In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl
2015; Fredric G. Levin College of Law; Volume: 67; Issue: 1 Linguagem: Inglês
ISSN
1045-4241
Autores Tópico(s)Reproductive Health and Technologies
ResumoOn June 25, 2013, the Supreme Court decided Adoptive Couple v. Baby Girl, holding that the Indian Child Welfare Act did not permit the Cherokee father in that case to object to termination of his parental rights. The case was ostensibly about a dispute between prospective adoptive parents and a biological father. But this Article demonstrates that it was about a lot more than that. It was a microcosm of anxieties about Indianness, race, and the changing nature of parenthood. While made in the name of the child, moreover, the decision supports practices and policies that do not forward and may even undermine children’s interests. Drawing on published and unpublished court records and testimony, this Article reveals that the Court’s portrayal of the facts of the case was wrong. Instead of a deadbeat dad acting as a spoiler in the adoption of the daughter he had abandoned, the birth father sought to parent his daughter from the moment he learned his fiancee was pregnant. He was initially prevented from learning of the adoption plan by the actions of the other parties and their attorneys. The decision distorted the law as well, doing violence to long-accepted interpretations of the statute at issue. Why did the Court mischaracterize the facts and the law? This Article examines the narratives of the interests of the child, racial color-blindness, and even women’s rights that surrounded the case to reveal that the decision in fact rested on racialization and colonialism of Indian people, condemnation of poor single mothers, economic interests of private adoption facilitators, and the class divides in modern paths to parenthood. INTRODUCTION 296 I. FIXING THE FACTS, EXPLAINING THE LAW 300 A. Facts 301 B. The Legal Battle 310 II. THE BEST INTERESTS OF THE CHILD? 319 * Thomas F. Gallivan Jr. Professor, University of Connecticut School of Law. Thanks to Jon Bauer, Kristen Carpenter, Paul Chill, Anne Dailey, Kathryn Fort, Alexandra Lahav, Solangel Maldonado, Hugh McGill, Chrissi Nimmo, James Stark, Gerald Torres, and Colette Routel; to participants at presentations at the American Association of Law Schools Annual Conference, the Stanford Law School Native American Law Students Association Conference, and the University of Connecticut School of Law; and to the Tribal Relations Committee of the Conference of Chief Justices of State Supreme Courts. 1 Berger: In the Name of the Child: Race, Gender, and Economics in Adop Published by UF Law Scholarship Repository, 2016 296 FLORIDA LAW REVIEW [Vol. 67 III. 3/256THS: DISTORTIONS OF RACE IN THE NAME OF EQUALITY 325 A. The Making of a Meme 326 B. Disputing the “Undisputed” 327 C. Settler Colonialism for a Modern Era 329 D. Equal Protection Evasions 333 IV. MARGINALIZING MOTHERS 336 A. The Rise and Fall of Constitutional Rights of Unmarried Fathers 336 B. Links Between Denigration of Unmarried Fathers and Condemnation of Poor Single Mothers 343 V. ECONOMICS 350 A. State Interests 350 B. Adoption Industry Interests 353 C. Class and Paths to Parenthood 356 CONCLUSION 360
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