What makes a parent? Should the answer be determined by biology or nurture? And what about the overlay of race or ethnicity--should that play into the mix? The U.S. Supreme Court is tussling with these thorny questions in a case involving the adoption of a little girl and the Indian Child Welfare Act, a law enacted by Congress 35 years ago which was intended to halt the inexcusably high rates of removal of Native American children from their families in favor of placement with white adoptive and foster parents.
As in all adoption disputes, the facts in Adoptive Couple v. Baby Girl, argued before the Supreme Court on April 16th, are heart-wrenching. The father, who has some Cherokee heritage but does not live on a reservation, broke off his engagement to a non-Indian woman after she became pregnant. Following his daughter’s birth, he refused to provide any support for her, and eventually texted the mom (texted!) that he wanted to give up his parental rights. She then put the baby up for adoption. After learning about it, the father filed an action challenging the adoption--he said he thought he had only given up his rights to the mother--and seeking custody of the child.
Based on the ICWA, a family court in South Carolina ordered the adoptive parents, who had raised the girl, now known as Veronica, from birth until she was 27 months old, to transfer custody to the father. This decision was upheld by the South Carolina Supreme Court on the grounds that, once established as the biological father, the ICWA gives preference to the Indian parent.
The adoptive parents’ lawyer argued that applying ICWA to this case would amount to “conscripting other people's children to grow the tribal population based solely on a biological link." And furthermore, she pointed out, such a ruling will apply to other absentee Indian fathers who have impregnated non-Indian women, rendering those women second-class citizens with inferior rights and "basically relegating the child ... to a piece of property with a sign that says 'Indian, keep off, do not disturb.' "
The father’s lawyer simply argued the statute, saying that under the ICWA an adoption cannot go forward if a biological parent wants custody and is not a threat to the emotional or physical safety of the child. In other words, the “best interest of the child” analysis does not apply; rather, if there’s no risk of harm, the Indian parent will prevail.
Seems to me that accepting the father’s arguments in this case does create a class of people who have superior rights to custody of children based solely on their race. And while I am mindful of the shameful history of destruction of the Indian family and the corresponding loss of tribal culture and identity, I really cannot get past this. Using race as the trump card in adoption--rather than as one factor among many to be considered--is a problem, both conceptually and constitutionally. Interestingly, it also bucks the contemporary trend in family law, which is moving away from the primacy of biology in favor of legal recognition of the important bonds that form between children and the adults who are actually taking care of them despite the absence of a genetic link - such as the the same-sex partner or the step-parent.
That’s the legal dilemma. But what about Baby Girl Veronica? Now that she’s been removed from her adoptive parents into her biological father’s family, even if we think that was a bad call, should she be moved back? That might bring justice to the grieving adoptive parents, but is it fair to Veronica?
During oral argument, Justice Kennedy apparently wished for the wisdom of King Solomon. Not a surprising request, under the circumstances. Let’s hope The Nine receive it during their deliberations.