Today, adoption is back in the news, especially at the Supreme Court Dobbs Decision that ended the legal right to abortion. In fact, the adoption debate has long been intertwined with the abortion debate. Conservatives have positioned adoption as a bipartisan common priority. Democrats also welcomed adoption to support children who needed homes – but also keen to promote an uncontroversial “answer” to the abortion problem.
But this focus on adoption has jeopardized the rights of parents. With the passage of ASFA and a renewed focus on child welfare, more children have been removed from their homes of origin and placed permanently in new homes. ASFA, as many legal scholars and activists have argued, has destabilized families and communities, with poor families and families of color often causing the greatest harm. A broad coalition of policymakers and child advocates have taken the key views of anti-abortion, pro-adoption activists, sidestepped unpopular discussions about how to effectively fight poverty and addiction, and created a system that devalues families.
In the 1970s, increased reporting requirements and expanded definitions of abuse meant that increasing numbers of children were quickly removed from their homes and placed in foster care, where they were often abused. The process was expensive, inefficient, and often dangerous for children.
The Adoption Assistance and Child Welfare Act (AACWA) of 1980 was designed to reduce the number of children placed in foster care by providing family preservation efforts at the front end of the system and adoption support at the back end. Nursing roles only went back briefly. The implementation was particularly tricky. As the Reagan administration cut funding for family welfare programs in the mid-1980s and turned its attention to the drug wars, child removals increased and support for family preservation efforts dwindled. Opponents of family preservation argued it had been tried and failed.
In the 1990s, the Clinton administration passed Republican-inspired labor requirements for welfare eligibility, sparking debates about the fate of children in struggling families. Infamously, Newt Gingrich (R-Ga.), the home’s Minority Whip at the time, suggested in 1994 that some children of poor mothers would be better off in orphanages, indicating that institutional care would be an important part of welfare reform. The Republican idea of removing children from poor families would be softened by focus group-tested words and help lay the groundwork for ASFA’s passage.
Adoption advocates seized the moment as an opportunity. The National Council for Adoption (NCFA), a powerful advocacy organization often referred to as the “trade association” for private adoption agencies, worked to expand support for adoption as an important part of the child welfare system. Between 1993 and 1995, the NCFA co-organized a series of conferences highlighting adoption as a solution to the nursing crisis. This was a clear departure from previous approaches that emphasized family preservation as the goal for child welfare interventions. The NCFA presented these conferences explicitly as a response to Republican policy goals as articulated in the 1994 “Treaty with America” and ongoing debates over orphanages and adoption.
NCFA Vice President for Policy Carol (Cassie) Statuto-Bevin testified on behalf of the NCFA and shared the main recommendations of the conference at congressional hearings on child welfare in February 1995. She then became the senior congressional staffer for ASFA and the main forces in developing the House version of ASFA legislation and popularizing an adoption-centric view of child welfare.
Thus, key components of ASFA began with a draft of Republican policy priorities, developed into jargon by child protection experts, published in a report by Statuto-Bevin, and then endorsed by bipartisan lawmakers and a Democratic president.
Adoption became a key priority for the Clinton administration. In 1996, Clinton announced his Adoption 2002 plan to double the number of children adopted from the public child welfare system by 2002. Clinton also welcomed adoption tax credits, which had been a Republican priority in the “Treaty with America.” First Lady Hillary Clinton, a staunch advocate for child protection, zealously supported adoption initiatives and clearly stated, “Rather than yelling at each other about abortion, let’s focus our energies on making adoption easier.”
Many of those who helped get ASFA passed were passionate advocates for children. Some were appalled at how long children waited in foster care, how they were shuffled between placements and sometimes abused or neglected. Many felt adoption was a positive solution, especially for children already removed from their homes and in need of care.
But without considering the children’s biological parents—and without their testimony in interviews—parents were portrayed as expendable obstacles to adoption rather than important partners in the care of children.
Only one Democrat voted against the House of Representatives bill creating ASFA. Rep. Patsy Mink pointed out that Clinton’s 1996 welfare reform would clash with ASFA and put many more children at risk of being removed from their families. Without a solid social safety net, she warned, more families would become impoverished, and child welfare services would then be forced to remove these children and place them in foster care. Mink warned that it was unfair “for the national government to make adoption a punishment because of parental poverty.”
But ASFA became law – and had elements that did just that. It called on states to move towards ending parental rights if children have spent 15 of the previous 22 months in care outside the home, regardless of whether child abuse or neglect had even occurred. The schedule was an arbitrary compromise between lawmakers, with dire consequences for families. Contemporary memos indicate that ASFA was specifically designed to place the responsibility on states to justify why they did so Not terminate parental rights.
A quarter of a century later, the impact of ASFA is clear. Parents, mostly black, the poor, and many struggling with addiction, have experienced the ultimate loss, or what proponents have dubbed the “civil death penalty”: the permanent severing of legal ties with their children. The time limits for termination are inconsistent with what is currently known about addiction and give parents no opportunity for redress.
ASFA increased the number of adoptions from foster care, but did not address the main reasons why children end up in foster care – a system that blames parents for their struggles and offers few material resources and support. Deprivation of parental rights is practically the order of the day; One in 100 children will experience this parental loss. It also created an unknown number of legal orphans: children who, due to the cessation of parental rights, were left without parents, but neither had been adopted and might never become so.
ASFA has become a key component of a system that disproportionately targets poor families and families of color, leading to over-investigation, child abduction, foster care and the termination of parental rights – what proponents call the family policing system.
It is imperative to remember the origins of the bill and to recognize that it was intended to serve an anti-abortion and anti-adoption political agenda supported by private adoption agencies and encouraged by federal subsidies for adoption. These interventions have caused real harm to families and children. On this anniversary of ASFA, we should break free from outdated notions of creating “new families” for children and instead work vigilantly to support communities and families where all children can thrive.