Adoption and Surrogacy

So, last time I gave readers the numbers on adoption and surrogacy in the context of overall births (and alternatives) in Australia. They were horrific - 17 adoptions compared to 80,000 abortions, and 84 acts of surrogacy compared to 20,000 IVF births.

I have always been a fan of adoption. Adoption is often promoted as an alternative to abortion: and I regard such alternatives as very good things.

Plus, there are many people out there who want children, but can’t have them. Adoption lets them have a child and gives the child a life it may not have had otherwise.

The alternative - that a mother who doesn’t want the child, or who is not in a position to raise it, is forced to do just that - might easily lead to her (or the father) taking out their resentment, or lack of parenting skills, or frustration from being overwhelmed, on the child.

So adoption allows the unwilling or unprepared parent to move on with their life - without the haunting guilt of having aborted the child - and allows the adopting parents, who cannot conceive for whatever reason, to have their dreamt-of family. Everybody wins.

Clearly it is better for children to grow up with parents who want them, than parent(s) who are forced to raise them when they may not want to or be able to effectively do so.

Well, that was how I always thought. But then I posted this article, and one of the commenters told us his personal horror story of being given up for adoption, and I questioned that assumption. The commenter, Tim, directed me to this author, Dr Barbara Sumner, who examines both the people impacted by adoption and the research around it, and she gave me a number of things to think about. I particular recommend this article. Sumner writes:

When adopted people seek access to their own original birth records, or attempt to make contact with biological relatives, they are often cast in public and legal discourse as potential stalkers or as threats to the stability of biological families.

This trope requires a remarkable inversion of logic: the person seeking their own history is positioned as the aggressor, while the systems that sealed that history are positioned as protective.

This reflects and reinforces a hierarchy in which the privacy interests of biological parents who relinquished, and, significantly, the comfort of adoptive families, are weighted above the adopted person’s right to know their own origins.

Legislation in numerous jurisdictions has historically been framed around this concern, restricting adopted adults’ access to records that non-adopted people access as a matter of course.

Dr Sumner also gives us the all-too-familiar warning that there is nowhere near enough research going on: in her native New Zealand, no longitudinal studies have been done whatsoever. She references this study published March this year, that begins with the following sobering abstract.

Adoptees and first mothers are significantly more likely to attempt suicide (35 times and 37.7 times, respectively), abuse alcohol, display hypersexual behaviors, and restrict their eating compared to their peers: While first mothers have a lower life expectancy and are more likely to die by suicide than women who did not lose their children to adoption, adoptees frequently struggle with their identity and sense of belonging. They expressed experiencing trauma from their separation from their first mothers, regardless of the quality of their adoptive parents.

‘First mother’ means biological mother. The study is far from perfect, focussing on female adopted children, and only including 7 fathers, plus other limitations like self-reporting (a problem the authors acknowledge) and limited control for confounders, but it is a reasonable sample size using a vetted (if novel) method that effectively conveys the distress of those interviewed, though not the prevalence of the findings.

I went digging and found a handful of meta-analyses and literature reviews that seem to confirm that, even broadening our scope to worldwide, longitudinal studies are in the dozens, not the thousands other disciplines generate. The studies I looked at were a systematic review from Cambridge, a mini-review from Spain, a British Chinese adoption review, another British literature review, and a German longitudinal study.

The findings of these show a more complex picture. Many of the negatives are replicated - behavioural issues, attachment problems, impacted cognitive development among others. But most importantly, when compared to alternatives like foster care and institutionalisation, there are positive results. For instance, the Cambridge systematic review says

More recent systematic reviews confirm that adoptees outperform children who remain in institutional care on measures of IQ, academic achievement, socioemotional and behavioral functioning, underscoring the protective role of adoption.

But this same study also acknowledges a higher risk of suicide as Sumner references, and says:

…adoptees tend to underperform academically compared to children raised by their biological families, and are disproportionately represented among students experiencing learning difficulties, repeating grades, or requiring special educational support.

The phrase that occurs over and over is, peculiarly, “catch-up” - children taken from parents or put up for adoption are starting out with a recognised disadvantage, but when adopted by a loving family they can often “catch up” and adjust long-term. This highlights the problem: when we compare adoptees to children raised by their own parents, they “underperform” - and let me assure you, I do not mean that as a judgment - but when we compare them to children raised in the system, adoptees tend to have better outcomes.

This leads us to a tentative conclusion of, “well, adoptees have lots of reasons to be messed up, but it could be worse…”

Exactly the sort of thinking that Sumner effectively critiques.

There are, of course, a variety of variables - who does the adoption, the age of and experience of the child before adoption (almost invariably traumatic or, to use the academic language, “preadoptive adversity”), and the manner of intervention. The study Sumner references leans heavily into children “given up” or even “taken” at birth in situations where the mother felt pressured, and this is Sumner’s particular focus: people, like herself, who were raised by a non-biological family due to being “given up” or removed in early life. The trauma such children may experience is understandable: where a child was adopted precisely because their homelife featured abuse and neglect, there is strong evidence that the child will struggle even with “good” adoptive parents. Yet the German study I cited shows the figures around international adoptees buck this trend. This may be a good thing or a bad thing, depending on your personal view of childless westerners “rescuing” underprivileged foreign children.

So let’s look at the human rights of these children.

Sumner speaks at length about the legal fiction of ignoring birth parents in favour of adoptive parents on the birth certificate, an issue also facing surrogates - the surrogate parent is the parent until the court says otherwise. I would include trans people: a trans man who gestates and births a baby may identify as the baby’s father throughout their lives - but on the birth certificate, that is the mother. This article in The Conversation bemoans a famous British court case that upheld this, and suggests there may have been around four and a half thousand other similar moments.

The birth certificate is the child’s identity document. A woman may be the only “mum” the child will ever know, a man may be the person the child calls “daddy”, and they may well adopt the child or have legal standing as such: but it is the biological parents who should go on the birth certificate, because they are responsible for the child’s birth.

Let me say again - the birth certificate should provide accurate information for the child, not validation for any adult.

The identity issues around falsifying simple facts on a birth certificate are arguably compounded in this current generation by the many identity issues our children struggle with due to being encouraged to question rather than understand their identities - particularly during their transitional teenage years. The literature I quoted above explores this, and there are various mainstream media articles which point out that children regularly end up distressed or deprived when some element of their identity is kept from them. They often focus on cultural identity - often legitimately - but there are many other examples, such as this article. In it, an adoptee tells the story of how her adoptive mother answered every question honestly, but didn’t volunteer crucial information: with the result that she never found out about her siblings during her entire childhood.

She says, “We have always been family. But the years we lost as sisters as we grew up separately cannot be replaced.”

The facts of her identity were replaced, not with falsehoods, but simply with silence.

As well as identity issues we also have to consider the health implications. Knowing your genetic history becomes more essential every day: like it or hate it, the future of medicine is genetic. mRNA vaccines, CRISPR, genetic profiling (finally banned for insurers) - we may not approve, but we cannot pretend it isn’t so. On top of this are the common-sense things. Awareness of a background of breast cancer or early-onset prostate cancer or bowel cancer or Huntington’s or schizophrenia or a hundred other diseases with a genetic component is important: as is knowing you are a carrier of cystic fibrosis or muscular dystrophy or spinal muscular atrophy. Children born from donor sperm or egg are also affected by these issues.

Finally, we have the legal perspective. Adoption, and even surrogacy (of sorts) have been recognised for thousands of years: the Roman practice of using adult adoption as a means of securing succession or shoring up alliances comes to mind. But long before that we have the story of Ishmael in Gen 16 - Sarai, wife of Abram (later Abraham and Sarah), unable to have children thus far, gives her maidservant Hagar to Abram to produce a surrogate child which will be Sarai’s. What sounds like a simple expediency is revealed, in both the Nuzi tablets and the Code of Hammurabi, to be a recognised legal practice.

The problem, of course, is that the rationale is based in ownership. The maidservant, and her child, are the property of the woman, and if the woman conceives a child of her own the surrogate child is then dispossessed, as happened to Ishmael when Isaac was born.

A child should not be viewed as property, any more than a woman. Modern approaches to adoption and surrogacy are therefore public law, not private contractual arrangements. This means, among other things, that men - single, gay or whoever - cannot enter into private arrangements with women to pay them for surrogacy services. I mention this purely because women have sperm banks readily available to them to assist with conception if there is no man in the picture. The two situations are not comparable in practice - the 5 minutes it takes to make a donation to a sperm bank can hardly be compared to the 9 months a pregnancy lasts - but since both are services designed for people who cannot conceive through the traditional manner, they are not unrelated.

From the child’s perspective, neither is a good thing. Sarah Dingle’s book Brave New Humans details her struggles and those of many others on finding out they are conceived from sperm donors who may not wish to be contacted, leaving a gulf in that person’s life.

Children are not property to be traded. But the law around adoption and surrogacy operates to allow this. Adoption is the state legally transferring parenthood - the child’s consent is irrelevant.

Sections 61B, 63C & D and 65C of the Family Law act define parental responsibility as a legal status not a property right, and can only be changed by court order. For this reason, surrogacy agreements do not constitute a legal change of parenthood - the court must still become involved. Proponents argue you are paying for the service, not the child, since the surrogate is paid even if the child dies; and 80% of embryos do not survive the IVF procedure.

But parenthood can still be changed by the court, as surely as if you wrote a bill of sale. For the child, the outcome is the same. As surrogacy laws are relaxed (something the Australian Law Reform Commission are reporting on, due next month) then the potential commodification of the child can only increase. This is the point advocates like Sumner come back to: we can develop new legal language, but the child loses their contact with their biological parents, and has a new identity manufactured for them by the court. Sometimes, this will protect them. Sometimes, it will simply uproot them.

So what do we do? Under the UN’s Convention on the Rights of the Child, children have a human right to a legal status, and that decisions made regarding them have to be in their best interest, not those of a childless woman, couple, or even a surrogate. But this is not consistently happening: stories of stateless surrogate children abound, where the child’s needs and indeed rights are ignored.

Yet there have always been tragedies where a child loses their parent(s) and requires someone else to step up and raise them, someone who should be legally recognised as having parental responsibility.

We call these children “orphans”. We define them by their loss, and we recognise that even if someone loving steps up and does a wonderful job raising them - potentially better than their own parent(s) would have - the loss persists. The tragedy is not forgotten or magically erased. They will always have lost their parent(s).

Is this not true for every child raised by someone other than their mother and father?

My commenter Tim suggested in a thoughtful post:

Legal guardianship, preferably by a relative, with support from the State. Every effort should be made to maintain the maternal-child relationship (and paternal-child relationship) and help the mother/father deal with the issues that preclude them from parenting their child.

This is entirely reasonable and, to my understanding, one way being used to address the errors of the stolen generation - if indigenous children have to be removed, make sure they go to family. This is both common sense and the recommendation of experts. But one takeaway of the discourse around the death of Kumanjiyi Little Baby is that it happens in less than half of cases. It’s called Kinship Placement, and the concern is that the current NT government is weakening these principles, on the grounds that they don’t prioritise safety. Safety is desirable, but if common-sense principles of “put the child with family” aren’t being observed for our most high-profile and injurious situations of child removal, in the wake of the stolen generation, does it surprise us that they are not being adopted in other situations?

And men will know full well that the argument of, “the child shouldn’t get to see their family because of safety concerns” has been misused for generations.

The issues of adoption and surrogacy are complex and challenging, but if we are truly concerned about the best interests of our children, we need to ensure that all practices surrounding these issues support and promote this principle.