Perfect Substitutes or the Real Thing?
Perfect Substitutes or the Real Thing? traces the development of adoption law, using recent scholarship in history and sociology as well as nineteenth century legal sources. Contentious issues involving the formation and recognition of same-sex families, the respect to be accorded single-parent and stepparent families, and the implications of the new reproductive technologies reprise nineteenth century attempts to manage "artificial" families. The early history of American adoption provides a novel and useful context to analyze the complicated relationships between "traditional" and "alternative" family forms. Many legal scholars ascribe the origins of modern adoption to the enactment of an 1851 statute in Massachusetts that was a radical rupture of existing law. Contrary to the claims of other scholars, I emphasize the continuity of adoption law with cultural and legal norms, showing how the law reacted to changes in family status, rather than revolutionizing the family. The article discusses how judicial interpretations of the meaning of adoption were cabined by the traditional significance of blood relationships, examining the treatment of adopted and biological children in three contexts: parental consent to adoption, inheritance, and the civil and criminal laws governing incest. Historical dilemmas faced by adoptees show that the law did matter to family formation and functioning, much as the law matters today for relationships at the boundary of the law, such as single parent families, cohabitants, and gay and lesbian families. Finally, the article argues that the challenge today, as was true more than a century ago, is how to expand the meaning of family without destabilizing families. The contemporary debates on adoptive, single parent, and gay and lesbian families, as well as on the rights within families formed by new reproductive technologies, are grounded in this history; but the history also provides critical insights for structuring the legal response to these newly forming families. The article concludes by examining post-adoption grandparent visitation disputes (if the law permits grandparent visitation in the first place, then pre-adoptive grandparents should have the same rights once an adoption has occurred); single parents by choice, and gay and lesbian second parents. Don't let form fool you, I argue - treat like relationships similarly while respecting and accommodating the differences.
Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 Duke L.J. 1077 (2006).