Faculty Bibliography
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This article discusses the human rights debate at the core of current controversy over international adoption. Many powerful children's human rights organizations, including UNICEF, take the position that such adoption should be restricted if not eliminated, based on ideas about heritage rights and the related significance of keeping children within their country of origin. They have had a major impact on policy in recent years, resulting in the closing down of international adoption from many countries. This article takes the position that children's most important human rights include the right to grow up in a nurturing family, and that international adoption is able to offer significant numbers of children the permanent homes they need and will not find in their countries of origin. It discusses the history and current trends in such adoption, recent legal developments, the politics and policy pros and cons, and reform directions for the future.
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Written by experts in the field, this authoritative and accessible volume is the first comprehensive introductory history of adoption and foster care in the U.S. from the colonial period to the present, giving particular attention to the ...
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This paper looks at our new technological ability to determine genetic paternity, in the context of legal and social developments related to the family, and tries to come up with some guidelines for figuring out how to decide parentage in the modern era. Many claim that since DNA tests mean we can now easily tell who the genetic father is, we should make that man the legal father and release any other who might be playing that role from parental responsibility. However the trend in law over recent decades has been in the direction of reducing the role that biology plays in determining parentage, with the law giving increasing deference to existing social parenting relationships and to the intent to create such relationships as factors to take into account when parentage is contested. This paper assesses the importance of the genetic link to parenting, considers it in comparison to a variety of other factors relevant to parenting, and sets out some guiding principles for choosing among possible parents, principles designed to serve children's interests in stable, nurturing, parenting relationships.
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This article, originally delivered as a speech, sums up problems and progress in four key areas of central importance to dealing with child abuse and neglect. The article focuses on law and policy in the United States, noting that the U.S. seems to be joining the rest of the world in moving, however haltingly, in a more child-friendly direction. We have developed some early home visitation programs, designed to help fragile families at risk for abuse and neglect - programs which have demonstrated impressive success in preventing maltreatment, and are receiving increasing public and private support throughout the nation. We have passed national legislation - the Multiethnic Placement Act or MEPA - designed to eliminate the race matching of children in need of homes with prospective parents, which served to delay and deny adoptive placement for many minority race children. We have passed other national legislation - the Adoption and Safe Families Act or ASFA - designed to facilitate the adoptive placement of children previously held for extended periods in foster care, and to balance the prior emphasis on family preservation with a new emphasis on children's interests in growing up in a nurturing home. We have begun to confront the problem of parental substance abuse, creating family drug courts and initiating other reforms designed to ensure that either parents engage successfully in substance abuse treatment so that they can adequately parent their children, or otherwise the children move on to adoptive placement. The article emphasizes that controversy surrounds all these reform moves, and that progress in a child-friendly direction depends on the energy and commitment of child advocates.
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In the only book to make sense of the worlds of adoption and fertility treatment, Bartholet combines moving personal narrative with compelling policy analysis.
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Argues that the current system of adoption in the United States is not in the best interest of the children.
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This article is adapted from the introduction to the author's recent book Nobody's Children: Abuse and Neglect, Foster Drift and the Adoption Alternative. It challenges the accepted orthodoxy in the child welfare world that views children as "belonging" in an essential sense to their kinship and their racial groups, and that locks them into inadequate biological and foster homes. It calls for application to abuse and neglect issues, lessons learned from the battered women's movement, and questions why family preservation ideology still reigns supreme when children rather than adult women are involved. It assesses promising new developments in the policy world, and warns of the pitfalls that threaten real progress. It argues that the entire community should take responsibility for all its children, and advocates that we take seriously for the first time in our nation's history the adoption option.
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Elizabeth Bartholet, International Adoption: Propriety, Prospects, and Pragmatics, 13 J. Am. Acad. Matrimonial Law. 181 (1996).
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It is exciting simply to be having this conference focused on adoption law and policy. I remember some nine years ago starting to plan a course dealing with adoption issues and wondering whether I would be able to justify its place in the Harvard Law School curriculum. It is also exciting to look around the room at the wonderfully diverse and knowledgeable group of people the Duke Journal of Gender Law & Policy gathered here to participate in these discussions of important issues involving adoption and the meaning of family. My topic today has to do with adoption and, more particularly, adoption in relation to reproduction. By reproduction I mean three different things: (1) traditional reproduction, or the production of a child through normal intercourse between one man and one woman; (2) infertility treatment, or the use of medical technology to assist a man and a woman to produce a child using his sperm and her egg and womb; and (3) a variety of child producing and parenting arrangements that I have collectively termed "technologic adoption." By the latter, I mean arrangements that result in the social equivalent of either step-parent adoptions or full adoptions, where the child is produced in order to be raised by one or more parents who will not be genetically or biologically related. I am referring to such practices as donor insemination, surrogacy, both in its "traditional" and gestational form, egg donation or sale, and embryo donation or sale.
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Some twenty-five years ago a trial court in Virginia upheld the state ban on interracial marriage, reasoning that God created different races and, accordingly, that it was natural to maintain racial purity, and unnatural to engage in racial mixing. 1 At that time, many other state laws banned both interracial marriage and transracial adoption. In Loving v. Virginia, 2 the United States Supreme Court struck down the Virginia antimiscegenation law, reversing the trial court's decision and holding that it was unconstitutional for states to mandate racial separatism in the family. Later, in Palmore v. Sidoti, 3 the Court ruled that it was unconstitutional to transfer custody of a white child from mother to father solely because the mother was living with a black man. While the Court acknowledged that it might not be in the child's best interests to live in a transracial family, it held that the equal protection doctrine prevented consideration of the race of a potential parent in making custody decisions. In the 1960s and 1970s, the courts in this country outlawed formal state bans on transracial adoption, finding them similarly inconsistent with the equal protection doctrine. There has been a similar development in South Africa today, where the ban on transracial adoption has just recently been lifted as part of the move to abolish apartheid. But in the United States a strange thing happened in 1972. The National Black Social Workers Association (NABSW) issued a statement calling for a new ban on transracial adoption.
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Elizabeth Bartholet, Limits on Transracial Adoption Hurt Children, N.Y. Times, Dec. 8, 1993, at A24.
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Love doesn't just follow biology, as Elizabeth Bartholet learned. Then why, she asks, do our laws, our medical system, even our insurance policies send the message that adoption is second-best?
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Elizabeth Bartholet, Is Embryo Cloning Part of Reproductive Freedom?, Harv. L. Rec. (Oct. 29, 1993).
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