INRS Urbanisation, Culture et Société November Plenary Legal Adoption and Its Implication for the Adopted Child - PDF

Plenary Legal Adoption and Its Implication for the Adopted Child Françoise-Romaine OUELLETTE INRS Urbanisation, Culture et Société November 2003 Inédits / Working paper, n o Plenary Legal Adoption

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Plenary Legal Adoption and Its Implication for the Adopted Child Françoise-Romaine OUELLETTE INRS Urbanisation, Culture et Société November 2003 Inédits / Working paper, n o Plenary Legal Adoption and its Implications for the Adopted Child Françoise-Romaine Ouellette Téléphone : Centre Urbanisation Culture Société Institut national de la recherche scientifique 385 Sherbrooke Est Montréal (Québec) H2X 1E3 Canada Working Paper November 2003 Abstract By permanently severing all links between the child and its family of origin, plenary adoption gives those who adopt exclusive parental status. The present paper questions the implications of this legislative approach, which, it points out, imposes a radical change of identity on the child. Taking the province of Quebec (Canada) as an example, I note the main stages in the evolution of adoptees' legal status. I then describe the legislative and administrative framework of adoption in Quebec. I follow this up with a discussion of the main social practices currently associated with plenary adoption: stepparent adoption, adoption of a child placed in foster care, inter-country adoption. Finally, I briefly explain the paradox in identity formation generated by plenary adoption, and the strategies that adoptive parents employ when confronted with the question of their child's origins. Key words : adoption, inter-country adoption, kinship, identity, children s rights Résumé L adoption plénière rompant définitivement les liens de l enfant adopté avec sa famille d origine, elle confère aux adoptants un statut parental exclusif. Le présent article met en question ce choix législatif en soulignant qu il impose à l enfant adopté un changement d identité radical. À partir de l exemple du Québec (Canada), il retrace d abord l évolution du statut légal des adoptés. Puis, il précise l encadrement juridique et administratif de l adoption au Québec. Les principaux usages actuels de l adoption plénière sont ensuite discutés : l adoption de l enfant du conjoint, l adoption de l enfant placé en famille d accueil et l adoption internationale. Enfin, l article explique brièvement le paradoxe identitaire provoqué par l adoption plénière et les stratégies de contournement et d évitement de ce paradoxe par les parents adoptifs face à la question des origines de leur enfant adopté. Mots clés : adoption, adoption internationale, parenté, identité, droits des enfants Plenary Legal Adoption and its Implications for the Adopted Child Since 1990, Quebec has one of the highest rates of adoption per capita in the West (after the Scandinavian countries, Luxembourg and New Zealand) 1. Children of all ages and origins (in terms of nationality, ethnicity or culture) are being adopted by parents presenting a variety of profiles (married spouses, unmarried couples and single parents, some of whom already have biological children). As its causes, motivations and aims multiply, adoption is increasingly debated in the name of the best interests of the child. Of course, much attention is given to children s security and health. There is also complete agreement about protecting children against the risks of being treated as commodities. Formal regulations and clinical practices strongly defend these principles. The radical change of identity imposed on the adopted child should also call for ethical reflections. However, this would mean reconsidering the exclusivity of the adoptive parents rights. This paper stresses the fact that many children now channelled toward adoption are neither orphans nor newborns abandoned at birth. Nevertheless, the only form of legal adoption available in North America and in most countries of Europe erases the adopted child s original identity and kinship ties. The adopted child always becomes a complete stranger to its birth parents and family. I discuss this issue of plenary adoption using the case of Quebec as an example. First, I very briefly explain the legal status of adoption in Quebec 2. I follow this up with a discussion of the three main social practices currently associated with plenary adoption: stepparent adoption, adoption of a child placed in foster care and inter-country adoption. Finally, I briefly underline the paradox generated by plenary adoption, and the strategies that adoptive parents employ when they address the question of their child's origins. Adoption in Quebec: from marginality to exemplariness Legal adoption in Quebec dates back to At this time, adoption aimed to improve the benefits provided to orphans and to children born out of wedlock, many of whom were being abandoned in religious institutions (Collard 1988). In these early days, adoption did not grant the same rights to an adopted child as those accorded to a son or daughter born to a married couple. Most of the time, adoptees did not learn about their adoption until they had become adults; this revelation frequently occurred by accident and could be a traumatic event for them. The notion that adoption was a fictive kinship and the 1 2 In 1998, the rate of adoption per 100,000 inhabitants was 9.5 in Quebec (6.6 in the rest of Canada), 14.6 in Norway, 14.2 in Luxembourg, 11.8 in Sweden and 10.2 in New Zealand. France and the United States, often cited as the countries where international adoption is, in absolute terms, the highest (3,777 in France, and 15,774 in the United States), had rates of 6.4 and 5.8, respectively. (Source : Adopsjons forum Norway, for Euradopt and the Nordic Council of Adoption). Over the last ten years, I have conducted several studies on adoption, in particular with the principal Quebec social actors in this field : adoptive parents, inter-country adoption accredited agencies, associations of adoptive families, adoption services of governmental centres for child welfare (called youth centres), and professionals working for them or mandated by them. I obtained grants from the Social Sciences and Humanities Research Council of Canada, the Conseil québécois de la recherche sociale and the Department of Canadian Heritage. 2 Working Paper absence of role models for adoptive parents kept the adoptive families in a state of discomfort and marginality. Over the last thirty years, adoption has been positively reassessed. Following closely on the heels of the recognition of women's legal equality, all children gained access to equal rights, regardless of their birth circumstances. In 1969, adopted children in Quebec obtained the same rights with regard to their mothers and fathers as legitimate children. In 1980, the reform of family law gave them equal rights with regard to their grandparents and other adoptive relatives, especially when it came to issues of inheritance. Current family values no longer stigmatize either children born out of wedlock or these children's parents. Adoption is predominantly defined in terms of compensating for the infertility of adopting couples and/or for the deprivation of abandoned children. Starting in the 1970s, experts in the field of adoption encouraged adoptive families to openly recognise the difference between adoptive and biological kinship. In so doing, they promoted empathy between adoptive parents and their child by getting them to acknowledge the sense of loss they experience and the grieving that follows (Kirk, 1984; Brodzinsky et al., 1993). This openness was also favoured by international adoptions of Asian, West Indian and Latino- American children, which began during this decade on a very small scale 3. As a form of elective kinship tie 4 intended essentially to promote the well being of the child, adoption is no longer seen as a deviation from the norm. On the contrary, it is emerging as an exemplary form of parental project. In Quebec, it is now available to all adults, regardless of their marital status or sexual orientation. Under the terms of the Quebec Charter of Human Rights and Freedoms, every individual - married or not - can apply to adopt a child and have their request evaluated. Moreover, since June 2002, adoption by gay and lesbian couples is also authorized. Similarly, since the family environment is increasingly considered to be the only living environment suitable for a child, it is no longer only children formally abandoned by their parents who are deemed to benefit from adoption, but also all children whose parents do not take personal responsibility for their care, education and upkeep. The children who are currently adoptable thus constitute a highly diversified group; they have followed very varied paths, and do not all have the same needs, either in the short-or long-term. These developments in adoption imply a significant broadening in the scope of its application. Nevertheless, the statutory framework of adoption has not changed since the period when adoption was stigmatised and shrouded in secrecy. As noted previously, legal adoption in Quebec exists only in a 3 4 In Quebec, the inter-country adoption movement experienced marked growth only during the 1990s. However, other countries, principally the Netherlands, Scandinavia and the United States, have longer experience with comparatively large numbers of international adoptions. See the collective work by Agnès Fine (1998) on electivity in kinship, especially in adoption. Working Paper 3 plenary form. An adopted child becomes a full member of its new family, but it also ceases to be the son or daughter of its birth parents 5, and is no longer a member of their kin group 6. For historical reasons, Quebec society is, with regard to private law, governed by a Civil Code. In this context, the legal tie created between a child and its new parents must be understood through the concept of «filiation». In the section on family law, the Civil Code of Quebec pays special attention to the legal senses of and prerequisites for establishing «filiation»; that is, identifying the persons from whom a child is issued according to its birth certificate. In its current version, the Code differentiates between blood filiation and adoptive filiation. When a child is adopted, its new filiation substitutes itself to its original filiation. A new birth certificate that does not mention the adoption is filled out, and notes the names of the adopters as if they were the only parents that the child had ever had. Adoption entails the same rights and responsibilities than blood filiation. Generally speaking, among the various forms of child circulation surveyed by anthropologists 7, the least popular is plenary adoption which precludes the adoptee s affiliation to both its biological and adoptive families. In most traditional societies, re-settling a child does not result in the loss of its original identity, nor simulate biological filiation between adopters and adoptee. Above all, it creates a bond between the adult partners of exchange; sometimes, it even occurs as a substitute or an equivalent to marital exchange. Furthermore, rights and responsibilities regarding the child are not necessarily associated with just one set of parents; they may also be shared between donors and recipients (Lallemand, 1993). In some western countries, adoption is not always plenary in form. For example, France and Belgium also permit an additive form of adoption called simple adoption that does not extinguish all links with the original parents. But this has never obtained in Quebec and plenary adoption is preferred and widely promoted in those western countries (such as France) that also allow simple adoption 8. The court can grant the adoption only if it is in the best interest of the child. In addition, as a measure of protection for the child, the State tightly supervises the adoption in order to prevent any abuse that could give precedence instead to the interest of either the biological parents, the adoptive parents or any other private party. When the child is born in Quebec, the only parents allowed to independently choose the adoptive parents are those who give special written consent in favor of a member of their immediate Nevertheless, when a person adopts the child of his/her spouse or common-law partner, the filiation with this spouse or partners remain in force (only the filiation with the other parent is terminated). However, the restrictions on marriage with former close relatives remain if these restrictions are known in spite of the confidentiality of the files. For the most part, anthropologists have studied how the circulation of children interacts with other dimensions of the social structure, though few have examined this in western societies. The best known works deal with Oceania (notably, Brady, 1976; Carroll, 1970 and Silk, 1980), the Inuit (Guemple, 1979 and Saladin d'anglure, 1988), China (Wolf and Huang, 1980) and Africa (Goody, 1982). See also Goody, 1969; Anthropologie et Sociétés, 1988 and Suzanne Lallemand (1993). According to the principle of legal equality for all children, when an intercountry adoption is carried out in a country that practices simple adoption, or that does not have a juridical process for adoption, a judgment of plenary adoption must be issued in Quebec to establish the exclusivity of the bond and confer upon the adoptive filiation powers that are identical to those of biological filiation. 4 Working Paper family 9. Since 1979, when the Youth Protection Act came into effect, every other type of direct placement with a view to adoption has been prohibited; this is a distinctive feature of Quebec's adoption system. The birth parents must sign a general consent to adoption that gives exercise of parental authority to the Director of Youth Protection (DYP). Only the DYP staff members are authorized to identify the prospective adoptive parents or evaluate their parental capacities. Elsewhere in Canada, and in the United States, regulatory control is generally less strict: the placement leading to adoption can often be arranged by the families themselves or through a private agency. The evaluation of candidates may also be carried out by professionals in private practice. In France, parents are allowed to place their child directly with a view to adoption, if the child is at least two years of age. As I have demonstrated elsewhere (Ouellette, 1995, 1996a, 1996b), this system of adoption is structured on the idea of a priceless child (Zelizer, 1987, 1992) who must be sheltered from any form of exchange, including a gift exchange. The prohibition on direct placement and the mediation of a representative of the State (the DYP) lead to interpret plenary adoption as a gift to the child, by diverting attention away from the transaction to which the child is being subjected, and from the breaking off of ties that is being foisted upon it. Thus, each of the parties involved is portrayed as an altruistic donor. The parents (the mother) who gave life to the child and now consent to its adoption give this child the greatest proof of their love and the best chance in life . The adoptive family gives it their love, their time and all that the child needs to grow and thrive. Finally, the professionals working for the adoption services of the State give a family to a child who does not already have one . The only recipient of a gift (and the only person indebted) is therefore the child itself. In inter-country adoption the adoption of children residing outside of Quebec it is the authorities from the country of origin who determine if the child is adoptable, and who can decide if the child will be entrusted to a Quebec family. Thus, the role of the Quebec government is perforce limited. Private accredited agencies, supervised by the Secrétariat à l adoption internationale, act as mediators between prospective adoptive parents and the authorities of the foreign countries. In some cases, prospective adoptive parents can also make personal contacts in the country of origin in order to apply for an adoption. In addition, they can obtain psychosocial evaluation of their parental capacities at their own expense through a psychologist or social worker in private practice. The DYP intervenes only in procedures carried out in countries where adoption is not subject to judicial control. The costs incurred by the adopters are substantial (in certain cases, exceeding $15 000); they derive from administrative formalities, travel abroad, and the need to get a wide variety of private actors involved. Most of the time, an obligatory gift of several thousand dollars must also be made to a charity or orphanage. Since so many private interests are involved, the legitimacy of international adoptions is tenuous. The interpretations according to which 9 Special consent may be granted to an ascendant, to a relative in collateral line to the third degree, or to the spouse of this ascendent or relative. Working Paper 5 these adoptions are a gift to the child itself are more easily contested than it is the case in domestic adoptions. The legal and administrative framework of adoption starts by defining the child according to its age. Its interest and needs to be protected are then evaluated above all in terms of its well-being and psycho emotional growth as a young individual. Since a child s early years are judged to be crucial, the urgency of acting on its behalf has made adoption increasingly important. Nevertheless, the first function of adoption is to create an exclusive relationship between the adoptive parents and their new child. In what way is it in the interest of the child to be submitted to such a radical change of its kinship affiliation and identity (in addition to the change in its name, its national, ethno cultural, religious, linguistic or other form of identity frequently change as well)? This question must be explored by taking in account new social practices in the area of plenary adoption. New practices in plenary adoption Plenary adoption gives to the adopted child rights that are equivalent to those enjoyed by the children born into their adopting family. The fact that it breaks the original filiation creates a situation that appears unambiguous, and the legal and symbolic results are certainly desirable in many cases. In other cases, however, exclusivity seems to better serve the interest of the adults than those of the child itself. In order to clarify this idea, I will deal below with three important aspects of adoption today: stepparent adoption, adoption as permanency planning on behalf of children supported by youth protection services, and international adoption of children originating in countries that are unfamiliar with the concept of plenary adoption. STEPPARENT ADOPTION In Quebec, a person may adopt his/her spouse s child (or common law partner s child, after at least three years of cohabitation). This is the most common form of intrafamilial adoption. It creates a legal filiation with the adopter without breaking the filiation already established between the child and the spouse (or common law partner). However, it terminates the legal relationship with the other parent, who must provide special consent, unless she or he has been divested of his (her) rights. This rupture also affects the half-brothers, half-sisters, grandparents, uncles, aunts and cousins, all of whom become strangers to the child. These adoptions allow for formal recognition of the parental role exercised by a stepparent, but permanently remove another parent and another kinship affiliation whose existence up to that point had been meaningful (even though it may have caused harm or pain). In this type of plenary adoption practice, the breaking up of the paternal or maternal filiation serves primarily the interest of the couple seeking 6 Working Paper exclusive parental status and rights, rather than the interest of the child, who is already part of their family, and is certainly not deprived of parents. It does not allow for con
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