There is a major misconception being put forth:
"Adoption, for the most part, is a right that nearly everyone possessed by law," claims Caty DiDonato Anderson. "Unlike the issue of gay marriage, which is a right many states have yet to grant (except for in the case of California, Arizona, and Florida, where the constitutions have been changed in order to exclude gay marriage), adoption by same sex couples or single gay people is a right that is being taken away."
"Among rights guaranteed to U.S. citizens is the right to have a child."
WRONG! The constitution protects parents right to nurture and maintain a relationship with their blood-related children! It does not grant anyone a right or entitlement to anyone else's children!
Add your comment to mine:
There is no right to adopt! It does not exist. Not in the U.S. constitution or anywhere in the world. It is not a right or an entitlement.
Ina Hut, upon resigning in disgust as director of Wereldkinderen (World Children) the largest adoption agency in the Netherlands recognized that “would-be parents have strong desires, and I understand that. Everybody has the right to want children,” she said, adding: “but you don’t have the right to children. Children have the right to parents. The right to children doesn’t exist on this planet.”
Adopting someone else’s child is a privilege. In private adoption that choice is left to the mother of the child. In state adoptions that right is the state’s to chose who is best fit for each child’s needs because adoption is about finding homes for children, NOT finding children for anyone who wants one (although the privatization of adoption has created a money talks market place).
Some same sex couples – and single people – may make fine parents and may even be preferable for some children. But that is a case by case selection, and considered along with other criteria such as age.
The people who have their rights abdicated by adoption are the adoptee and his original family. Every adoption takes the link between them and eradicates it then issues a new falsified birth certificate stating the child was “born to” his adopters. In denying those spearated by doption acces to their own original birth certificates the US is denying them their civil human rights – a right all others have.
They are the wronged party in adoption – the ones adoption is supposed ot be all about.
22 comments:
I sure ain't no constitutional lawyer, but I do not think the constitution protects either a right to adopt or a "right to nurture and maintain a relationship with their blood children." There may be stuff in family law about those topics, but I really doubt that either has anything to do with the constitution. Everything in the world that people do or want to do is not a matter of "rights".
Not a lawyer - constitutional or otherwise. Nor am I a betting person, but I bet you anything that you cannot find a right to adopt in the constitution! A right to parent, yes...that might be stretched to apply to those who have adopted. But not a right to adopt.
The constitution protects the right to NURTURE one's own child! Severance of that *right* requires due process - or relinquishing it voluntarily.
Hope Jane who is an attorney and who has researched this subjects helps out here.
Do you believe the constitution also provides for the right of persons to buy ova and sperm, rent wombs etc. to create children? After all, if it protects one method of "obtaining" children other than natural procreation, why not protect any and all?
The article I commented on refers to the 14th amendment, the only one that is used to assert a right to parent. In challenges, this amendment has been held been identified as "protect[ing] the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
Nothing at all about *obtaining* others' children!
No such right exists anywhere in the world - or planet!
But that right is not limited to the 14th, as the following supreme court decisions point out:
A parent's right to care and companionship of his or her children are so fundamental, as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments of the United States Constitution. In re: J.S. and C., 324 A 2d 90; supra 129 NJ Super, at 489.
The rights of parents to the care, custody and nurture of their children is of such character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and such right is a fundamental right protected by this amendment (First) and Amendments 5, 9, and 14. Doe v. Irwin, 441 F Supp 1247; U.S. D.C. of Michigan, (1985).
Even when blood relationships are strained, parents retain vital interest in preventing irretrievable destruction of their family life; if anything, persons faced with forced dissolution of their parental rights have more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. Santosky v. Kramer, 102 S Ct 1388; 455 US 745, (1982).
NOTE: BLOOD RELATION!
Parents have a fundamental constitutionally protected interest in continuity of legal bond with their children. Matter of Delaney, 617 P 2d 886, Oklahoma (1980). .
The liberty interest of the family encompasses an interest in retaining custody of one's children and, thus, a state may not interfere with a parent's custodial rights absent due process protections. Langton v. Maloney, 527 F Supp 538, D.C. Conn. (1981).
NOTE: RETAINING NOT OBTAINING CUSTODY!!!
Parent's right to custody of child is a right encompassed within protection of this amendment which may not be interfered with under guise of protecting public interest by legislative action which is arbitrary or without reasonable relation to some purpose within competency of state to effect. Regenold v. Baby Fold, Inc., 369 NE 2d 858; 68 Ill 2d 419, appeal dismissed 98 S Ct 1598, 435 US 963, IL, (1977).
Parent's interest in custody of her children is a liberty interest which has received considerable constitutional protection; a parent who is deprived of custody of his or her child, even though temporarily, suffers thereby grievous loss and such loss deserves extensive due process protection. In the Interest of Cooper, 621 P 2d 437; 5 Kansas App Div 2d 584, (1980).
The Due Process Clause of the Fourteenth Amendment requires that severance in the parent-child relationship caused by the state occur only with rigorous protections for individual liberty interests at stake. Bell v. City of Milwaukee, 746 F 2d 1205; US Ct App 7th Cir WI, (1984).
**No bond is more precious and none should be more zealously protected by the law as the bond between parent and child." Carson v. Elrod, 411 F Supp 645, 649; DC E.D. VA (1976).**
Note in the following decsion, the use of the term "perservation":
A parent's right to the preservation of his relationship with his child derives from the fact that the parent's achievement of a rich and rewarding life is likely to depend significantly on his ability to participate in the rearing of his children. A child's corresponding right to protection from interference in the relationship derives from the psychic importance to him of being raised by a loving, responsible, reliable adult. Franz v. U.S., 707 F 2d 582, 595^Q599; US Ct App (1983).
“True” rights are inalienable. They exist whether or not they are recognized, and whether or not the ability or the will to defend them exists.
True rights do not impose an implicit obligation upon any other person to provide them to us. In fact, rights exist in greatest measure when we are each simply “left alone”.
If something must be provided to us at the expense of someone else in order for us to have it, then it may be an entitlement, a privilage, or an act of charity – but it is not a “right”.
If you can make the distinction between proper,inalienable “rights”, and legislated “entitlements” or “privilages”, then we are on the right track.
http://breckshire.wordpress.com/2007/03/18/rights-vs-entitlement-and-privilege/
There is no more a right to adopt than there is a right to privacy. There are many "rights' people believe they may have, but they are NOT constitutionally - or otherwise - protected.
I do NOT think the constitution grants a right to adopt, to buy sperm or eggs, to use surrogates or any other reproductive assistance. I don't know where you got that idea. I'm with you on that part, there is no constitutional right to adopt.
As to the other stuff about parental rights, like I said, I am no lawyer, but I think you would have a hard time proving the constitution only protects the rights of biological parents to their children. What it protects is legal families, however they came to be, not strictly blood ties.
There is no right to HAVE children, either by giving birth or adopting. Nobody owes anybody a child by any means. However, once the kids are here and in a family, either biological or adoptive if the kid has been legally surrendered and legally adopted, then those rights to family kick in. If there is a contested adoption or a custody case, then the rights of both parties are weighed. If adoption or custody dispute never enters into the picture, then the family is only the biological family and there is no dispute.
Typo in the name aside, you said:
I do not think the constitution protects either a right to adopt or a "right to nurture and maintain a relationship with their blood children."
You now say: "There is no right to HAVE children, either by giving birth or adopting."
You are wrong. There is a right to BEAR one's own children and to continue a nurturing relationship with them. It is an unalienable right.
That is why parental rights cannot be severed without due process or "voluntarily" relinquished.
My take on this is still that there is no right to bear a child or adopt a child. That piece is not a matter of rights. It is a matter of choice or chance.
Once the child is born, yes there are parental rights. But if those rights are surrendered voluntarily or by termination, there are no more parental rights for that parent. Of course parental rights can be "voluntarily relinquished"! We both did that when we signed a surrender! It is not an "unalienable right" if it can be given up.
Nope, I am not wrong.
bearing a child is not a right - never said it was. I said the right to parent one's own child is a right that overrides the "right" of a stranger to do that.
Citizens have the right to vote, but often do not act upon that right...they abrogate their right by not registering or not voting. It does not mean they have no right.
Why do parental RIGHTS have to be relinquished or terminated before anyone else can raise our children - if there are no such rights?
As for said right being inalienable or unalienable, such rights are also known as natural or"absolute rights: "those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it....They existed before the Constitution was made, or the government was organized."
People v. Berberrich (N. Y.) 20 Barb. 224, 229; McCartee v. Orphan Asylum Soc. (N. Y.) 9 Cow. 437, 511, 513, 18 Am. Dec. 516; People v. Toynbee (N. Y.) 2 Parker, Cr. R. 329, 369, 370 (quoting 1 Bl. Comm. 123).
The concept of "certain unalienable rights" is evidence that the Founding Fathers of the United States believed in God - "Endowed by their creator with certain inalienable rights" - and for the most part we're strongly religious men with strong beliefs in entitlements bestowed by God upon men, and that these entitlements were so important that no earthly power can rightfully deny them. Therefore, no Government can deny these rights.
And that is why they cnnot be tken away without due cause and due process or voluntarily.
I'm really surprised to see that right-wing," God on Our Side" "Founding Fathers were religious" rhetoric coming from you, Mirah. Rights from God that supercede civil law sounds pretty scary, and not unlike what fundamentalists everywhere assert. The only thing that varies is what those with a direct pipeline to God claim he is saying.
I fear you have painted yourself into an embarrasing corner.
There is no absolute right to anything, except maybe your own life, which is not accepted in any jurisdiction that supports capital punishment.
"There is a right to BEAR one's own children and to continue a nurturing relationship with them. It is an unalienable right."
No, it's not inalienable because that would mean it couldn't ever be subject to forfeiture, and it is. All the time. There is no absolute right to parent (whether blood, adopted, or step children) because if we are proven unfit, neglectful, or abusive, those kids can be removed and we will have forfeited our right to raise them. Not inalienable, but alienable (able to be transferred to another).
No one can stop you from making them; what you do after is of interest to the state.
We are both surprised by each others positions. I agree with whomever when they are right. My children were all gifts of God. if you see my saying that as some awful religious statement, so be it. it is my sincere belief.
You can make all the semantic arguments you chose to - whatever floats your boat. My bottom line is that there is no way a total stranger has an equal right to children born to me! THEE IS NO RIGHT TO ADOPT!
Obviously, we have no iron-clad to right to the children born to us. We rightly risk losing them if we abuse them. But all things equal and no abuse or unfitness - biology trumps strangers, and our laws - right up to the constitution of the US maintains this.
Have you read the court decisions I posted and the wording of them?
Do you still believe the US constitution does not uphold one's right to nurture our children?
And if a right to adopt exist - show it to me!
And that's all I have said from the get go. But you are wrong, MaryAnne about there not being a right to bear a child. No one can be forced to abort nor is forceable sterilization allowed - even for "defective" mothers.
I reached out to Attorney Jane Edwards in regards to this discussion. She had trouble posting her emailed comments here and asked me to post it for her. I amlikewise havig some technical difficulties and will try to post it in two parts:
Mirah,
I've tried to do a copy and paste but it won't paste. Feel free to copy my email yourself.
Jane
Mirah,
Mary Anne is right; she sure ain't no constitutional lawyer.
The U. S. Supreme has held in many cases that the right of parents to nurture their children is protected by the due process clause of the 14th Amendment. The most recent is Troxel v. Granville, 530 U.S. 57 (2000).
Here's a quote from Justice Sandra Day's opinion in Troxel at pages 65 and 66 announcing the judgement of the Court.
"The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” We have long recognized that the Amendment’s Due Process Clause, like its Fifth Amendment counterpart, “guarantees more than fair process.” Washington v. Glucksberg, 521 U. S. 702, 719 (1997). The Clause also includes a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Id., at 720; see also Reno v. Flores, 507 U. S. 292, 301–302 (1993).
The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children— is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U. S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.” We explained in Pierce that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Id., at 535. We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children. “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Id., at 166.
Part II Jane Edwards reply:
In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e. g., Stanley v. Illinois, 405 U. S. 645, 651 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’ ” (citation omitted)); Wisconsin v. Yoder, 406 U. S. 205, 232 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U. S. 246, 255 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U. S. 584, 602 (1979) (“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.
Our cases have consistently followed that course”); Santosky v. Kramer, 455 U. S. 745, 753 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the righ[t] . . . to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."
Of course, parents can lose the right to raise their children if they ageree to give them up or if they abuse the children.
First of all, this discussion has nothing to do with what you consider your children to be, gift of God or whatever. It is specifically about rights under the US Constitution. I am not saying a right to adopt exists, and neither is anyone else here that I see. We AGREE with you on that point. Don't you get that? Isn't it possible there is neither an unalienable Constitutional right to adopt, nor to have biological children? Maybe both you and the person on some other forum who asserts there is a right to adopt are both wrong!
Where we disagree is about any Constitutional right to give birth or to raise the children one gives birth to. There are laws against forced abortion and forced sterilization, as well there should be. That does not mean there is an "inalienable tight" or a "natural law" that entitles one to conceive or raise children. As the previous poster said, a right that can be terminated is not "inablienable".
There are many things that the US Constitution says nothing about, and this is one of them. Your cited legal opinions do not convince.
MaryAnne,
I am very glad that not only are you not a constitutional attorney, but you are also not a supreme court judge...because you contrary to your "belief" the constitution very much does uphold a right to nurture one's own child as presented her in case after case after case.
You also might be interested to go tot he original article at: http://cchronicle.com/2010/01/whose-right-adoption-exclusion-in-america/
There you will see all those who disagree with your position/argument (as is the supreme court).
As for my being a surprise to you...oh well. Your behavior is sadly consistent and not surprising. You follow this blog for the purpose of arguing but had not one nice thing to say to me about obtaining a new photo of my deceased daughter, as many from our community did on facebook.
I more than understand anger. It is best focused on those who take children unnecessarily from parents who have committed no abuse.
We all need to focus on the most important person in adoption loss.
"Every child has the right to know and be cared for by his or her own parents, whenever possible. UNICEF believes that families needing support to care for their children should receive it."
Hope you don't want to argue that "right"!!
BTW - you are right that my feelings about my children being a blessing from God or nature have absolutely nothing to do with this. Except for the fact that that is the basis of the globally recognized right of any human to parent children born to them...but you are tight this was a discussion about the constitutional protection of that right.
Your first comment was:
**I do not think the constitution protects either a right to adopt or a "right to nurture and maintain a relationship with their blood children." There may be stuff in family law about those topics, but I really doubt that either has anything to do with the constitution.**
Do you see that the cases quoted prove your assumption to be incorrect? Do you see the very language of nurturing and blood relation used in the supreme court decisions, as I pointed them out?
FYI: The "everyone else here" you mention is just you.
Are you saying that the right to parent a child is the same for the blood related parent as for stranger???
No, there is another person here. You said:
"There is a right to BEAR one's own children and to continue a nurturing relationship with them. It is an unalienable right."
I said: it is not inalienable because it can be forfeited. So did MaryAnne.
Nobody said the right to come to parenthood naturally and the right to come to it through adoption is the same in terms of weight of right. Natural parenthood you can just do; adoptive parenthood you have to apply to do. What was said is that neither right could be interpreted as inalienable.
ooops...my bad. out of twenty comments I missed one!
However...MaryAnne's arguments began yesterday and preceded anything to with inalienable.
She argued that there is no constitutional protection of parental rights. I just re-quoted her first comment. It's still right up there at the top of the comment list.
Her assertion is incorrect.
Yes, but what you quoted from Jane is not relevant to the discussion. Because you persistently created a distinction between natural parents and adoptive parents. The rights referred to in those posts apply to ALL parents, natural or adoptive. They are about the right of parents to raise, influence, and school their children. They have nothing to do with the primacy (as you seem to put it) of biological ties over adoptive ones. If there is a constitutional protection of parental rights, it applies to every parent no matter how they came to parent.
Jane says:
"In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children."
You say:
"The constitution protects parents right to nurture and maintain a relationship with their blood-related children!"
Your point and intent are very specific: you believe biological parents have more rights than adoptive ones. It's quite obvious.
My point is very simple: the constitution - and all state laws - protect the right of parents, thus no one can take away their children without cause.
Under normal circumstances (baring weird repro technologies) children are born to their natural parents who have a constitutional right to maintain an ongoing relationship.
Thus those rights of the natural parent trump any alleged right to adopt, which we all agree does not exist.
I conceded in my first reply/comment that the right to parent applies to people who HAVE already adopted, but they cannot do that until AFTER the original RIGHR of the first/original parent are terminated! Rights that exist from the moment of birth.
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