Assisted Reproduction in an Era of Polarization: An Institutional Examination of Why Adoption may be the New Battleground for the Recognition of Partnership

To understand the relationship between adoption and assisted reproduction, it is important to think of adoption as a consumer institution whose product is the imprimatur of the state. Many focus on which parents the states should recognize, and acknowledge that for those parental relationships the state will not countenance, adoption is irrelevant. But the significance of adoption also disappears if biological or prospective parents chose not to invoke it. Adoption will therefore contribute most to assisted reproduction in those arenas where the state is willing to confer, and prospective parents will go to some lengths to secure state approval for their families. I predict that for assisted reproduction, this means that the most important looming conflicts are likely to involve the use of adoption to recognize unmarried parental partners. While much of the debate about the importance of adoption to assisted reproduction has focused on the supply side, viz., the desirability of state action, that debate overlooks the other half of the issue - consumer demand. The adult participants in assisted reproduction, who have more options, wealth and sophistication than many of those involved in traditional adoptions, can arrange the birth of the child and the effective termination of the parental status of the genetic parents without state involvement. Once they do, the intended parents, who often desperately want the child, may be the only interested participants prepared to care for her. In some cases, the intended parents may want the imprimatur of the state on their transactions; in other cases, they may strongly prefer private arrangements that conceal the child's origins, and in other cases still, the state would not approve the adoption if given the opportunity to pass judgment. Given the ability of intended parents to circumvent inconvenient adoption procedures, and the unpalatable options available to the state if they do (taking a ten year old away from the only parents he has even known?), the willingness to invoke adoption procedures is essential to their success. In considering the contribution of adoption to the determination of parentage in the context of assisted reproduction, the paper will argue, first, that the role of adoption depends on the background law of parentage. Second, it will contend that an essential element of that background law is the changing meaning of family privacy. Family privacy is a concept of relatively recent origin. It initially treated the married, heterosexual household as a privileged sphere, entitled to deference and a presumption of regularity. With the advent of more effective contraception, the legalization of abortion, and societal changes, it may now extend to a broad range of intimate relationships, which are neither approved nor prohibited. Third, it will examine how assisted reproductive practices have developed from experimentation, to treatment for infertility, to the construction of families of choice. Fourth, it will describe the circumstances in which the state has historically intervened to supervise and sanction adoption. In doing so, it will note that while legislatures often have political difficulty authorizing controversial adoptions in the abstract, courts deciding individual cases are more likely to construe broadly worded statutes to favor recognition of existing families. Fifth, it will ask when and whether prospective parents are likely to want to the sanction of the state that comes with adoption. Finally, the paper will conclude that adoption is most likely to be employed in the context of assisted reproduction, not to protect the interests of children, but to secure recognition of otherwise unsanctioned adult relationships. In a polarized era of family values, the seemingly neutral arena of adoption may offer the best prospects for legal recognition of controversial relationships. The irony is that the most public of practices is most likely to be employed where its principal purpose is to advance the autonomy of adults, and secure an otherwise unavailable zone of privacy.