Faring well for children: Faculty Q&A with Elizabeth Bartholet
April 16, 2007
Professor Elizabeth Bartholet
Professor Elizabeth Bartholet '65, a leading child welfare expert, has taught family law at HLS for more than two decades. In 2004, she created the law school's Child Advocacy Program, which takes a multidisciplinary approach to the teaching of law relating to children's issues. In collaboration with the ABA Center on Children and the Law, CAP hosted its inaugural conference, "Promoting Children's Interests: Preparation, Practice and Policy Reform," at HLS from April 13 to 15.
Why did your conference on children and the law feature so many nonlawyers?
The idea of the conference and the Child Advocacy Program itself is to get lawyers to think very broadly about how to structure child welfare systems, what laws should look like, what experts in early childhood development can tell us, how to use social science to figure out what's the right direction for reform. So we wanted to bring together people from a wide variety of disciplines and career paths.
Have you always thought about the law in such broad terms?
I was never interested in learning to be a lawyer just to represent whomever in an adversarial process. Working to create a more just society, and thinking about how lawyers can be agents of social change—that's what interests me. Initially, as a lawyer at the NAACP Legal Defense Fund, I thought using law for social change meant bringing law reform cases in court. By the time I started the Legal Action Center, a public interest law firm in New York City, I began to realize how limited litigation is as a method for social change. So in the Child Advocacy Program, one of our courses is called "The Art of Social Change," and a key goal is to illustrate the limited role of litigation. We bring in a group of stellar people working as social change agents, almost none of whom work as lawyers in courtroom settings.
Has the law caught up with all the vast changes in reproductive technology?
There's still a huge gap. There are, for example, no laws governing whether scientists can do cloning, what they can do in the way of stem cell research, or whether they can do positive or negative eugenics in the context of in vitro fertilization. It's basically a free-for-all free market in which people can do what they want and can pay for. Occasionally, some issues randomly fall into the laps of courts, but courts aren't in a position to write the rules governing general conduct in any area—all they can say is that in this case one person will get custody of a child or a frozen embryo, or in another case a child born pursuant to commercial surrogacy will get Social Security benefits. Courts are not in the position to say we should ban reproductive cloning, or we should restrict sex selection or various forms of eugenics. The U.S. is the outlier country here. All other countries in our technological position have formed commissions that wrestle with the public policy issues, and have passed laws governing such issues. We're the only country that is leaving it all to the market. This is partly because both sides in the pro-choice versus pro-life debate feel they have a lot to lose if the issues go to a legislative forum for resolution. Also, the U.S. has a uniquely powerful tradition of individual autonomy, and of reproductive freedom, which makes any effort to regulate in this area highly suspect.
How does that tradition of autonomy affect Americans' view of adoption?
Birth parents are seen as entitled to hold onto their children except in cases of extreme abuse and neglect, and often even then. There is enormous suspicion about transferring children from birth to adoptive parents. In my view, we emphasize the rights of birth parents at the expense of children’s rights and interests. If we cared more about kids, we would more readily intervene in families to protect children, and we would move more of those abused and neglected to adoptive homes, and move them earlier, when they'd be less damaged and better able to take advantage of being in a good home.
Is support for international adoptions growing?
There are more parents who think of such adoptions as a positive option. But at the same time, there's a lot going on in the world that's making international adoption more difficult. For example, Romania, a country with thousands of kids in desperately inadequate institutions, was for a few years after the fall of the communist regime open to international adoption, and thousands of children per year were placed in adoptive homes in the U.S. and other countries. But just recently Romania was forced to pass a law eliminating international adoption, as a condition of joining the EU. The European Parliament leaders at the time claimed that international adoption was an inherent violation of children's heritage rights. There are many other countries, including most of South America, where the trend is to restrict or effectively eliminate international adoption, and UNICEF has been a powerful force pushing in this direction. So in a country like Peru, where my two adopted kids were put in my arms at one month and four months of age, now the government has monopoly power over international adoption, which UNICEF and others claim is a needed reform to prevent adoption abuses. But such monopoly power means that in Peru and many other countries, almost no kids are released for adoption, and adoptees are held for years in orphanages before being placed—years that are incredibly destructive of their chances for normal, healthy development.
Do adoptions by celebrities such as Angelina Jolie and Madonna help or hurt your cause of promoting international adoptions?
In some ways celebrity adoptions help. Adoption was stigmatized in the past, and it can help people realize this is a positive form of family when they see celebrities joyfully adopting transnationally. And these celebrities often have lots of money they are willing to donate to improve the care for kids left behind in the orphanages who will not be adopted, which is hugely important since most kids won't get adoptive homes. The downside is represented by the Madonna story. Her adoption from Africa generated lots of very hostile publicity that gave the sense that international adoption is all about rich, privileged white people going to take babies away from their birth parents and break the laws. The press often focuses only on the abuses that happen in some adoptions. In this case, the press distorted the reality, in my view. The basic international adoption story in this case, and in almost all cases, is a hugely positive one—kids who would otherwise live or die in horrible circumstances get loving homes and a chance to grow up in a way that gives them good prospects for the future.