Adoption and Family Formation: What Each Position Is Protecting

In the spring of 2018, a same-sex couple in Philadelphia — prospective foster parents who had passed their home study and background checks — were turned away by Catholic Social Services, which held a city contract to certify foster families. CSS's policy was that it would not evaluate households whose relationships conflicted with Catholic teaching on marriage. The couple filed a complaint with the city. The city declined to renew CSS's contract. CSS sued. The case went to the Supreme Court. In Fulton v. City of Philadelphia (2021), the Court ruled nine-to-zero for CSS on narrow grounds — not resolving whether religious freedom requires government accommodation, but finding that Philadelphia's process for granting discretionary exemptions made its nondiscrimination policy constitutionally vulnerable. Justice Alito, joined by Thomas and Gorsuch, wanted to go further. The deeper question — who controls the criteria for family formation when religion, civil rights, and child welfare collide — is still live.

That case is one doorway into a terrain that has many. Adoption and family formation sits at the intersection of nearly every major fault line in American public life: religious liberty and civil rights, race and child welfare, parental rights and state power, market forces and human dignity. It is not a single debate. It is a cluster of related debates — about who gets to form a family, on what terms, who decides, and whose interests the system is actually designed to serve. The people holding different positions in this cluster are not simply talking past each other about policy options. They are protecting different things — and identifying those things is more useful than scoring points.

Some numbers first. In fiscal year 2024, approximately 328,000 children were in U.S. foster care — a sixth consecutive year of decline from a 2017 peak of over 437,000, according to the Adoption and Foster Care Analysis and Reporting System (AFCARS) data published by the Administration for Children and Families. Yet the number of children adopted from foster care has fallen further and faster: 46,935 children were adopted in FY 2024, a 26% decline since 2019 and the lowest figure since 1999, while 70,418 children remained waiting for adoption at year's end. Private domestic infant adoptions run about 25,500 per year. International adoptions to the United States have dropped more than 90%, from roughly 22,000 per year in the mid-2000s to under 2,000 by 2023. The system is not short of children who need families. It is short of families, bogged in bureaucracy, and contested at every procedural seam.

What religious liberty and faith-based agency advocates are protecting

The argument that religious institutions that built the infrastructure of child welfare in America should not be required to violate their theology as the price of continuing to serve the children they have served for generations — and that pluralism in public life means tolerating organizations whose values differ from evolving state norms. Catholic Social Services of Philadelphia had operated for over a century before the Fulton dispute. The claim being made is not only doctrinal but historical: these organizations did not enter the field as government contractors who needed to comply with licensing requirements. They built the field. The concern is that when governments treat their religious character as a disqualifying feature rather than a constitutive one, they are not enforcing neutrality. They are demanding ideological conformity as the price of participation in public service.

The subsidiarity argument that faith-based civil society is not interchangeable with government service — and that forcing religious agencies out of the foster care system does not simply replace their capacity but destroys it. After Massachusetts and Illinois required agencies to certify same-sex couples, religious agencies in both states closed their foster care and adoption programs. Advocates argue this created real gaps: foster families recruited and supported through faith-community networks did not simply transfer to secular agencies. The networks were specific to the organizations. Whether secular or LGBTQ-affirming agencies can fill that gap is empirically contested. What is not contested is that the closures happened. What this position is protecting is not a preference for discrimination. It is an argument about how civil society works — and what is lost when the state's definition of acceptable participation contracts to exclude organizations whose beliefs do not track contemporary consensus.

The theological claim that children are best served by a mother and a father within marriage — and the conscience claim that requiring an agency to certify what it believes to be an inadequate placement is a demand to act against deeply held religious conviction, not merely a procedural compliance requirement. For Catholic Social Services, the question of same-sex household certification is not peripheral. It is connected to a specific account of what family is, what children need, and what the church understands itself to be doing when it assists in family formation. Reasonable people can dispute whether that account is correct. What this map is trying to hold is that the claim is genuinely theological — not a cover for animus — and that the Fulton Court recognized it as such in ruling unanimously for CSS, even though it avoided the harder question of what the Constitution ultimately requires when this theology conflicts with civil rights law.

What LGBTQ rights advocates are protecting

Equal dignity in the legal infrastructure of family formation — the argument that when a government-contracted agency turns away a same-sex couple, the state is endorsing a judgment about that couple's unworthiness to parent, regardless of the religious framing offered to justify it. The Williams Institute at UCLA has documented that LGBTQ individuals foster and adopt at dramatically higher rates than non-LGBTQ adults: over 21% of same-sex couples raise adopted children, compared to 3% of opposite-sex couples; approximately 30% of youth in foster care identify as LGBTQ, often placed there because family rejection was itself the pathway into the system. The argument here is not only about formal equality. It is about the specific harm of being told, by a publicly funded contractor operating with state authority, that you are not qualified to parent. That experience is not abstract. It is experienced as the state speaking.

The empirical argument that excluding LGBTQ families from the foster and adoption system harms the children that system exists to serve. The dominant consensus of the American Academy of Pediatrics, the American Psychological Association, and the American Medical Association, drawing on decades of peer-reviewed research and multiple meta-analyses, is that children raised by same-sex parents show developmental outcomes comparable to those raised by heterosexual parents across cognitive, social, psychological, and academic measures. Methodological critics — most prominently Walter Schumm of Kansas State University — have argued the existing literature relies on self-selected, relatively affluent samples and that the "no differences" consensus is overstated. The weight of evidence, as evaluated by mainstream pediatric professional organizations, currently supports the consensus. What LGBTQ advocates are protecting is not only their own dignity but a straightforward argument: if LGBTQ families are comparably capable of serving children's needs, and if those families are disproportionately willing to foster and adopt — including older children, sibling groups, and children with special needs that are harder to place — then excluding them causes concrete harm to specific children.

The structural principle that public funds cannot subsidize discrimination — and that religious character is not a license to use state resources to select who gets access to state services. As of 2024, thirteen states have enacted religious exemption laws permitting faith-based adoption agencies to decline LGBTQ placements. The Movement Advancement Project estimates that roughly 26% of the LGBTQ population lives in states where such exemptions exist. The argument is not that religious agencies cannot exist or operate according to their values. It is that when they accept public contracts and public money, they accept public obligations — including the obligation not to exclude people from publicly funded services on the basis of who they are.

What adoptee rights advocates are protecting

The argument that an original birth certificate is a person's own document — and that the mid-20th-century regime of sealed adoption records stripped adoptees of access to their own identity to serve the privacy interests of adults, creating a legal inequality that has no parallel in how any non-adoptee is treated. As of 2024, only ten states grant adult adoptees unrestricted access to their original birth certificates: Alabama, Alaska, Colorado, Connecticut, Kansas, Maine, New Hampshire, New York, Oregon, and Rhode Island. In eighteen states, a court order is required. Gregory Luce of the Adoptee Rights Law Center notes that before the mid-20th-century shift to closed records, open adoption records were the norm. The sealing of records was a deliberate policy response to the stigma of out-of-wedlock birth — designed to protect birth mothers from social exposure and to help adoptive families construct a seamless family narrative. Adoptees were not the intended beneficiaries of this policy. They were its collateral.

The argument that the privacy rationale for sealed records has been factually superseded — by consumer DNA testing — without the legal regime catching up to the new reality. With services like 23andMe and AncestryDNA, biological relatives who upload their DNA are findable regardless of whether official birth records are sealed. Birth parent anonymity is no longer a meaningful protection that sealed records can provide. What sealed records do now, advocates argue, is create bureaucratic obstacles that harm adoptees — blocking access to medical history, genetic information, and the basic documents of personal identity — without actually protecting anyone. The remaining political resistance comes from crisis pregnancy centers (which worry that birth record access expands the abortion debate) and a small number of advocacy groups claiming to represent birth mothers who want privacy. The National Council for Adoption — historically among the strongest defenders of sealed records — has substantially shifted its position, acknowledging that the privacy argument has become untenable in the DNA era and moving toward conditional access frameworks.

The identity argument: that searching for birth family is not pathology or disloyalty but a normative developmental task for adopted adults — and that the system's historic framing of adoptee curiosity as ingratitude has served adoptive parents' emotional comfort at the adoptee's psychological expense. Research on adoptee identity development, synthesized by David Brodzinsky and colleagues, finds that identity formation is more complex for adoptees — particularly for transracial adoptees who navigate racial identity in families that do not share their heritage. Approximately half of adoptees search for birth family at some point. What adoptee rights advocates are protecting is the principle that a person's identity is their own — that the adoptive family's desire for a closed narrative does not override the adoptee's interest in knowing who they are.

What birth and first parent advocates are protecting

The argument that relinquishment consent is frequently obtained under conditions of duress, misinformation, or institutional pressure that the law calls "voluntary" but that a more rigorous standard of voluntariness would not countenance. The domestic infant adoption system is funded by adoptive parents, not birth mothers. Agencies are paid by the people who receive children, not by the people who relinquish them. Birth parent advocates — including organizations like Concerned United Birthparents and First Mother Forum — argue this fundamental conflict of interest structures the entire system: agency workers who are paid by prospective adoptive parents have a financial incentive to counsel toward placement rather than parenting. Malinda Seymore's 2023 analysis in the University of Colorado Law Review, "Adoption as Substitute for Abortion?", examines how voluntariness is assessed in relinquishment law — and finds that courts have upheld consent as valid even when obtained from mothers in postpartum distress, financial crisis, or psychological pressure. What advocates are protecting is a higher standard of informed consent — and the acknowledgment that "choosing adoption" and "freely choosing adoption" are not always the same thing.

The argument that relinquishment trauma is real — and that a system which describes relinquishment as the "loving" and "brave" choice has normalized coercion by framing it as virtue. The clinical literature on birth mother outcomes documents elevated rates of grief, depression, and what psychologists call "disenfranchised loss" — grief that has no recognized social legitimacy, no rituals, no community acknowledgment. Birth mothers frequently report that promised post-adoption contact was curtailed or eliminated after placement — that open adoption agreements, which now characterize approximately 95% of domestic private adoptions, are largely unenforceable in most states. What birth parent advocates want is not to undo completed adoptions but to change the conditions under which they happen: legally enforceable open adoption agreements, mandatory waiting periods before consent is finalized, independent legal representation for birth mothers (currently rare, and rarely paid for by anyone but the adoptive family's agency), and honest informed consent processes that include information about parenting support resources.

What racial justice critics are protecting

The argument that the child welfare system — including its adoption pipeline — functions less like a welfare service than a surveillance and family-separation apparatus that disproportionately targets Black and Indigenous families, converting poverty into permanent family dissolution. Dorothy Roberts, in Torn Apart: How the Child Welfare System Destroys Black Families (Basic Books, 2022), documents the scale of the disparity: Black children are 14% of the U.S. child population but approximately 23% of foster care; American Indian and Alaska Native children enter care at rates more than three times the national average; 53% of Black children will experience a child protective services investigation before turning eighteen. Roberts argues this disparity is not primarily explained by differential rates of child maltreatment. It reflects structural racial bias at every decision point — from which families mandated reporters report (most mandated reporters are white and work in institutions that disproportionately serve Black families) to how caseworkers assess risk, to how courts evaluate fitness.

The specific argument that most removals happen for neglect — not abuse — and that "neglect" in practice often means poverty: inadequate housing, food, or supervision, conditions that could be addressed by giving families resources rather than removing their children. The National Coalition for Child Protection Reform documents that in many jurisdictions, the majority of CPS removals are on neglect grounds. Critics argue that the child welfare system takes children from parents for being poor, then places them in foster care funded at rates that would, if paid directly to the birth parent, often address the underlying neglect. The Adoption and Safe Families Act of 1997 (ASFA) created a 15/22-month provision requiring states to initiate termination of parental rights for children in foster care for 15 of the last 22 months. Racial justice advocates argue this rule functions as a conveyor belt — giving families insufficient time to complete treatment programs, stabilize housing, or address mental health issues in a system where services have long waiting lists — then permanently destroying families that might have recovered with support.

The transracial adoption question: whether placing Black and Indigenous children in white families — however loving — severs children from the racial communities whose survival and culture depend in part on raising their own young. The National Association of Black Social Workers issued a statement in 1972 calling transracial adoption "cultural genocide" — language that drew immediate criticism but articulated a concern that research has not fully resolved. Studies consistently find that transracial adoptees show outcomes on standard psychological measures (self-esteem, adjustment) comparable to same-race adoptees. But researchers also find that transracial adoptees show lower rates of identification with communities of color and report fewer "survival skills" for navigating racism — because white adoptive parents, whatever their intentions, are often not equipped to provide them. Whether lower racial identification is a harm depends on what one considers a healthy identity — a normative question, not an empirical one. The Indian Child Welfare Act (1978) represents the legal codification of the Indigenous version of this concern: ICWA creates placement preferences for Native children in Native homes, reflecting both the historical trauma of the Indian Adoption Project (which removed over 35,000 Native children to white homes between 1958 and 1967) and tribal governments' assertion of sovereignty over their members. In Haaland v. Brackeen (2023), the Supreme Court upheld ICWA's constitutionality seven-to-two, though Justice Kavanaugh's concurrence flagged the equal protection question as unresolved — a signal that future litigation is possible.

What the argument is actually about

Beneath the specific policy debates is a structural question each position answers differently: Is adoption primarily a child welfare service, a family formation service, or a market — and who does it serve first? The child welfare framing (associated with Elizabeth Bartholet's Nobody's Children, Beacon Press, 1999, and mainstream pediatric institutions) says adoption serves children by providing permanent families; adults' preferences are secondary. The birth parent reform framing says the current system serves adoptive parents' demand for children; birth parents and adoptees are the system's least-protected parties. The racial justice framing says the system serves middle-class families and the professional-class institutions that manage child removal; Black and Indigenous families are its primary victims. The religious liberty framing says the system now serves the state's ideological agenda when it forces faith-based providers out of the market. The adoptee rights framing says the system, historically, served everyone's interests except the one person for whom it claimed to exist.

These positions are not resolvable by more data. They reflect genuine value disagreements about the relationship between state, family, community, and individual — which is why adoption policy has remained durably contested across decades of demographic, legal, and cultural change. A child sitting in foster care tonight is waiting not because research about family outcomes is ambiguous, but because the adults who could act on that research are in dispute about whose conception of family deserves the law's protection, which history's wounds require acknowledgment, and what a person is owed when their origins have been administratively sealed. Those are not technical questions. They are questions about what we believe — about belonging, about identity, about whose conscience the state is obligated to protect — and the answers different people give are each protecting something real.

Adoption law tries to solve a problem that is, at its core, philosophical: what does it mean to belong to a family, and who has the authority to make that meaning legally real? Every position in this debate answers that question — and each answer, taken seriously, excludes someone. The child welfare system in its current form excludes nobody cleanly. It simply excludes different people from different things, inconsistently, without having ever fully decided what it is for.