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Excerpted From: Aleigh Flournoy, Black Child, White Parents: Balancing Biology and Bond in Modern Transracial Adoptions, 34 J. Journal of the American Academy of Matrimonial Lawyers 551 (2022) (174 Footnotes) (Full Document)


AleighFlournoyTransracial adoption disrupts the normative nuclear family by joining “racially different parents and children” together. Transracial adoption is the most visible form of adoption because the family's physical differences are more obvious to the everyday onlooker. In the United States, the adopting parents are almost always white, and the adoptees are almost always children of color.

Transracial adoption is not a novel topic. Over the last 75 years, the topic has aroused an “acrimonious debate” between those for and those against it: those who view transracial adoption as “positive for both the children and society as a whole” and “those who view [it] as injurious to Black children and communities.” During the 1960s, transracial adoption started gaining momentum. In response to the number of Black children in foster care, social welfare agencies relaxed racial matching practices in favor of placing Black children with white families. In response, spurred by the assassination of Martin Luther King Jr., JimCrow laws, and other racial injustices, Black social workers vehemently voiced their opposition to the practice. In the 1990s, Congress introduced legislation prohibiting federally funded child welfare agencies from delaying or denying a child's placement based on race. Recently, the debate has reignited in response to three major occurrences: the successive murders of Ahmaud Arbery, Breonna Taylor, and George Floyd in 2020; the disproportionate impact of COVID-19 on the Black community, and the Black Lives Matter social movement's mission to draw attention to the racism, discrimination, and inequality BlackAmericans endure more than fifty-five years after the enactment of the Civil Rights Act and more than 150 years after the abolition of slavery.

In 2020, the American foster care system served 632,000 children. More than 400,000 of these children remained in foster care at the end of the government's fiscal year, and more than 115,000 of these children were waiting to be adopted. Eighteen months is the average amount of time a child spends in state care, and 5% of children remain in foster care for five or more years. The average age of a child waiting to be adopted is eight. Currently, the proportion of males to females waiting to be adopted is 52% to 48%, respectively. In 2020, 40% of children available for adoption were Black.

This Comment does not definitively take a position in favor of or opposition to transracial adoption. Ample academics have sufficiently and sophisticatedly argued both sides of the debate. Rather, this Comment accepts that a transracial adoption is a legal form of adoption, and therefore, it advocates for policies and practices that prioritize consciously selecting a family for each specific child, including consideration of a parent's race or parent's preparedness for the specific struggles that come with rearing a child of a different race. This Comment proceeds in four parts. Part I provides the history of transracial adoption in the United States. Part II examines federal legislation and state laws surrounding transracial adoption, and Part III offers key considerations surrounding transracial adoption.

While beyond the scope of this Comment, the author wishes to make note of the forced removal of American Indian children from their families and tribes throughout the 1950s, 1960s, and 1970s. Congress passed the Indian Child Welfare Act (ICWA) in 1978 to stop the “irreversible decimation” of American Indian children. Despite ICWA, Native children continue to be four times more likely to be removed from their families than their white counterparts. Although progress has been made through ICWA, American Indian children still need greater protection.

[. . .]

Adoption from foster care is about recruiting and preparing families for the child, and not vice versa. Every adoption decision should be based on each child's individual needs. A child's best interests are paramount, and in transracial adoption, that interest includes the consideration of race.

Current federal policies prohibit delaying or denying an adoption based on RCNO. These policies are intended to decrease the number of Black children in foster care and to reduce the amount of time Black children spend in foster care. The policy may be well-intentioned, but it also arguably overlooks the importance of matching a child with the right forever family over the first available forever family in the vein of adhering to a federal policy.

Ongoing connections to one's racial heritage serve a child's best interests, regardless of if the child is adopted by Black or white parents. Adoption practices should prioritize the importance of culture and race in forming a child's sense of self and identity. When selecting an adoptive family for a Black child, race does not have to be determinative, but it should be a consideration. The racial and cultural mix of the family's community will determine if the child's status is a “source of visible difference or not,” which will impact the child's sense of self and identity. The adoptive family must demonstrate an awareness, sensitivity, and commitment to the raising of a transracially adopted child.

In 2020, the combined unjust killings of Black people and the global pandemic reignited a social calling to transform and reorient this country into one that ensures equity and justice for all. A calling has risen to form a society that consciously fights against racism not only institutionally but also individually, which at its most intimate level is within the family. Efforts to make transracial adoption more widely understood and accepted are underway, and society must take personal responsibility for embracing the various forms of today's modern families.


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