will not ordinarily be a defense but would be if the other party knew of and took advantage of the circumstances to apply that degree of duress and coercion that would vitiate consent). The #MeToo movement suggests we look deeper at apparent consent, keeping in mind that not only conduct on the part of the coercing party but also surrounding conditions that enhance the conduct’s coercive effects can render consent involuntary. Tuerkheimer, supra note 127, at 625.
  130. B.A.L. v. Edna Gladney Home, 677 S.W.2d 826 (Tex. App. 1984) (no overpersuasion by maternity home though birth mother was young, alone, pregnant, and emotionally distraught). But see Huebert v. Marshall, 270 N.E.2d 464 (Ill. App. Ct. 1971) (finding consent involuntary where advice about adoption came from a friend who was emotionally involved with the biological father).
  131. Pertman, supra note 85, at 250 (adoptive parent told by agency that the more money spent on the birth mother, “the more obligated she’d feel to give up her child, which she ultimately did”).
  132. See, e.g., In re S.O., 795 P.2d 254 (Colo. 1990) (unenforceable promise of visitation rights post-adoption was not sufficient to invalidate consent). But see Vela v. Marywood, 17 S.W.3d 750 (Tex. App. 2000) (consent invalid where agency’s promise of open adoption was unenforceable and thus illusory).
  133. Michael Z. Green, A New #MeToo Result: Rejecting Notions of Romantic Consent with Executives, 23 Empl. Rts. & Employ. Pol’y J. 115, 126 (2019).
  134. Leong, supra note 120, at 945. While Leong’s focus is the harm to third parties that arise in supposedly consensual sex where there are institutional power disparities, her identification and discussion of the power disparities is also important.
  135. Tuerkheimer, supra note 127, at 628.
  136. Dan Cassino & Yasemin Besen-Cassino, Race, Threat and Workplace Sexual Harassment: The Dynamics of Harassment in the United States, 1997–2016, 26 Gender, Work & Org. 1221, 1236 (2019) (“[H]arassers are conscious of power relationships, and choose to target more vulnerable women in their workplaces.”).
  137. Unless the adoption involves an older child, the person most affected by the adoption—the adoptee—has no voice in the process. The adoptee has no ability to withhold consent, and even upon reaching adulthood is still bound by the contract entered into by the birth parents and the adoptive parents. In most states in the United States, an adoptee cannot access their original birth certificate, cannot receive information about birth parents, and cannot nullify the adoption. See, e.g., E. Wayne Carp, Adoption Politics: Bastard Nation & Ballot Initiative 58, at 6 (2004); Elizabeth J. Samuels, The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records, 53 Rutgers L. Rev. 367, 373–74 (2001).
  138. Hollinger, supra note 37, at § 2.01.
  139. Gretchen Sisson, Who Are the Women Who Relinquish Infants for Adoption? Domestic Adoption and Contemporary Birth Motherhood in the United States, 54 Persps. on Sexual & Reprod. Health 46, 49 (2022) (noting that 64 percent of birth mothers in this study reported annual income of less than $5,000).
  140. Id.
  141. Malinda L. Seymore, Social Costs of Dobbs’ Pro-Adoption Agenda, 57 U.C. Davis L. Rev. 503, 549–53 (2023) (discussing how adoption agencies target poor, young pregnant women by putting up ads where poor people might be (like laundromats) or in Catholic areas where young pregnant women might be less likely to seek an abortion, or by using geo-fencing—a location-based advertising technology—to target ads to women who enter abortion or methadone clinics).
  142. See Roberts, Torn Apart, supra note 15, at 69.
  143. Id.
  144. Wilkinson-Hagen, supra note 36.
  145. Vicky Albert & Jaewon Lim, Spatial Analyses of the Impact of Temporary Assistance for Needy Families on Child Neglect Caseloads During the Great Recession, 45 J. Soc. Serv. Rsch. 59, 59–60 (2019) (noting the federal statutory definition of child neglect as “failure of a caregiver to provide for a child’s physical, medical, educational, or emotional needs”).
  146. Roberts, Torn Apart, supra note 15, at 68.
  147. Id. at 67. Certainly, there are cases where parents deliberately withhold food and other needs from their children. Interestingly, there are a number of known cases where adopted children are abused in this way by their adoptive parents. See, e.g., Laurie C. Miller et al., Child Abuse Fatalities Among Internationally Adopted Children, 12 Child Maltreatment 378, 378 (2007) (between 1996 and 2007, eighteen internationally adopted children were killed by adoptive parent abuse or neglect); Deb Gruver, In Need of Care: The Girl in the Basement, Wichita Eagle (May 31, 2014), https://‌‌/news‌/special-reports‌/in-need-of-care‌/article1145001.html [https://‌‌/NK6T-U2X6] (adopted fourteen-year-old, weighing only sixty-six pounds, kept locked in basement and fed only bread for dinner); Doug Stanglin, Prosecution Says Adopted Girl Died in ‘House of Horror’, USA Today (Sept. 6, 2013), https://‌‌/story‌/news‌/nation‌/2013‌/09‌/06‌/ethiopian-adopted-hana-williams-mount-vernon-washington-state-house-of-horrors-trial‌/2776027 [https://‌‌/PHJ4-BCA4] (thirteen-year-old Ethiopian adoptee Hana Williams died of malnutrition and abuse at hands of adoptive parents); Emma Sanchez, Chinese-Born Woman Sues Adoptive Parents for Allegedly Locking Her in Basement, Forced Slavery and Racist Treatment, NBC News (Feb. 3, 2023), https://‌‌/news‌/asian-america‌/chinese-born-woman-sues-adoptive-parents-alleging-forced-slavery [https://‌‌/U2S9-7EEF] (nineteen-year-old Olivia Atkocaitis is suing her adoptive parents, who she alleges kept her locked in the basement and did not allow her to attend school, among other abuse).
  148. Roberts, Torn Apart, supra note 15, at 66.
  149. Id. There is no general legal definition of neglect, as each of the fifty states utilize their own definition. Rebecca Rebbe, What Is Neglect? State Legal Definitions in the United States, 23 Child Maltreatment 303, 305 (2018). The aspects of neglect most frequently found in state definitions are inadequate medical care, inadequate food or nutrition, abandonment, inadequate shelter, and inadequate clothing. Id. at 306–07, 306 tbl.1.
  150. Roberts, Torn Apart, supra note 15, at 66.
  151. Id. at 64–68.
  152. Gretchen Sisson, Relinquished: The Politics of Adoption and the Privilege of American Motherhood 33 (2024) (reporting data showing that 64 percent of relinquishing mothers earn less than a $5000 annual income and 88 percent had coverage from Medicaid, over twice the rate of all women giving birth. Not all relinquishing mothers are “living in abject poverty,” but “at the time of the adoption many . . . mothers have few financial resources within their own control”); see also Sisson, Who Are the Women Who Relinquish Infants for Adoption?, supra note 139, at 49 (majority of birth mothers who relinquish children earn less than $5,000‌/year).
  153. Sisson, Who Are the Women Who Relinquish Infants for Adoption?, supra note 139, at 49.
  154. Id.
  155. Seymore, Adopting Civil Damages, supra note 22, at 909–11 (discussing views of adoptive parents as consumers and adoption agencies as businesses responsive to the desires of their consumers).
  156. Madden et al., supra note 98, at 31.
  157. Id.
  158. Id. at 40.
  159. Anna E. Austin et al., Association of State Expansion of Supplemental Nutrition Assistance Program Eligibility with Rates of Child Protective Services–Investigated Reports, 177 JAMA Pediatrics 294, 294 (2023).
  160. Roberts, Torn Apart, supra note 15, at 146 (referencing a 2017 study that shows when restrictions on welfare aid increase, foster care placements also increased); Christina Paxson & Jane Waldfogel, Welfare Reforms, Family Resources, and Child Maltreatment, 22 J. Pol’y Analysis & Mgmt 85, 108 (2003) (finding likelihood of increased child maltreatment, including substantiated cases of neglect, and increased children in foster care from the 1996 welfare reform that decreased benefits for many families); Vicky N. Albert & William C. King, Impact of Short Lifetime Limits on Child Neglect, 44 J. Soc. & Soc. Welfare 53, 64 (2017) (reduction of the number of families on the welfare rolls through time limits or reduction in benefit levels in Arizona during the 2009 recession led to increased caseloads for substantiated child neglect).
  161. Hannah Thompson, Cash for Protection, 38 Child Abuse & Neglect 360, 370 (2014) (reporting on cash transfer programs abroad). Cash transfer programs have existed for a considerable time in Latin America, Simone Cecchini & Fábio Veras Soares, Conditional Cash Transfers and Health in Latin America, 385 Lancet E32 (2015) (noting the start of Latin American cash transfer programs in the 1990s), and Africa, Nathanael Ojong & Logan Cochrane, Public Policy and Social Protection in Africa: The Rise of Cash Transfers, in Routledge Handbook of Public Policy in Africa 488, 489 (Gedion Onyango, ed., 2022) (noting that since 2000, forty-six African countries have implemented cash transfer programs). They have been less common in the United States. But that is changing with a surge of cash transfer payments during the COVID-19 pandemic and with nonprofits creating programs. Sheida Isabel Elmi & Rachel Black, Cash Transfers in the U.S. Are Exploding: Here’s How to Make Them Effective, During COVID-19 and Beyond, Next Billion (June 18, 2020), https://‌‌/effective-cash-transfers-us-covid19 [https://‌‌/8LF6-XAGE]. Though the programs are shown to relieve poverty, it is too soon for studies showing effects on child abuse and neglect. But given the proven link between poverty and neglect, one might anticipate a reduction in cases of child neglect for cash transfer payments in the United States as in other countries.
  162. Roberts, Torn Apart, supra note 15, at 69.
  163. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 258–59 (2022) (Justice Alito writing that the availability of anonymous abandonment of babies to safe havens and the desire of adoptive parents for newborns to adopt has changed the calculus for the need for abortion access); Transcript of Oral Argument at 56, Dobbs v. Jackson’s Women’s Health Org., 597 U.S. 215 (2022) (No. 19-1392) (Justice Barrett suggesting to counsel during oral argument that the burden of parenthood on women is reduced by the availability of safe havens and adoption).
  164. Resolving this highly contested issue is beyond the scope of this article. As the Court noted in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 850 (1992), “Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage.” For the attempts of others to resolve the question, see generally John T. Noonan, Jr., The Morality of Abortion (1970); Lawrence H. Tribe, The Clash of Absolutes (1990); Ruth Colker, Feminism, Theology, and Abortion: Toward Love, Compassion, and Wisdom, 77 Calif. L. Rev. 1011 (1989); Mark T. Brown, The Morality of Abortion and the Deprivation of Futures, 26 J. Med. Ethics 103 (2000); Don Marquis, Why Abortion Is Immoral, 86 J. Phil. 183 (1989); Mary Anne Warren, Do Potential People Have Moral Rights, 7 Can. J. Phil. 275 (1977); Judith Jarvis Thomson, A Defense of Abortion, 1 Phil. & Pub. Aff. 47 (1971). Note that adoption also presents moral issues. See generally Timothy Patrick Jackson, The Morality Of Adoption: Social-psychological, Theological, And Legal Perspectives 3–113 (2005).
  165. See Roe v. Wade, 410 U.S. 113, 158 (1973) (“[T]he word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”).
  166. For more about the fetal personhood debate, see generally Greer Donley & Jill Wieber Lens, Abortion, Pregnancy Loss, & Subjective Fetal Personhood, 75 Vand. L. Rev. 1649 (2022); Amanda Gvozden, Fetal Protection Laws and the “Personhood” Problem: Toward a Relational Theory of Fetal Life and Reproductive Responsibility, 112 J. Crim. L. & Criminology 407 (2022); C’Zar Bernstein, Fetal Personhood and the Original Meanings of “Person”, 26 Tex. Rev. L. & Pol. 485 (2022).
  167. Women generally decide first whether to continue the pregnancy or terminate, and if they decide to continue the pregnancy, they then decide about parenting versus adoption. Women seeking abortions at abortion clinics had already considered and rejected adoption. Though aware of the option of adoption, it “was simply not a choice they were interested in pursuing when abortion was available to them.” Gretchen Sisson, Lauren Ralph, Heather Gould & Diana Greene Foster, Adoption Decision Making Among Women Seeking Abortion, 27 Women’s Health Issues 136, 141–42 (2017).
  168. Dobbs, 597 U.S. at 242–50.
  169. Tom Davis, Sacred Work: Planned Parenthood and Its Clergy Alliances 5–6 (2005) (noting that, since its beginnings, Planned Parenthood had clergy allies who saw reproductive justice as a moral imperative, as “sacred work”).
  170. Johanna Schoen, Abortion Care as Moral Work, 17 J. Mod. Eur. Hist. 262, 263 (2019).
  171. Clergy Statement on Abortion Law Reform and Consultation Service on Abortion (1967), reprinted in Linda Greenhouse & Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court’s Ruling 30 (2012).
  172. Id.
  173. Id.
  174. Howard Moody, Abortion: Woman’s Right and Legal Problem, 28 Theology Today 27, 28 (1971).
  175. Id.
  176. Greenhouse & Siegel, supra note 171, at 31.
  177. Id. at 69–75. Of course, religion is not the only source of morality. For a more secular discussion of moral philosophy of abortion and adoption, see infra text accompanying notes 217–257.
  178. Schoen, supra note 170, at 266.
  179. Sabrina Danielsen, Mobilizing on Abortion: Social Networks, Civil Disobedience, and the Clergy Consultation Service on Abortion, 1967–1973, 63 J. Church & State 461, 464–65 (2021).
  180. Mary Ziegler, After Roe: The Lost History of the Abortion Debate 92–128 (2015) (discussing the impact of Roe v. Wade on elevating rights talk about abortion over debates about public policy and morality).
  181. 410 U.S. 113, 163 (1973).
  182. Priscilla K. Coleman & Debbie Garratt, From Birth Mothers to First Mothers: Toward a Compassionate Understanding of the Life-Long Act of Adoption Placement, 31 Issues L. & Med. 139, 141 (2016).
  183. Isabel Heinemann, Abortion and Adoption as Two Poles of Reproductive Decision-Making in the United States During the 1980s, 17 J. Mod. Eur. Hist. 280, 284 (2019).
  184. Ronald Reagan, Proclamation 5746—National Adoption Week, 1987, Am. Presidency Project (Nov. 19, 1987), https://‌‌/documents‌/proclamation-5746-national-adoption-week-1987 [https://‌‌/FY8P-FNCL]; see BraveLove, https://‌ [https://‌‌/ZQ8S-NAKZ]. The concept of adoption placement as a “brave” decision is not a relic of the past. The organization Brave Love is designed as a pro-adoption organization to honor the brave decisions of birth mothers to place their children in adoption programs. Id.
  185. See Ange-Marie Hancock, the Politics of Disgust: The Public Identity of the Welfare Queen (2004).
  186. Heinemann, supra note 183, at 288.
  187. Id. at 284.
  188. Id. at 291.
  189. Id. at 291–92.
  190. Id. at 293.
  191. Id.
  192. Id. at 294.
  193. Id. at 288.
  194. Id. at 293.
  195. Id.
  196. Id. at 294.
  197. Id.
  198. Id. at 296.
  199. BraveLove, supra note 184.
  200. Directory of Recommended Adoption Agencies, BraveLove, https://‌‌/adoption‌_agencies [https://‌‌/U69K-Z7FN].
  201. FAQ: Is BraveLove a Pro-life Organization?, BraveLove, https://‌‌/faq [https://‌‌/PM98-T7Q6].
  202. Arlene Bridges Samuels, Resetting the Arc of Our Nation with the Adoption Option, Christian Post (June 26, 2022), https://‌‌/voices‌/resetting-the-arc-of-our-nation-with-the-adoption-option.html [https://‌‌/HE44-DHYV].
  203. Hannah, Why I’m a Pro-Choice Adoptee, An Injustice! (Dec. 1, 2021), https://‌‌/why-im-a-pro-choice-adoptee [https://‌‌/6W7M-A5Z4]; Tony Corsentino, Why Is That Controversial? Adoptees Have a Stake in the Fight to Protect Abortion Rights, This Is Not a Legal Rec. Blog (May 5, 2022), https://‌‌/p‌/why-is-that-controversial [https://‌‌/P599-5MN] (“[Adoptees] interventions are needed at this moment because people unacquainted with the stories and experiences of adoptees view adoption as an escape hatch. The very idea of adoption as an ‘alternative’ to abortion betrays the conceptual confusion.”).
  204. Michele Merritt, The False Choice: Adoptee Voices in the Fight for Reproductive Freedom, Bill of Health Blog, Petrie-Flom Ctr. at Harv. L. Sch. (May 9, 2022), https://‌‌/2022‌/05‌/09‌/the-false-choice-adoptee-voices-in-the-fight-for-reproductive-freedom [https://‌‌/CE4Q-ACV5].
  205. Id.
  206. Kimberly McKee, Flipping the Script: Adoption and Reproductive Justice, Bill of Health Blog, Petrie-Flom Ctr. at Harv. L. Sch. (May 13, 2022), https://‌‌/2022‌/05‌/13‌/flip-the-script-adoption-reproductive-justice [https://‌‌/YC4B-AX6T]; see also Kimberly McKee, The Consumption of Adoption and Adoptees in American Middlebrow Culture, 42 Biography 669, 673 (2019) (noting how adoptee voices are ignored, with those offering critiques labeled as “adoptee killjoys” who “dismantle staid adoption narratives of child rescue and gratefulness”).
  207. Bibiana D. Koh & Frederic G. Reamer, Why Moral Theories Matter: A Review of Ethics and Adoption Literature, 24 Adoption Q. 5, 7 (2021).
  208. Id. at 7–8.
  209. Perhaps best known is Judith Jarvis Thomson’s meditation on a woman’s obligations upon waking up next to a world-famous violinist who is connected to her so that her kidneys can filter his blood; she was kidnapped, hooked up to the violinist, and doctors refused to unhook her because the violinist would die. Judith Jarvis Thomson, A Defense of Abortion, in Biomedical Ethics and the Law 39, 40 (James M. Humber & Robert F. Almeder, eds., 1976). Thomson ultimately concludes that the violinist has no right, and the woman has no obligation, to remain connected. Id.
  210. I’m reminded of Virginia Woolf’s astonishment in looking in the library card catalog for books about women and discovering not just books as she expected by doctors and biologists, but also by “agreeable essayists, light-fingered novelists, young men who have taken the M.A. degree; men who have taken no degree; men who have no apparent qualification save that they are not women.” Virginia Woolf, A Room of One’s Own 41 (The Hogarth Press 1959) (1929).
  211. Steven G. Post, The Moral Meaning of Relinquishing an Infant: Reflections on Adoption, 67 Thought 207, 208 (1992).
  212. Id. at 209. “Unbearably” is a squishy word, providing much room for Post to judge the grief and pain of someone who has borne and relinquished a child—an experience he has not shared.
  213. Id. at 212.
  214. Id.
  215. King, supra note 83, at 413, 423 (identifying the shift from the child welfare model to the meeting parental needs model occurring in the 1970s).
  216. Post, supra note 211, at 212.
  217. Cf. David H. Smith, Wombs for Rent, Selves for Sale, 4 J. Contemp. Health L. & Pol’y 23, 27–28 (1988) (in the context of surrogacy, discussing consequences of becoming pregnant in order to give up the child).
  218. Daniel Friedrich, A Duty to Adopt?, 30 J. Applied Phil. 25, 25 (2013). Later in the article he concedes that that number of needy children is exaggerated, especially when he acknowledges that prospective adoptive parents prefer infants and toddlers rather than older children or special needs children. I have already debunked these exaggerated figures of the number of orphans worldwide, supra, at text accompanying notes 33–34.
  219. Id.
  220. Id. at 26.
  221. Id.
  222. Id. at 27.
  223. Devon Goss, The Complexities of Mixed Families: Transracial Adoption as a Humanitarian Project, 6 Genealogy 33 (2022) (noting the “tension surrounding the intersection of altruism and domestic life”).
  224. Id.
  225. Raymond M. Herbenick, Remarks on Abortion, Abandonment, and Adoption Opportunities, 5 Phil. & Pub. Aff. 98, 99 (1975).
  226. Id.
  227. Id. at 102.
  228. Margaret Atwood, The Handmaid’s Tale (1985) (the enduring dystopian story of America after a theocratic revolution results in the disempowerment of women whose only value is as breeders).
  229. Andrew Koppelman, Originalism, Abortion, and the Thirteenth Amendment, 112 Colum. L. Rev. 1917 (2012); Andrew Koppelman, Forced Labor, Revisited: The Thirteenth Amendment and Abortion, in The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment 226 (Alexander Tsesis ed., 2010); Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990).
  230. Herbenick, supra note 225, at 102.
  231. Id. at 98.
  232. Lindsey Porter, Adoption Is Not Abortion-Lite, 29 J. Applied Phil. 63, 63 (2012); contra Víctor Durà-Vilà, Parental Obligation, Adoption and Abortion: Critique of Porter and Nozickian Alternative, 47 J. Value Inquiry 29 (2013) (critiquing Porter’s position).
  233. Porter, supra note 232, at 71–72.
  234. Id. at 72.
  235. Deborah Lewis Fravel, Ruth G. McRoy & Harold D. Grotevant, Birth Mother Perceptions of the Psychologically Present Adopted Child: Adoption Openness and Boundary Ambiguity, 49 Fam. Relations 425 (2000); Anne B. Brodzinsky, Surrendering an Infant for Adoption: The Birth Mother Experience, in The Psychology of Adoption 295 (David M. Brodzinsky & Marshall D. Schechter eds., 1990).
  236. Coleman & Garratt, supra note 182, at 155.
  237. Porter, supra note 232, at 63.
  238. Michele Merritt, Rediscovering Latent Trauma: An Adopted Adult’s Perspective, Child Abuse & Neglect, 105445 (2021).
  239. Id.
  240. Id. at 6.
  241. Id.
  242. Kimberly Leighton, Being Adopted and Being a Philosopher: Exploring Identity and the “Desire to Know” Differently, in Adoption Matters: Philosophical and Feminist Essays 146 (Sally Haslanger & Charlotte Witt eds., 2005).
  243. Id. at 147.
  244. Leighton has written extensively to reject the idea that donor-conceived individuals have any right to know their biological progenitors. See, e.g., Kimberly Leighton, To Criticize the Right to Know We Must Question the Value of Genetic Relatedness, 13 Am. J. Bioethics 54 (2013); Kimberley Leighton, Addressing the Harms of Not Knowing One’s Heredity: Lessons from Genealogical Bewilderment, 3 Adoption & Culture 63 (2012); Kimberly Leighton, Analogies to Adoption in Arguments Against Anonymous Gamete Donation: Geneticizing the Desire to Know, in Family-Making: Contemporary Ethical Challenges 239 (Françoise Baylis & Carolyn McLeod eds., 2014).
  245. Leighton, supra note 242 at 146, 147.
  246. Id. at 149.
  247. Id. at 146 (italics removed).
  248. Id.
  249. All these issues are discussed supra, at text accompanying notes 89–91, 132 (commodification and payments in adoption); 43–48 (disparate separation of Black families); 83–84 (movement of children through international adoption from the global north from the global south); 129–147 (coercive tactics used by adoption agencies to procure consent from birth mothers).
  250. Reva Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. L. Rev. 991, 1014 (2007).
  251. Id. at 1023.
  252. Id. at 1012 (citing Collaborative Group on Hormonal Factors in Breast Cancer, Breast Cancer and Abortion: Collaborative Reanalysis of Data from 53 Epidemiological Studies, Including 83,000 Women with Breast Cancer from 16 Countries, 363 Lancet 1007, 1007 (2004)) (“Pregnancies that end as a spontaneous or induced abortion do not increase a woman’s risk of developing breast cancer.”); Mads Melbye et al., Induced Abortion and the Risk of Breast Cancer, 336 New Eng. J. Med. 81, 84 (1997); Fact Sheet: Abortion, Miscarriage, and Breast Cancer Risk, Nat’l Cancer Inst. (May 30, 2003), http://‌‌/cancertopics‌/factsheet‌/Risk‌/abortion-miscarriage [https://‌‌/EC99-B7GY] (review of relevant literature concluding that “newer studies consistently showed no association between induced and spontaneous abortions and breast cancer risk”).
  253. Siegel, supra note 250, at 1011–12.
  254. Brenda Major et al., Abortion and Mental Health: Evaluating the Evidence, 64 Am. Psych. 863, 884 (2009).
  255. Id. at 870–72 (noting that “the majority of studies continue to be plagued by serious methodological problems”).
  256. Id. at 870.
  257. See generally Diana Greene Foster, The Turnaway Study: Ten Years, a Thousand Women, and the Consequences of Having – or Being Denied – an Abortion (2020) (including the data and results reported in a myriad of academic papers generated by the study in an accessible way).
  258. Id. at 2.
  259. Lauren J. Ralph et al., Self-Reported Physical Health of Women Who Did and Did Not Terminate Pregnancy After Seeking Abortion Services, 171 Annals Internal Med. 238, 245 (2019).
  260. See id.; see also Caitlin Gerdts et al., Side Effects, Physical Health Consequences, and Mortality Associated with Abortion and Birth After an Unwanted Pregnancy, 26 Women’s Health Issues 55, 57 (2015).
  261. Ralph et al., supra note 259, at 145.
  262. See Foster, supra note 257, at 109–29.
  263. M. Antonia Biggs et al., Women’s Mental Health and Well-Being 5 Years After Receiving or Being Denied an Abortion: A Prospective, Longitudinal Cohort Study, 74 JAMA Psychiatry 169, 171–72 (2017).
  264. M. Antonia Biggs et al., Five-Year Suicidal Ideation Trajectories Among Women Receiving or Being Denied an Abortion, 175 Am. J. Psychiatry 845 (2018).
  265. Sisson, “Choosing Life”, supra note 16, at 352.
  266. Id.
  267. Id. Closed adoptions are those where there is no continuing contact between the birth mother and the adoptive family or adopted child after the adoption. Secrecy in adoption is enforced in a closed adoption, and the birth mother will not know the identity of the adoptive parents, the location of her child, or whether her child is doing well—not even whether her child is living or dead.
  268. See Wiley & Baden, supra note 38, at 29–30 (cautioning that research on the long-term effects of adoption relinquishment tend to be based on self-selecting samples or samples from birth mothers seeking treatment). While this sampling bias may make it difficult to assess how many birth parents suffer long-term effects and how many do not, the studies do offer important information about negative effects that birth mothers may experience long-term. Id. at 30.
  269. Id. at 31; Sisson, “Choosing Life”, supra note 16, at 352.
  270. See Wiley & Baden, supra note 38, at 29.
  271. Id. at 29–30.
  272. Cinda L. Christian et al., Grief Resolution of Birthmothers in Confidential, Time-Limited Mediated, Ongoing Mediated, and Fully Disclosed Adoptions, 1 Adoption Q. 35, 39 (1997).
  273. Wiley & Baden, supra note 38, at 30. Secrecy about the adoption, and the lack of opportunity to express feelings about the adoption, correlate strongly with unresolved grief, guilt, and shame about the adoption placement. See Michael DeSimone, Birth Mother Loss: Contributing Factors to Unresolved Grief, 24 Clinical Soc. Work J. 65, 71 (1996) (reporting that the secrecy surrounding pregnancy and relinquishment may have interfered with responses to questions about the availability of social support, and that there was strong correlation between unresolved grief and the lack of opportunity to express feelings about the relinquishment decision); Sisson, “Choosing Life”, supra note 16, at 352 (closed adoption was the biggest predictor of a predominantly negative adoption experience for birth mothers).
  274. Deborah L. Fravel et al., Birthmother Perceptions of the Psychologically Present Adopted Child: Adoption Openness and Boundary Ambiguity, 49 Fam. Rels. 425 (2000).
  275. See Xiaojia Ge et al., Bridging the Divide: Openness in Adoption and Postadoption Psychosocial Adjustment Among Birth and Adoptive Parents, 22 J. Fam. Psych. 529 (2008); Sisson, “Choosing Life”, supra note 16, at 352.
  276. See Ruth G. McRoy et al., Open Adoptions: Longitudinal Outcomes for the Adoption Triad, in Handbook of Adoption: Implications for Researchers, Practitioners, and Families 175 (Rafael Javier et al. eds., 2007); Ge et al., supra note 275, at 537–38 (noting positive correlation between openness and birth mothers’ post-placement adjustment and concluding case to be, in part, increased knowledge of the adoptive family and child).
  277. Harold D. Grotevant & Ruth G. McRoy, Openness in Adoption: Exploring Family Connections 167–70 (1998) (discussing limited-time mediated adoptions).
  278. Seymore, Social Costs of Dobbs’ Pro-Adoption Agenda, supra note 141, at 558 (discussing the role of false promises of open adoptions in coercing birth mother consent).
  279. David M. Brodzinsky, Long-Term Outcomes in Adoption, 3 Future of Child. 153, 153 (2003); Evan B. Donaldson Adoption Inst., Beyond Culture Camp: Promoting Healthy Identity Formation in Adoption 14 (2009); Penny Callan Partridge, The Particular Challenges of Being Adopted, 61 Smith Coll. Stud. Soc. Work 197, 199 (1991).
  280. Partridge, supra note 279, at 199.
  281. Brodzinsky, supra note 279, at 153; Evan B. Donaldson Adoption Inst., supra note 279, at 14.
  282. Harold D. Grotevant et al., Adoptive Identity and Adjustment from Adolescence to Emerging Adulthood: A Person-Centered Approach, 53 Developmental Psych. 2195 (2017).
  283. Id.; David Brodzinsky, Leslie M. Singer & Anne Braff, Children’s Understanding of Adoption, 55 Child Dev. 869 (1984); David Brodzinsky, Marshall D. Schechter & Robin M. Henig, Being Adopted: The Lifelong Search for Self 9–10, 18 (1992); Daniel W. Smith & David Brodzinsky, Stress and Coping in Adopted Children: A Developmental Study, 23 J. Clinical Child Psych. 91 (1994); Femmie Juffer, Children’s Awareness of Adoption and Their Problem Behavior in Families with 7-Year-Old Internationally Adopted Children, 9 Adoption Q. 1 (2006).
  284. David M. Brodzinsky, A Stress and Coping Model of Adoption Adjustment, in The Psychology of Adoption 3 (David M. Brodzinsky & Marshall D. Schechter eds., 1990); see also Michael Wierzbicki, Psychological Adjustment of Adoptees: A Meta-Analysis, 22 J. Clinical Child Psych. 447 (1993) (adoptees significantly overrepresented in clinical populations). It is possible that the overrepresentation of adoptees in clinical populations is not because of increased incidences of psychological problems, but because of increased rates of referrals by adoptive parents and professionals who are aware of issues relating to adoption and, therefore, might be more inclined to refer. See Brodzinsky, Long-Term Outcomes in Adoption, supra note 279, at 154; Femmie Juffer & Marinus H. van IJzendoorn, Behavior Problems and Mental Health Referrals of International Adoptees: A Meta-analysis, 293 J. Am. Med. Ass’n 2501, 2507 (2005) (noting that adoptees, both domestic and international, exhibited more behavior problems than nonadoptee controls and were overrepresented in mental health referrals).
  285. Margaret A. Keyes et al., Risk of Suicide Attempt in Adopted and Nonadopted Offspring, 132 Pediatrics 639 (2013) (odds of a reported suicide attempt were approximately four times greater in adoptees compared with nonadoptees); Gail Slap, Elizabeth Goodman & Bin Huang, Adoption as a Risk Factor for Attempted Suicide During Adolescence, 108 Pediatrics 1, 1 (2001) (reporting an increased risk of suicide among American adoptees living with an adoptive parent when compared to those living with a biological parent); Annika von Borczyskowski et al., Suicidal Behaviour in National and International Adult Adoptees: A Swedish Cohort Study, 41 Soc. Psychiatry & Psychiatric Epidemiology 95 (2006). But see William Feigelman, Are Adoptees at Increased Risk for Attempting Suicide?, 35 Suicide & Life-Threatening Behav. 206 (2005) (reporting no greater risk of attempting suicide and depression for adoptees).
  286. Wendy Tieman, Jan van der Ende & Frank C. Verhulst, Social Functioning of Young Adult Intercountry Adoptees Compared to Nonadoptees, 41 Soc. Psychiatry & Psychiatric Epidemiology 68 (2006) (adult adoptees in the study were almost two times less likely to be married than nonadopted counterparts, were less likely to be living with a romantic partner, and were less likely to have had a relationship that lasted longer than one year); Michael F. McGinn, Developmental Challenges for Adoptees Across the Life Cycle, in Handbook of Adoption 61, 65 (Rafael A. Javier et al. eds., 2007). But see Johanna Despax, Evelyne Bouteyre & Jean-Baptiste Pavani, Adoptees’ Romantic Relationships: Comparison with Nonadoptees, Psychological Predictors and Long-Term Implications of the Adoption Pathway, 24 Adoption Q. 251 (2021) (finding no differences between adoptees and nonadoptees not accounted for by pre-adoption experiences).
  287. James G. Dwyer, First Parents: Reconceptualizing Newborn Adoption, 37 Cap. U. L. Rev. 293, 295–96 (2008) (noting that adoptive parents and adoptees are stigmatized); see also Amanda Baden, “Do You Know Your Real Parents?” and Other Adoption Microaggressions, 19 Adoption Q. 1, 13 (2016) (examining adoption stigma and microaggressions and identifying thirteen themes common to adoption stigma).
  288. Elliot Inst., Forced Abortion in America: A Special Report 2 (2012).
  289. Id. at 2. This study, with the director of the Elliot Institute as one of the coauthors, alleged the existence of post-abortion trauma syndrome: Vincent M. Rue et al., Induced Abortion and Traumatic Stress: A Preliminary Comparison of American and Russian Women, 10 Med. Sci. Monitor SR5 (2004). Its methodology and results have been criticized. See, e.g., Gail Erlick Robinson et al., Is There an “Abortion Trauma Syndrome”? Critiquing the Evidence, 17 Harv. Rev. Psychiatry 268 (2009); Arline Kaplan, Is There An “Abortion Trauma Syndrome”? Critiquing The Evidence, 26 Psychiatric Times (2009) (“Abortion trauma syndrome is a fabricated mental disorder conceived by anti-abortion activists to advance their cause and is not a scientifically based psychiatric disorder.”).
  290. Prevention of Coerced and Unsafe Abortions Model Act, Elliot Inst., http://‌‌/initiative.htm [https://‌‌/4VNK-T63F].
  291. Id.
  292. In this way, the stated concern about coercion is much like other abortion restrictions: “The story of abortion restrictions is one of restricting the autonomy of women and girls.” Seymore, Sixteen and Pregnant, supra note 94, at 102.
  293. Ann M. Moore, Lori Frohwirth & Elizabeth Miller, Male Reproductive Control of Women Who Have Experienced Intimate Partner Violence in the United States, 70 Soc. Sci. & Med. 1737, 1741 (2010).
  294. Id. at 1742; Evan Stark, Coercive Control: The Entrapment of Women in Personal Life 292 (2007).
  295. Moore et al., supra note 293, at 1741.
  296. Reva B. Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 Sup. Ct. Rev. 277, 282 (2021).
  297. Perry v. Atkinnson, 195 Cal. App. 3d 14, 14 (1987).
  298. Id. at 16.
  299. Id. at 21. For a similar rejection of a cause of action for false promises that induce a woman to forego pregnancy and get an abortion, see R.P. v. B.Y., 2012 N.J. Super. Unpub. LEXIS 2303 (2012). In L.G. v. F.G.H., 729 S.W.2d 634 (Mo. App. 1987), the court rejected a claim in probate that a testator (the father of a pregnant woman) had promised to make provisions for her in his will if she got an abortion was supported by adequate consideration, as a matter of public policy. It is too early to tell whether Dobbs’ rejection of a constitutional right of privacy will make a difference in states’ recognition of a cause of action for coerced abortion. But even when a right of privacy existed, it was based on notions of voluntary choice, which should have allowed recognition of a cause of action when a woman was coerced into having an abortion.
  300. M.N. v. D.S., 616 N.W.2d 287 (Mo. App. 2000).
  301. Id. at 287.
  302. See Seymore, Social Costs of Dobbs’ Pro-Adoption Agenda, supra note 141.
  303. Ann Furedi, The Moral Case for Abortion: A Defence of Reproductive Choice 2 (2d ed. 2021).
  304. Porter, supra note 232, at 63.
  305. Foster, supra note 257, at 37.
  306. Id. at 39.
  307. Foster, supra note 257, at 202–03.
  308. Id. at 37.
  309. Porter, supra note 232, at 63.