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Chapter 10: The Adoption Law System

In 1995, when Rachel[679] and her partner (both wheelchair users) decided to adopt, they had no idea they were embarking on a 15-year journey to become parents. They contacted the local child welfare agency to express interest in becoming foster or adoptive parents. They were immediately told that because of their disabilities they were not qualified. After they worked their way “up the chain” and threatened a lawsuit, the agency finally allowed them to apply. The couple met all the requirements and completed the necessary training. Soon after that, a brother and sister were placed with them. After only three months, the agency removed the foster children because their birth mother did not want them placed with a disabled couple. The agency offered another child, who proved to be an inappropriate match. Nearly five years later, with no communication from the agency, Rachel and her partner went through the training process again. Despite successful completion of training a second time, they never heard from the agency.

In 2004, after Rachel’s partner started a new job that paid well, the couple decided to apply for private adoption, hoping a private agency would better engage and assist prospective parents with disabilities. But the private adoption process was also riddled with discrimination. In 2006, the couple applied to adopt a young girl. After a home study and nearly two years of silence, they inquired again. Finally, in early 2009, Rachel and her partner were allowed to meet a child. In March 2009, the agency contacted the couple and told them that the girl’s foster parents were relinquishing her (which Rachel and her partner assumed was owing to her significant intellectual and psychiatric disabilities) and asked if they would like to become her foster parents. They agreed and she moved into their home in April 2009. In June 2010, 15 years after beginning their journey to become parents, Rachel and her partner adopted their daughter. Tragically, Rachel’s partner passed away five months later.

Adoption horror stories are all too common for prospective parents with disabilities. The adoption system is riddled with de facto and de jure discrimination that prevents countless prospective parents with disabilities from adopting. Examination of domestic and international adoption practices reveals that reforms are urgently needed across the broad spectrum of adoption practices and procedures.

The Adoption Law System: A Brief Overview

Adoption law (both domestic and international) creates and governs the legal relationship of parent and child and bestows on the adoptive parents all the rights and responsibilities of that role.[680] Once adoption is finalized, adoptive parents play the same role as biological parents in the life of their child.[681] There is no inherent right to adopt a child or become a foster parent. Parenting by adoption is not guaranteed by the United States or any state constitution.[682] Accordingly, many people with disabilities encounter discrimination when engaging in the adoption process.

The goal of adoption is to “provide a permanent home that is suitable for the child and that is in his or her best interests.”[683] The uncertainties posed by the best interest standard, well documented in legal commentary on issues involving rights and protection of minors, also contribute to bias in adoption cases. Reaffirming this issue, researchers from Northwestern University note:

“The vagueness of the ‘best interests of the child’ standard is compounded in practice by the administrative structure of adoptions agencies in the US. The vast majority of non-family adoptions in the US are arranged by private, independent agencies that usually operate on a commercial or for-profit basis. These independent agencies are generally lightly regulated and characterized by wide variability in terms of policies, practices, and procedures. Consequently, adoption remains a complicated construct within the legal system of the United States. In fact, there is no national legal framework governing the adoption process, with matters of law and policy determined separately by each of the 50 states and the District of Columbia. A few umbrella pieces of legislation along with related judicial decisions bring a degree of national foundation for adoption in the legal realm, but statute law, policy, and practice in relation to adoption are largely determined at the state level.”[684]

During the adoption process, courts and agencies consider a list of criteria to determine whether an individual or couple will be suitable parents. Criteria typically include “age, religion, financial stability, emotional health, capacity for parenthood, physical health, marital status, infertility, adjustment to sterility, quality of the marital relationship, motives for adoption, attitudes toward non-marital parenthood, the attitude of significant others, total personality, emotional maturity, and feelings about children.”[685] In deciding among prospective adoptive families, agencies may also consider where the couple lives and whether they have other children.[686] For international adoption, each country defines its own criteria.

Domestic Adoption

Domestic adoption is largely governed by state law, with federal laws providing overarching standards with which state adoption laws must comply.[687] Massachusetts passed the first adoption statute in the United States.[688] By 1929, all states had enacted similar laws, emphasizing the best interest of the child standard.

Domestic adoptions can be accomplished through many different routes, but each must be approved by a presiding judge.[689] There are five types of domestic adoption in the United States: public agency adoptions, licensed private agency adoptions, independent adoptions (often referred to as attorney adoptions), adoption through a facilitator (allowed in some states), and unlicensed private agency adoptions.[690] Public and licensed private agencies are required to meet state standards and operate under more oversight to ensure quality services.[691] Unlicensed agencies and facilitators often are not subject to the same state oversight; consequently, there may be more financial, emotional, and legal risk for adoptive and birth families who use these services.[692] Public agencies generally oversee the adoption of children in the state child welfare system.[693] Children in foster care have been removed from their families for a variety of reasons, including abuse or neglect, and range in age from infants to teens.[694] In public agency adoptions, matches are generally arranged by the agency—through a meeting of several social workers and supervisors or by a placement committee—and are based on the needs of the child and the ability of the family to meet those needs.[695]

In licensed private agency adoptions, the birth parents relinquish their parental rights to the agency and the adoptive parents then work with the agency to adopt.[696] Many agencies allow birth parents to choose a prospective adoptive family for their child on the basis of profiles prospective families create to share information about themselves.[697] “Prospective parents may have an opportunity to meet the birth parents face to face; however, social workers may make decisions about which families’ profiles are shared with expectant parents considering adoption, or agency staff may make the match of a child and prospective adoptive parent. In addition, agencies may give preference to certain types of individuals or couples (e.g., due to religious affiliation or marital status).”[698]

In independent adoptions, private attorneys assist prospective parents with the adoption process, which usually involves the adoption of an infant.[699] Families that adopt independently identify the expectant parents without an agency’s assistance, and [700] infants usually are placed with the adoptive parents directly from the hospital after birth.[701] While state laws differ about the timing of the birth parents’ consent and the conditions and timing of the birth parents’ right to revoke that consent, there is always the possibility that birth parents will change their minds when the baby is born; because of the inherent parenting rights of the biological parents, their rights are stringently protected.[702] The birth parents are the child’s legal parents until they consent to the surrender of their parental rights.[703] Birth parents typically provide written consent for the adoption, which must be approved by the court.[704] Independent adoptions are permitted in 46 states; Colorado, Connecticut, Delaware, and Massachusetts prohibit them.[705]

Adoptive placements by facilitators and unlicensed private agencies offer the least amount of supervision and oversight.[706] A facilitator is a person who links prospective adoptive parents with expectant birth mothers for a fee.[707] Facilitators may or may not be regulated in their state and may have varying degrees of expertise in adoption practice.[708] Two states (Delaware and Kansas) strictly prohibit the use of facilitators.[709]

Adoptions often take place across state lines; these are regulated by federal legislation.[710] Interstate adoptions are affected by two agreements between the sending and receiving states: the Interstate Compact on Adoption and Medical Assistance (ICAMA) and the Interstate Compact on the Placement of Children (ICPC). These agreements carry the force of law.[711] Currently, 42 states participate in the ICAMA, which regulates and coordinates the payment of benefits to children with special needs, adopted pursuant to an adoption assistance agreement, when they are adopted from one state by a family in another state, or when the adoptive family moves from one state to another. The ICPC is an agreement among all 50 states, the District of Columbia, and the U.S. Virgin Islands, and is covered by legal statute in all states. The compact applies to placements of minor children made from one state to another by public and private agencies, the courts, independent placers (i.e., physicians and attorneys), and individuals.

There is a growing need for adoptive families; but although the number of children in foster care is on the rise, adoptions have dramatically decreased since the 1970s.[712] Nearly 127,000 children are adopted every year in the United States, but this is “a sharp drop since the century-long high point of 175,000 adoptions in 1970.”[713]

International Adoption

International adoption (also referred to as intercountry adoption) differs from domestic adoption in several significant ways.[714] Children who are eligible for intercountry adoption must have lost their birth parents to death or abandonment, or the birth parents must prove that they are incapable of caring for the children.[715] In some cases, children adopted through intercountry adoption come from orphanages or institutional settings.[716] The placement process for international adoption underwent significant change following the United States’ ratification of the Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption on April 1, 2008.[717]

The convention is “designed to protect the best interests of children and prevent the abduction, sale, and trafficking of children.”[718] In the United States, the Department of State has overall responsibility for implementing the Hague Convention, although the U.S. Citizenship and Immigration Services (USCIS) in the Department of Homeland Security also play a significant role.[719] The United States is one of 85 nations that are parties to the Hague Convention.[720] When a U.S. citizen wants to adopt a child from any of these nations, Hague Convention rules apply. In adopting a child from a country that is not a party to the Hague Convention, some rules vary.[721]

Disability Law and the Adoption System

The ADA and the Rehabilitation Act govern the adoption system, both domestic and to a lesser extent international. Title II of the ADA prohibits discrimination by public entities run or funded by state and local governments, such as public adoption agencies.[722] Conversely, Title III of the ADA prohibits any public accommodation from discriminating against people with disabilities by denial of access to goods and services.[723] Title III unquestionably governs access to private adoptions, as it includes “adoption agency” in the definition of public accommodations.[724]

One of the key ADA provisions is that adoption agencies may not use “standards or criteria or methods of discrimination that have the effect of discriminating on the basis of disability.”[725] Of particular relevance for adoption agencies is the prohibition against “imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities from fully and equally enjoying” any services “unless the criteria can be shown to be necessary for the provision” of those services.[726] (These exceptions are discussed below.)

According to the Evan B. Donaldson Adoption Institute, adoption agencies often ask whether they may exclude a person with HIV infection because that person allegedly poses a direct threat to the health and safety of others.[727] The ADA explicitly prohibits discrimination on the basis of HIV infection; adoption agencies may not categorically reject individuals as prospective adoptive parents on this basis.[728]

Additionally, the ADA requires adoption agencies to provide reasonable modifications in policies, practices, and procedures as needed for prospective adoptive parents with disabilities. The agencies must provide auxiliary aids and services when they are necessary to ensure effective communication with prospective parents with disabilities. These mandates apply to the entire adoption process (e.g., application, home study, and interview).

Section 504 of the Rehabilitation Act governs adoption agencies that receive federal funding. In at least one reported case, Doe v. Nebraska,[729] a prospective adoptive parent with a disability who was discriminated against successfully sued for damages on the basis of the Rehabilitation Act. In this case, a couple was fostering two children in a foster care-to-adoption program. When the social services agency learned that the foster mother was HIV-positive, the agency immediately removed the children. A court ordered the agency to return the children based on its finding that returning them to the family was in their best interest. Subsequently, the agency found another placement for the younger child. The family filed a motion with the court, and the agency was found in violation of the court order. Eventually, the family won back custody of the younger child. Sadly, the mother died eight months later. The adoption was finalized the day before she died. Using the Rehabilitation Act, the estate of the mother and her adopted son sued the county for discriminating against the deceased foster mother. The state of Nebraska argued that it was immune from suit under the 11th Amendment. The court ruled that the couple had won the underlying discrimination claim on the merits, that Nebraska had waived its immunity from suit by accepting federal monies to run its program, and, therefore, the estate could sue under the Rehabilitation Act.

While federal disability laws, such as the ADA and the Rehabilitation Act, do not govern other countries’ conduct, they do govern key aspects of international adoption. For instance, “The ADA applies fully to all adoption agencies doing business on U.S. soil so, by law, they must serve and accommodate the needs of adoptive parents with disabilities.”[730] This means that private adoption agencies, even if they are engaging in international adoption, must comply with the access and nondiscrimination mandates of Title III. This is particularly relevant for home studies and the application process.

The Rehabilitation Act requires federal agencies to provide programmatic access and reasonable accommodations as necessary. Accordingly, USCIS and other federal agencies engaged in international adoption must comply with the Rehabilitation Act. This is especially significant for prospective adoptive parents with disabilities during the application and screening process.

Access to the Domestic Adoption System

Many people with disabilities seek to form families through domestic adoption. For some, the type of disability may make adoption the sole means by which parenting becomes possible. Unfortunately, access to domestic adoption is often impeded by discriminatory practices. Many prospective parents with disabilities are categorically denied the opportunity to adopt because of their disability, while others encounter bias and speculation concerning their parenting abilities. Because of the unspoken ranking system among domestic adoption agencies, prospective adoptive parents with disabilities are often completely precluded from adopting or are forced to wait for indefinite periods before a match is found. In light of the growing need for adoptive parents and “[i]n order to place as many children as possible, no one group of prospective parents should ever be categorically excluded.”[731]

Discrimination and Bias

Despite the ADA and Rehabilitation Act, prospective adoptive parents with disabilities regularly encounter barriers erected by discrimination and bias. According to Elizabeth Bartholet, Harvard Law School professor and one of the nation’s leading experts on adoption, “Discrimination is the name of the game in adoptive parenting. Those who procreate live in a world of near-absolute parenting rights. Those who would adopt have no rights. They must beg for the privilege of parenting and do so in a state-administered realm that denies them both the right to privacy and the civil rights that we have come to think of as fundamental. Differential treatment on the basis of age, race, religion, and disability has been outlawed in almost all areas of our communal lives in the United States. Increasingly the law forbids discrimination on the basis of marital status and sexual orientation. It is only in the area of adoption that our system proclaims not simply the right to discriminate on all these bases but the importance of doing so. It is not just the prospective parents who are treated shabbily, but also the children, in whose best interests the system is supposedly designed.”[732]

Echoing Bartholet’s sentiments in his article “Empowerment for the Pursuit of Happiness: Parents with Disabilities and the Americans with Disabilities Act,” Dave Shade says, “The adoption process is complex, and because it frequently involves personal judgments by parents, social workers, judges, and other adoption professionals, it is fraught with the opportunity for discrimination.”[733]

Categorical Discrimination

The ADA prohibits adoption agencies from using “standards or criteria or methods of discrimination that have the effect of discriminating on the basis of disability.”[734] Specifically, adoption agencies are forbidden from “imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities from fully and equally enjoying” any services, “unless the criteria can be shown to be necessary for the provision” of those services.[735] The limited exceptions to this mandate are discussed later in this chapter.

Despite the ADA mandates, research demonstrates that a significant number of adoption agencies continue to categorically deny prospective parents with disabilities. In 2010, researchers from Northwestern University completed a study that examined the experiences of prospective adoptive parents who were cancer survivors.[736] The study was aimed at the attitudes of the adoption agencies. Of the 27 agencies that were interviewed, 7 admitted that certain medical conditions would prevent people from adopting through their agency. They cited a variety of illnesses and medical conditions that included “contractible diseases; AIDS; active, life-threatening diseases; use of antidepressants; terminal illnesses that shorten lifespan; conditions that require a large amount of narcotics that render the person unconscious; substance addiction; and severe mental conditions like schizophrenia.” Agencies were also asked whether they have a policy for dealing with prospective adoptive parents who are HIV-positive. Two agencies responded affirmatively; one said that HIV-positive persons would be disqualified, and the other cited the state law regarding the right of HIV-positive persons to adopt. Extensive research into state laws regarding the potential for an HIV-positive person to serve as an adoptive parent yielded no results.[737] The researchers concluded, “Although existing legislative documents such as the Americans with Disabilities Act (ADA) protect cancer survivors’ rights to adopt a child, these protections are largely inconsequential in practice…. [The] network of adoption agencies working with potential parents in the U.S. is characterized by fundamental variability and ambiguity…[and] the current adoption system permits informal prejudice in practice that likely varies from one agency to the next.”[738]

Prospective parents with disabilities continue to encounter categorical denials. When Christina,[739] a woman with significant physical and sensory (vision and hearing) disabilities, applied to adopt her niece, she was astounded and appalled by her experience. The social worker at the public adoption agency told Christina that “a handicapped woman can’t take care of a handicapped child.” Christina’s battle to adopt her niece lasted for nearly a year. Eventually, she adopted her niece, after a court-appointed special advocate got involved and the state child welfare agency was almost held in contempt. Since this experience, Christina has adopted two more children and is in the process of adopting another.

Agency Discrimination and Home Studies

In addition to categorically denying prospective parents with disabilities, domestic adoptions frequently engage in other discriminatory practices. Bartholet says that prospective adoptive parents are subject to an unspoken “ranking system.” That is, the domestic adoption system ranks prospective parents in terms of relative desirability, “using factors that reflect the system’s bias in favor of a biologic parenting model, as well as a socially traditional family model.”[740] Pursuant to this ranking system, “Heterosexual couples in their late 20s or early 30s with apparently stable marriages are at the top of the ladder. These are the people who can, if they are not infertile, produce children, and who should in the system’s view be parents. Single applicants and those in their late 30s and 40s are placed lower on the ladder, along with people with mild disabilities. Gays, lesbians, and those who are significantly older or seriously disabled are generally excluded altogether.”[741]

Similarly, the children in need of adoption are also ranked in a list, which is based on the desirability of the adoptive child. Explained by Kimberly A. Collier in her Texas Wesleyan Law Review article, “This list places healthy newborns and infants at the top of the list as being most desirable. The children next on the list are somewhat older or less healthy than those at the top of the list. As the age of the children increases or the health issues become more problematic, the ranking of desirability continues to fall until one reaches the bottom of the list, where the oldest and most seriously disabled children are placed. Once the agency has composed these two lists, it works to match the children with the prospective parents. The parents with the highest ranking are given the most ‘buying power,’ with the most desirable parents being matched with the most desirable children. Less desirable parents are matched with the less desirable children, and so on down the list.”[742] Given the proliferation of discriminatory agency standards, the most coveted adoptable children are least likely to be matched with applicants with disabilities.[743]

Case law, research, and anecdotal evidence demonstrate that disability often counts against prospective adoptive parents or negatively affects their adoption experience. In a national survey of 1,200 parents with disabilities, conducted for TLG by Linda Barker and Vida Maralami, 8 percent reported that they experienced attitudinal barriers that inhibited or prevented adoption.[744]

Most prospective adoptive parents with disabilities are mindful of the discriminatory practices that pervade the domestic adoption law system. According to a disabled couple that adopted, “At the start of our adoption process we were not concerned about whether we were capable and would make good parents, but were rather concerned about whether we would be viewed as capable parents by the adoption counselor at the agency as well as by the birth mother.”[745]

Although the potential for discrimination against people with disabilities exists during other stages of the adoption process—such as the placement decision and the judicial finalization—the home study is often where people with disabilities face the greatest vulnerability.[746] According to Shade, prospective adoptive parents with disabilities often face discrimination in one of two ways: “First, the evaluator may simply refuse to approve any adoptive placement, judging the parents unsuitable to raise any child. Second, the evaluator may limit the approval of an adoptive placement to only those children deemed compatible with the disability of the adoptive parent. The stereotypes and societal attitudes concerning parents with disabilities are pervasive and powerful. Even evaluators trained to assess parental fitness are capable of falling victim to these prejudices. Social worker texts, for example, continue to propagate the paternalistic tendencies that conclude that disability is an important factor in assessing parental fitness.”[747]

Most domestic adoptions, whether private or public, include a rigorous preplacement evaluation of the adoptive home known as a “home study.”[748] A home study is the principal instrument used to assess the fitness of prospective adoptive parents.[749] Some states require that a state agency complete the home study, while others allow any licensed child placement agency to complete the study.[750] Generally, the evaluator is a social worker, but the credentials and qualifications of home study workers vary greatly among jurisdictions.[751] Further, “the home study process may also vary widely, even within the same locality, depending upon the attitude and diligence of the individual evaluator.”[752] The content of a home study can also vary.[753] “Most state statutes describe the required content in very general terms, if at all, leaving the form and content of the study to the evaluator.”[754] Given the enormous latitude home study evaluators possess, Shade says, “It seems reasonable to conclude that the individual evaluator will have a tremendous amount of discretion when conducting a home study, perhaps making it easier for discrimination to be a part of the process.”[755]

Despite ADA protections, several nonlegal issues limit its usefulness.[756] Shade says, “Situations in which the evaluating agency will also be making the placement decision put the adoptive parents in a terrible quandary: alienating the agency by initiating an ADA claim may jeopardize the placement process, a risk that many adoptive parents may be unwilling to take. Even where two different agencies will be making the home study and placement decisions, adoptive parents may fear that expressing dissatisfaction about the home study process or outcome could be communicated between the different agencies and might jeopardize the adoption. Finally, parents may be afraid to ‘cause trouble’ during the present adoption out of fear that any future adoptions might be jeopardized. These fears may hinder prospective adoptive parents from seeking legal relief, regardless of the strength of their legal claims and despite specific regulations explicitly designed to protect them from retaliation. Thus, rather than initiating an ADA claim, these parents may be more likely either to re-apply with another agency, or delay their adoption plans in the hopes that they can ‘rehabilitate’ themselves to the agency’s satisfaction.”[757]

In sum, the discretion and latitude bestowed on home study evaluators often results in prospective parents with disabilities encountering bias and discrimination. While the ADA unquestionably applies, prospective parents with disabilities often feel ambivalent about bringing it up.

Discrimination by Birth Parents

Birth parents can also play a role in discriminating among potential adoptive parents. In the majority of independent adoptions, birth parents “determine the ultimate suitability of adopters and, therefore, can openly disfavor against” parents with disabilities.[758] In fact, the right of birth parents to place their child for adoption with whomever they choose, or to authorize another person to do so on their behalf has been embodied in the laws of all but three states (Connecticut, Delaware, and Massachusetts).[759] For Ken[760] (a man with hemophilia, hepatitis C, and HIV infection) and his wife (a wheelchair user), being chosen by birth parents was their biggest concern.

Sara C. Mills examined discrimination by birth parents in her 2011 article “Perpetuating Ageism via Adoption Standards and Practices” in the Wisconsin Journal of Law, Gender and Society. According to Mills, “In independent adoptions and those involving private agencies, the opportunity for discrimination against prospective adoptive parents is far more common; this is because agency policies and the wishes of birth parents dictate the choice of applicants.”[761]

Permissible Discrimination or Valid Defenses to the ADA?

In general, adoption agencies may not deny prospective parents with disabilities the opportunity to adopt on the basis of the applicant’s disability, but there are exceptions. One factor that can be cited to justify the use of disability-related screening criteria is safety.[762] Pursuant to the ADA, adoption agencies may impose legitimate safety requirements necessary for the safe operation of their services, programs, and activities. However, they must ensure that their safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about people with disabilities.[763]

Similarly, adoption agencies may use the justification of direct threat. Agencies are not required to permit a person to participate in or benefit from their services if that person poses a direct threat to the health or safety of others. However, in determining whether a person poses a direct threat to the health or safety of others, adoption agencies must make an individualized assessment based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.[764] The Evan B. Donaldson Adoption Institute advises agencies, “When such individualized assessments are utilized, the result may well be an acceptance of an individual with a significant disability, such as, for example, a woman who has crippling degenerative arthritis but whose home has been thoroughly adapted to enable her to function and whose husband is actively involved in parenting and home management.”[765]

The first court to address the applicability of the ADA to adoption and foster care agencies has weighed in, with a decision supporting the right of adoption and foster care agencies to take disability into account as a “legitimate consideration” in assessing a person’s fitness to become an adoptive or foster parent, provided that the agency does not routinely exclude disabled applicants from consideration by reason of their disability. In 1998, the U.S. District Court for the Western District of New York decided Adams v. Monroe County; it held that adoption agencies may consider a prospective parent’s disability as a “legitimate” consideration.[766] In this case, a blind woman and her husband had qualified to participate in the foster to adoption program in their county, but no child was placed with them during their year with the program. The couple then proactively requested that a four-year-old child they had learned of be placed with them. The agency responded that the child was very active and the wife’s disability precluded placement. In a lawsuit alleging violation of the ADA, the court ruled that three elements must be present to proceed with such a claim: (1) demonstrate that the plaintiffs were disabled in the meaning of the ADA; (2) prove that the prospective parents were otherwise qualified for placement of a child (had met all program requirements); and (3) illustrate that they had not received a child on the basis of discrimination. The court ultimately did not find in favor of the plaintiffs, ruling that discrimination had not been proved. The court found that the alleged safety issue related to this particular child, rather than a blanket denial of placement of any child in the home, precluded a finding of discriminatory conduct. The Adams precedent has potentially devastating power to prevent prospective parents with disabilities from adoption because of arbitrary “legitimate” considerations raised by adoption agencies.

Patchwork Quilt of State Laws

Despite the protections afforded by the Rehabilitation Act and the ADA, prospective adoptive parents with disabilities face increasing barriers to adopting domestically. To address the egregious practices of adoption agencies, some states have begun to add protections in their state statues.

For instance, Michigan amended its adoption laws in 1994 to prohibit adoption agencies from discriminating against potential adoptive parents on the grounds of age, race, religion, disability, or income level.[767] As noted by Jehnna Irene Hanan, “The benefit of such a scheme is that it opens more potential adoptive homes for waiting children. By providing more placement options, the new law better safeguards the rights of children to a stable and permanent home.”[768]

Similarly, Wisconsin’s adoption statute states, “Although otherwise qualified, no person shall be denied the benefits of this section because the person is deaf, blind or has other physical handicaps.”[769] Idaho’s adoption statute also bars discrimination on the basis of disability: “Adoptions shall not be denied solely on the basis of the disability of a prospective adoptive parent.”[770] Idaho’s adoption statute further states that “the prospective adoptive parent shall have the right to provide evidence to the court regarding the manner in which the use of adaptive equipment or supportive services will enable the parent to carry out the responsibilities of parenting the child.”[771]

However, some states specifically deny prospective parents with disabilities the opportunity to adopt. As recently as December 2011, Virginia erected an enormous impediment by approving regulations that allows adoption agencies to discriminate against prospective adoptive parents based on six categories, including disability.[772] This regulation not only hurts many prospective adoptive parents, but is devastating for the more than 1,200 children currently waiting to be adopted in Virginia.[773] Moreover, this regulation raises significant concern about whether other states will take similar discriminatory action.

North Dakota has a similar statute: “The department of human services may not deny a license because of the applicant’s objection to performing, assisting, counseling, recommending, facilitating, referring, or participating in a placement that violates the applicant’s written religious or moral convictions or policies.”[774] Thus, the state may not refuse to license adoption agencies even if it knows that the agencies will discriminate against certain classes of people.

In light of the patchwork quilt of state adoption laws—especially Virginia’s recent enactment, which explicitly discriminates against prospective parents with disabilities—the need for action could not be more timely or clear. Federal protections of prospective adoptive parents with disabilities must be promulgated.

Ensuring Access to Domestic Adoption

In light of the vague and indeterminate state-by-state legal system of adoption and the variability in policies and procedures among adoption agencies, a multipronged approach is necessary to eradicate the discrimination that pervades the adoption system.

The Federal Government, which has been nearly silent about the discrimination experienced by prospective adoptive parents with disabilities, must focus on ensuring the rights of these prospective parents. For example, the HHS Office for Civil Rights Web site contains extensive information on the legal rights and protection from race, color, and national origin discrimination for prospective foster and adoptive parents.[775] However, despite similar civil rights protections, there is no analogous information for prospective foster or adoptive parents with disabilities.

DOJ has addressed the discriminatory practices of domestic adoption agencies in at least one case. In 2002, DOJ announced that it had reached a settlement agreement with Maple Star Nevada, a nonprofit agency in Las Vegas.[776] Pursuant to the agreement, the agency will “allow deaf and hard-of-hearing applicants to be considered for selection as foster parents.”[777] Moreover, the agency agreed to provide effective communication, specifically including sign language interpreters. Further, it agreed to adopt new policies to ensure compliance with Title III of the ADA, including a nondiscrimination policy. This settlement agreement resolved a complaint filed by a deaf woman who contacted Maple Star Nevada for information on applying to become a foster parent. “Maple Star allegedly refused to provide an interpreter during the required application process and certification. The deaf applicant was interested in providing foster care services for children with special needs and adolescents who cannot be maintained in large group care or foster care setting.” [778]

Accordingly, DOJ, in collaboration with HHS as appropriate, must issue guidance to domestic public and private adoption agencies, reinforcing their legal obligations pursuant to the ADA. Such guidance must address the agencies’ duty to provide reasonable accommodations to prospective adoptive parents with disabilities throughout all phases of the process and the fact that presumptions of parental incompetence based on disability violate the ADA. Further, DOJ, and HHS as appropriate, must investigate all reported allegations of domestic public and private adoption agencies violating the ADA and enforce as appropriate.

Congress must also address the discrimination facing prospective adoptive parents with disabilities. Congress has made laudable progress in addressing discrimination against prospective parents of color. The Multiethnic Placement Act of 1994 (MEPA), as amended by Section 1808(c) of the Small Business Job Protection Act of 1996 (also known as the Interethnic Adoption Provisions or Section 1808) prohibits the use of a child’s or prospective parent’s race, color, or national origin to deny or delay a child’s placement.[779] The law also requires states to provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of the children in care for whom homes are needed. Congress must pass similar legislation protecting the rights of prospective adoptive parents with disabilities.

Finally, state courts must ensure that adoption agencies comply with federal disability laws and do not discriminate against prospective parents with disabilities. In re Adoption of Richardson[780] highlights the brutal bias lower courts have against prospective parents with disabilities. This case involved a deaf couple who had previously raised biological children and were denied the right to adopt on the basis of their disabilities. The lower court judge actually said, “Is this a normally happy home? There is no question about it, it is a happy home, but is it a normal home? I don’t think the court could make a finding that it is a normal home when these poor unfortunate people, they are handicapped, and what can they do in the way of bringing this child up to be the type of citizen we all want him to be?”[781] The judge then wrote a letter to the county adoption bureau that said in part, “This adoption should be nipped in the bud before these unfortunate people get too attached to the child as, in my opinion, we are not doing right by the youngster in signing and approving an adoption to deaf-mutes.”[782] This decision was reversed on appeal, but it illustrates biases that pervade the lower courts.

Unfortunately, few contested cases reach the courts and even fewer reach the appeals courts.[783] According to Mills, one study found that only 0.1 percent of adoption cases nationally are litigated and even fewer involve contested adoptive parents (0.001 percent).[784] It is unclear how many of these contested cases involve discrimination based on disability; probably very few. Richardson suggests that many prospective parents with disabilities may need to appeal their decisions because of the bias that exists in lower courts. Litigation, especially appeals, is very costly and likely not an option for many prospective parents with disabilities. State courts, especially lower courts, must appropriately apply federal disability laws to adoption cases.

Surely, “every child has the right to a loving, nurturing and permanent family, and … people from a variety of life experiences offer strengths for these children.”[785] And everyone, including prospective parents with disabilities, should have an equal opportunity to provide that family.

International Adoption: A Promising Alternative?

In consideration of the pervasive discrimination in the domestic adoption system, does international adoption provide prospective parents with disabilities greater opportunities? According to Erika Lynn Kleiman:

“One of the most common reasons for a person to turn to international adoption is that he has effectively been rendered ineligible as a prospective adoptive parent by domestic agency criteria…. Foreign countries often have less stringent requirements than American agencies. In addition, international home studies are often less rigorous than domestic ones. Admittedly, there are some countries with strict restrictions regarding which people may adopt their children. Nevertheless, the large number of countries that are willing to allow Americans to adopt their orphaned children increases most people’s chances of meeting the standards of eligibility for adoptive parents in at least one country. As such, international adoption provides an alternate source of children for Americans who may not qualify as eligible adoptive parents under domestic standards.” [786]

As this section reveals, prospective parents with disabilities encounter mixed results with international adoption. Some countries have less stringent requirements, and international home studies tend to be less rigorous. On the other hand, some countries categorically deny prospective parents with disabilities, and people with disabilities often face barriers to accessibility and travel.

Invidious Criteria

While international adoption may provide greater opportunities, nations differ in whether they permit people with disabilities to adopt. Some countries completely disqualify people with disabilities, while others apply more liberal criteria. Some nations are becoming increasingly restrictive in their eligibility requirements for prospective parents. Some of these countries have fewer children available, so they can become more selective about who can adopt.[787] Restrictions are also likely a result of cultural differences in how disability is understood in other nations. The substantial gulf between understanding of disability in much of the United States and that demonstrated by other nations is often displayed when Americans with disabilities attempt to adopt from abroad. Ella Callow, director of the legal program at TLG, offers the following advice: “In choosing which type of international adoption to undertake, people with disabilities must be aware of the realities in other countries. The whole world is not America and most other nations have not focused as much attention on physical accommodation and education to increase societal inclusion. In light of this…[m]any other countries have policies that reflect strongly held beliefs about what constitutes disability, what disabilities will adversely affect the ability to parent and what type of children should go to homes where a parent is disabled.” [788]

For example, China recently modified its eligibility requirements, making it impossible for most people with disabilities to adopt from there. The Department of State says that to adopt a child from China:

“Both partners must be physically and mentally fit, with none of the following conditions: AIDS; mental disability; infectious disease that is actively contagious; blind in either eye; hearing loss in both ears or loss of language function (those adopting children with hearing or language function loss are exempted from this requirement); nonfunction or dysfunction of limbs or trunk caused by impairment, incomplete limbs, paralysis, or deformation; severe facial deformation; severe diseases that require long-term treatment and that may affect life expectancy, including malignant tumors, lupus, nephrosis, epilepsy, etc.; major organ transplant within ten years; schizophrenia; severe mental disorders requiring medication for more than two years, including depression, mania, or anxiety neurosis; and Body Mass Index (BMI) of 40 or more.”[789]

Of the top five sending countries in 2011, three had eligibility criteria that completely or nearly precluded prospective parents with disabilities from adopting children from their countries.[790] China, the top sending country, outright denies prospective parents with disabilities.[791] Russia, which is number three, denies prospective parents with tuberculosis (active or chronic), illness of the internal organs or nervous system, dysfunction of the limbs, infectious diseases, drug or alcohol addictions, psychiatric disorders, or any disability that prevents the person from working.[792] Ukraine, the fifth of the top sending countries, denies prospective parents with substance abuse, syphilis, and HIV infection or AIDS.[793] In contrast, Bulgaria has the fewest requirements for adoptive families and will often accept parents with disabilities.[794]

Because of some countries’ stringent eligibility criteria, many prospective adoptive parents with disabilities do not pursue international adoption. For example, Ken and his wife[795] (the adoptive parents mentioned earlier) made a “conscious decision not to explore international adoption because of countries’ rules.”

Agency Discrimination and Home Studies

Generally, the first step in the international adoption process is to choose an adoption agency. Each agency works with a different set of countries; some focus on a single country.[796] Pursuant to the rules of the Hague Convention, the agency must be accredited by the U.S. government if the child’s country is also a participant in the convention. If the child’s country is not a participant, the Hague rules do not apply, and the process will follow the laws of the sending and receiving countries.[797] Even when the Hague rules do not apply, a home study and USCIS approval are required.

Linda A. Cronin, in Action Online: Magazine of the United Spinal Association, said, “The ADA applies fully to all adoption agencies doing business on U.S. soil so, by law, they must serve and accommodate the needs of adoptive parents with disabilities.”[798] Thus, such adoption agencies, even though they are engaging in international adoption, must provide prospective parents with disabilities reasonable modifications, auxiliary aids, and services.

But despite federal disability law protections, the same impediments found in domestic adoption exist in international adoption. These adoption agencies are not likely to be immune to the bias that pervades the domestic adoption system; in fact, they are often the same agencies that facilitate domestic adoption.

Other Barriers to International Adoption

In addition to stringent eligibility restrictions and agency discrimination, prospective adoptive parents with disabilities often encounter barriers related to accessibility, travel requirements, and cost.

International adoption includes an extensive application and screening process conducted by USCIS. Jessica, a woman with osteogenesis imperfecta, and her husband, who adopted two children from Guatemala, said USCIS “wanted a very specific letter from [Jessica’s doctor] that indicated exactly what my medical history was, how my disability impacted my life and my prognosis for the future. They also wanted a letter from family members who would be able to step in and care for my child in an emergency.”[799] USCIS also requires a background check, which includes fingerprinting, for all international adoptions. Rebecca,[800] a mother with disabilities, noted that the fingerprinting requirement may preclude some people who do not have fingerprints because of their disability.

As a federal agency, USCIS must comply with Section 504 of the Rehabilitation Act. The agency must provide reasonable modifications in policies, practices, and procedures as needed for prospective adoptive parents with disabilities, as well as auxiliary aids and services when they are necessary to ensure effective communication. Examples include a sign language interpreter for deaf prospective parents or application materials in alternative formats for blind or low-vision prospective parents.

Some prospective adoptive parents may encounter travel requirements that preclude or limit them from international adoption. Some countries require more than one trip, while others allow the children to be escorted to the United States by someone other than the parents.[801] Some nations require longer trips than others. For instance, the Ukraine requires adoptive parents to stay for at least seven weeks.[802] Travel can be difficult for some prospective parents with disabilities, who may need specialized equipment, personal assistance services, accessible hotels, and transportation. This can be cost-prohibitive for some, thus precluding them from international adoption.

Despite significant obstacles, people with disabilities do successfully adopt internationally. The Chicago Tribune published the story of a blind couple who adopted two girls, one from India and the other from China (presumably before China changed its requirements). [803] Both girls are also blind. The couple was reluctant to have children, until a pair of nuns collecting money for overseas orphanages told them about a blind orphan in Bangalore, India.[804] After 18 months, they adopted their first daughter; a year later, they adopted their second.[805]

Improving Access to International Adoption

As international adoption continues to expand and become a route to parenthood for many, the United States must ensure that all prospective parents have the opportunity to benefit, including prospective parents with disabilities. NCD recommends that CI, part of the Bureau of Consular Affairs at the Department of State, and the Department of State’s Office of the Special Advisor for International Disability Rights work together to expand the rights of people with disabilities to adopt internationally, particularly from nations that have ratified the Hague Convention. Such work will require educating state and private adoption agencies in other countries on the ability of people with disabilities to parent, with or without adaptive parenting equipment, techniques, or supportive services. Further, DOJ, in collaboration with HHS and the Department of State as appropriate, must ensure that international adoption agencies on U.S. soil are complying with federal disability laws. Similarly, USCIS must ensure that it is complying with its 504 mandates.

Conclusion

Around the world, countless children are waiting for their forever homes. At the same time, many people with disabilities want to provide a loving and nurturing home and family for children. Ignorance, stigma, and misconceptions are forestalling harmonious solutions. The result is devastating: Children spend many years in deplorable conditions in foster care and orphanages, while people with disabilities are robbed of the opportunity to welcome these children into their homes and hearts.

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