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| A BRIEF HISTORY OF ADOPTION | Page 2 of 10 << back | next >> |
Historical Adoption Practices
Babylonian adoption laws stated, "If a man has taken a young child from his waters to sonship and has reared him up no one has any claim against the nursling.
There are also biblical references to adoption; for example, Moses' mother, in an attempt to save her child from death by the Pharaoh's decree, placed him in a reed basket at the edge of the Nile River. Found by the Pharaoh's daughter, Moses was later formally adopted by her. (His birthmother served as his nurse during Moses' infancy.)
The ancient Romans practiced two types of adoptions: "adrogatio" (or "adrogation") and °adoptio" (or "adoption"). Adrogation usually referred to the adoption of an adult mate, who became the legal heir of the adopter.
Adrogation was fairly common in ancient Rome, according to author John Boswell. Its purpose was to enable a childless man to ensure the continuity' of his family name and also to provide someone to carry out religions rituals and memorials after his death.
In contrast, adoption was the process by which a minor child became a legal heir and dependent of the adoptive parent, with the agreement of his or her biological father. According to the law at that time, and based on the Laws of the Twelve Tables (mid-500s B.C.) the birthfathcr would perhaps sell his son up to three times and his daughter or granddaughter once, after which lie could not reclaim the children Unquestioned fancily allegiance was expected whether the person was adopted as a child or an adult.
The "paterfamilias" (male family head) had great power and could literally condemn his children to death. He could also sell them or abandon them (apparently girl children were more likely' to be abandoned) with no negative social or legal consequences accruing to such acts.
In Roman law only men were allowed to adopt until ,A.D. 291. Thereafter, women were allowed in special circumstances to adopt, for example, in the event of the loss of a biological child.
It is unclear whether the ancient Hebrews recognized adoption, although some experts have contended that St. Paul referred to adoptions among Hebrews in his writings, while other experts contend that his examples referred to adoptions among the Romans or Galatians.
Laws slowly changed and evolved. Under the reign of Byzantine emperor Justinian I o. 527-565), the adoptive parents, the person to be adopted and the head of the birth family all were required to formally appear before a magistrate in order for an adoption to be legally recognized (a precursor of the "consent" aspect of Western law).
Some societies attached military significance to the act of adoption; for example, in ancient Germany, military ceremonies occurred at the point of adoption, with weapons placed in the hands of the adopted person. In ancient France, the adopted person swore to defend the adoptive family.
The English law of inheritance, with its heavy emphasis on blood lines became prominent in the Western world, and little or no provisions were made for a family name to "live on" through adopted children.
The concept of primogeniture-a practice whereby the eldest son would inherit the family property and, in turn, his eldest son would inherit from him-was core to the English, Germans and other Europeans.
According to law professor C. M. A. McCauliff, "There could be no question of adoption in England so long as the heir at law held sway. The notion of any heir outside a natural orderly succession was repugnant to English society."
Legitimation, an issue of concern for centuries, was seen as a particularly important issue to the Christian church. In A.1). 335, Emperor Constantine, a Christian, ordered that children born to unmarried parents who later married would automatically become legitimate children. This legitimation law was ultimately abolished in 1235 in England, alter which legitimation was to be determined by a jury on a case by case basis.
Legitimation was especially important in England because it was bound up in inheritance and rights. Since there was no legal way to adopt a child, legitimation was the only route for a child born out of wedlock to be considered an heir.
Children who needed parents were cared for by relatives, friends or others who "took pity on them." Or they fended for themselves, living as thieves, prostitutes or beggars. Abandoned children were also at risk of being kidnapped by individuals who would put out their eyes or cut off their feet, mutilating them so they could be more effectively used as beggars.
It is also important to remember that the Black Death claimed the lives of many thousands of people in the 14th century. Thus survival was the primary goal at that time, and many people could only afford to care for children related to them. Consequently, many children who were orphaned quickly died.
The Elizabethan Poor Law of 1601 formally provided for poor people in England, requiring parents either to care for their children or indenture them to others. This law also was the basis for the local systems of public charity in the colonies that later became the United States. Local overseers of the poor provided local relief for orphans. Although there were people in Europe who wished to legally tie children to their families through adoption, there were no provisions for such status to be attained.
In some areas, the situation for unwed mothers and their infants became very desperate.
C. M. A. McCauliff described a horrifying practice of unscrupulous "baby farmers," partially quoting the Report of the Select Committee on the Protection of Infant Life:
In Victorian England, unwed mothers were practically forced to give up their babies, who were then sent to baby-fanning houses where they were fed "a mixture of laudanum, lime, corn flour, water, milk and washing powder . . . with rare exceptions they all if them die in a very short time."
According to author Diana Dewar, baby farmers took out insurance policies on children's lives and ensured their rapid demise so they could collect payments. These people also reassured unsuspecting single mothers that their children would be placed with loving families; however, many baby farmers would subsequently sell the children to the highest bidders.
Not everyone was indifferent to the plight of the children, and some individuals decided to take action. Nineteenth-century British social reformer Thomas Coram, horrified by the sight of abandoned dead babies in the streets, started a foundling hospital. Handel, the famous composer, donated all the royalties for his work Messiah to the hospital.
Because people in Britain could not adopt children and have parental rights and obligations transferred to them (as adoptive parents), many children who were orphaned or whose parents could not care for them were placed in foster homes or almshouses.
The concept of parens patriae, wherein the government acts as a parent, enabled the government to take such actions. This aspect of British common law has been incorporated into U.S. law and is part of U.S. child protection statutes and of the Indian Child Welfare Act, allowing the state to remove children from abusive or neglectful families.
The concept of the dominance of parental rights prevailed prior to the establishment of adoption and child protection statutes. Many 19th-century individuals in Britain (as well as in other countries) who were otherwise interested in fostering children were fearful of doing so because they could be subjected to blackmail threats from birthparents demanding money in exchange for allowing the foster parents to rear the child. (Recall, if you will, the attempt at blackmail by Eliza Doolittle's father present in the movie My Fair Lady for an example of practices common at the time or read Oliver Twist by Charles Dickens to gain a feel for the hopelessness and helplessness of children during this era.)
In addition, unscrupulous relatives could reclaim the child and literally sell him to tramps, prostitutes or anyone. It must be remembered that children were not revered or protected as they are now by statute and were often conceptualized as property rather than persons. Yet many kind individuals would have eagerly adopted children had that legal option been available and had they been assured that the integrity of their family would not be disrupted by birthparents or others.
It was not until 1851 that the first modern adoption statute worthy of the name was passed, and it was in the state of Massachusetts: "An Act to Provide for the Adoption of Children." Adoptions were, however, taking place with regularity in Texas, Louisiana and other localities long before 1851. Although most law in the United States is based on British common law, the United States was the pioneer in modern adoption. When the English passed their first adoption laws in 1926, they based them on U.S. adoption laws, specifically, New York adoption laws.
Prior to the Massachusetts adoption statute, no judicial review or court appearance was required to adopt a child. As a result, it was considered to be the first modern adoption law that formally (and, by today's standards, very minimally) took into account the interests of the child. It is interesting to note that the adoption statute in Massachusetts was barely noticed by the press, and few, if any, people envisioned the impact of this statute on other states or noted that Massachusetts was a pacesetter in adoption law.
The institution of adoption cannot be fully discussed without also providing a brief historical overview of the institutions of foster care, or "placing out," as well as the institution of the group home, also known as the almshouse, "poor house" and orphanage.
To date, the argument continues, not just in the United States but worldwide, as to whether institutional care or foster care is preferable for children who cannot remain with their birthparents and who need temporary care. This essay will also include a brief overview of these institutions.
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©2000 by Christine Adamec and William Pierce, Ph.D. Reprinted from The Encyclopedia of Adoption, 2nd Edition (2nd Edition) with permission of Facts On File, Inc.
