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The Establishment of Maternity & Paternity in Jewish and American Law
Michael J. Broyde

IV. Adoption and Establishing Parental Status

A. Jewish Law

Although the institution of adoption, through its widespread use in Roman law,220 was well known in talmudic times, the codifiers of Jewish law denied that Jewish law recognized an institution of "adoption." Rather, they created the institution which they called "A person Who Raises Another's Child."221 Unlike either Roman law or current adoption law, this institution does not change the legal parents of the person whose custody has changed.222 One who raises another's child is an agent of the natural parent; and like any agency rule in Jewish law,223 if the agent fails to accomplish the task delegated, the obligation reverts to the principal. Thus, the biblical obligations, duties and prohibitions of parenthood still apply between the natural parents and the child whose custody they no longer have.224

Conversely, one who raises another's child does not assume the biblical prohibitions associated with having a child of one's own. For example, regardless of who is currently raising the child, it is never permitted for a natural parent to marry his or her child; on the other hand, the assumption of custody cannot raise to a biblical level the prohibition of incest between a parent and the adopted child.225 Furthermore, the Talmud explicitly discusses whether or not adopted children raised in the same home may marry each other, and concludes that such marriages are permitted.226 One medieval authority, Rabbi Judah of Regensberg, decreed that such marriages not be performed.227 This decree has not been generally accepted.228 Although legally permitted, few such marriages are actually performed.

On the other hand, certain non-biblical aspects of parenthood created by the rabbis have been connected to custody rather than parenthood. For example, in talmudic times it was decreed that the possessions, earnings, and findings of a minor child belong to his father.229 Although the wording of the Talmud refers only to father, it is clear from later discussions that this law applies to anyone who supports the child, i.e. adopting parents.230 The reason for the rabbinic decree is that it was equitable that one who supports a child should get the earnings of that child.231 Thus, a financially independent minor does not transfer his income to his parents.232 Similarly, the earnings of an adopted child go to his adopted parents since the rationale for the decree applies equally well to adopted and biological children.233

Other examples of adopted parents being treated as natural parents can be found in the area of ritual law. For example, while the rabbis prohibited two unrelated unmarried people of the opposite sex from rooming together alone, (in Hebrew, the laws of yichud);234 it is argued that these rules do not apply in the adoption scenario. Although some commentators disagree,235 most maintain that it is permissible for an adopted child to room and live with his adopted family236 notwithstanding the prima facie violations of the prohibition of isolation.237 As one commentator noted, without this lenient rule, the institution of raising another's child would disappear.238 Another example of a change in the ritual law due to the adoption of a child is the lack of obligation to recite the mourner's prayer (kaddish) upon the death of one's natural parents and the incumbent obligation to mourn upon the death of one's adopted parents.239 This is so because the institution of mourning as we know it is totally rabbinic in nature.240 Numerous other examples exist of rabbinic institutions that are not strictly applied in the context of raising another's child since Jewish law would like to encourage this activity.241

Notwithstanding the high praise the law showers on a person who raises another's child,242 it is critical to realize that the institution of "adoption" in Jewish Law is radically different from the adoption law of American jurisdictions. In Jewish law adoption operates on an agency theory. The natural parents are always the parents; the adopted parents never are. While a number of incidental areas of parental rights are associated with custody and not natural parenthood, they are the exception and not the law. In the main, Jewish law focuses entirely on natural relationships to establish parental rights and duties.

B. American Law

Although it is commonly thought that adoption is a relatively recent phenomenon, it is not so. Adoption was recognized in the Babylonian Code of Hamurabi243 four thousand years ago, and was regulated in the ancient Greek, Egyptian, and Roman civilizations.244 It is true, however, that the main purpose of adoption has shifted dramatically from the ancient goal of insuring the continuity of a family lines to the current goal of providing complete family lives to both orphaned children and childless couples. Nonetheless, the institution of adoption, complete with its problems, is ancient.

On a more recent historical level, adoption in the United States is one of the few areas of the law where common law had no influence, as English common law rejected in toto the institution of adoption.245 The first public adoption statute in America was enacted in 1851 in Massachusetts.246 This statute rendered what had previously been private unsupervised adoptions into judicially regulated transfers of custody. Before the passage of the Massachusetts Act, adoption had been a "private legal act, like a conveyance of real estate or a commercial contractual transaction."247 However, even before the Massachusetts statute was passed, most states systematically recognized adoption as valid grounds for a petition to change one's name as well as one's family associations.248 Thus, adoption law in America from its legal inception rejected Jewish law's analysis of adoption as a type of agency, and accepted the Roman model of the legal change in the parenthood of the child.249 As with Roman law, such a change was apparently total and complete, virtually stripping the child of his prior identity.

Between 1860 and the end of World War II, all states passed adoption and child welfare acts which closely scrutinized requests for adoption.250 Typically, there were five requirements necessary to adopt. The first was the consent of the birth parent or guardian. This was done in order to insure that parental ties were not broken improperly or due to duress. The second was that a social study or investigation be conducted by the court or the adoption agency to determine if the adoptive parents would provide a suitable environment for the child. The third requirement was a trial period in the adoptive home under court or agency supervision. The fourth was that the court issue a final decree establishing that the adoptive parents had adopted the child. The fifth was the secrecy of the legal proceedings, and the provision for the alteration of the child's birth certificate. As one commentator noted, "Adoption laws were designed to imitate nature."251 They were intended to put children in an environment where one could not determine that they had been adopted; even the children themselves many times did not know. The law reflected this, and severed all parental rights and duties with an adopted child's natural parents and reestablished them in total with an adoptive parents, as per the Roman model of adoption law.

In the last thirty years major changes have occurred in adoption law in the various states.252 One of the most significant changes has been the realization that adoption, like many other areas of law, takes place in an adversarial proceeding. This scenario can pit the parents putting the child up for adoption against the parents who would like to adopt the child. This is well reflected in the American Bar Association's Family Law formal statement in 1964 acknowledging that it was unethical for an attorney to represent both the adopting and relinquishing parents in an adoption case,253 just as it was unethical for an attorney to represent both sides in any other dispute.254 This conflict of interest was well noted by one commentator who stated that the adoption laws have been torn asunder because they reflect a need to "promote the best interest of adoptive children on one hand and to protect the rights of their natural and adoptive parents on the other hand."255

This tension between the newly perceived rights of the parent and the previously well established attempts to model adoption laws only after the best interests of the child, has changed adoption law. From its earlier model of attempting to recreate a new family unit for an adopted child, one in which the child could not determine if he was adopted, and one in which the law prescribed all parental rights to his adoptive parents, it metamorphosed into a system of balancing rights between the various parties in an adoption -- almost insuring that a child is at least aware of the fact that he is adopted.

The United States Supreme Court in Stanley v. Illinois, 256 added constitutional impetus to the modernization of adoption law by recognizing a right to procedural due process when stripping a parent of his or her parental rights. Until this case, it was assumed that the father of an illegitimate child had no legal rights towards that child and could not protest the mother's placing of the child up for adoption. Nor was it clear until this case that any parent giving up a child was entitled to constitutional protections. In Stanley, the Supreme Court recognized the due process of the unwed father and, by implication, all other parents. Immediately after Stanley, nearly half of the states changed their adoption laws to reflect the new rights of the parents.257 Other states took a broader view of Stanley, establishing that the unwed mother and father enjoy equal rights just as a married couple.258 Stanley provided yet another impetus for the opening up of adoption law and moving away from the highly secretive model of the last one hundred years. By mandating court hearings and simple due process, the highly secretive adoptions of yesteryear became an impracticality.

Another equally significant change in the adoption practice occurred during the controversy over the ability or propriety of a state to seal its adoption records - an issue which goes to the very heart of the current American approach to adoption.259 If adoption records cannot or should not be sealed, then it is beyond the state's power to create an adoption system which effectively mimics the creation of a new parental unit, since the children will become aware of the fact that they have biological parents separate from their adoptive parents. Historically, almost all states sealed adoption records and provided virtually no access.260 The original birth records are sealed, and if, by coincidence, the adopted child was to meet and marry a natural sibling, the state would permit such a marriage since there is no legal relationship with his natural family.

The "right to know" controversy has resulted in a number of states granting adoptees (upon attaining their majority) access to all the information collected.261 Once children have a right to know who their natural parents are, the adoption law must reflect the dichotomous relationship between one's natural parents and one's adoptive parents.262 These tensions have not yet been resolved in American law. Most states still ascribe to adoption law the ability to totally recreate maternal and paternal relationships notwithstanding the knowledge of one's biological parents. Along with their ability to completely recreate maternal and paternal relationships, states also maintain the ability to legally destroy any such relationships. It is well within the power of the state to not only create new parental rights and duties, but also to remove the rights of a parent towards its child; this is true not only for the rights towards the child, but also for the duties of a parent to a child.

C. Comparison and Summary

This policy disagreement reflects a fundamental difference between American and Jewish law. Jewish law denies to a governing body the ability to destroy essential parental relationships created at birth. American jurisprudence grants itself that power; the law can artificially create parental relationships in the best interest of the child. It can also destroy natural ones for the same reason.

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