Adoption and Age Discrimination

Posted on Categories Family Law, Legal Scholarship

In recent years, we’ve heard a lot of discussion of interracial adoptions and adoptions by same-sex couples.  But it is possible that the most pervasive form of discrimination in adoption is discrimination against older prospective parents.  3L Sara Mills explores this topic in a new paper on SSRN entitled “Perpetuating Ageism Via Adoption Standards and Practices.”  She argues that age discrimination in adoption may be unconstitutional and proposes a new statute to address the problem.  Here is the abstract:

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it affects minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic examination of the issue of age discrimination in adoption and proposes both constitutional and statutory remedies to counter the problem.  The justifications for age discrimination in adoption are no longer supported by empirical evidence or societal realities.  Ultimately, when an older petitioner is denied the right to adopt, the agency, the court, and, fundamentally, society are implicitly rejecting the worth and dignity of older individuals and impermissibly discriminating based on ageist stereotypes.

5 thoughts on “Adoption and Age Discrimination”

  1. Thank you for stating what others won’t. I am horrified to find out that because my husband hit some magic age number, we are disqualified from some agencies. What I find most ironic is that I was told by an agency that did not have an age limit that I may not be “pickable” by the birth mother. I find it ironic that someone who statistically speaking made incorrect choices wouldn’t choose to “pick” me. Something needs to be done about this.

    1. We also are facing age discrimination…. I believe the Equal Protection Clause may be applicable and to that end we are contacting a civil rights attorney.

  2. We want to adopt our grandchildren who are in DSS custody in Mecklenberg County, NC. We were approved in a 67 page ICPC report. Today in court, the guardian ad litem testified that his first reason for rejecting us was our age. Federal Law requires kin get first preference but DSS and the GAL want our grandchildren to be adopted by a single parent foster mother who puts our 3 year old and 1 year in day care all day. We feel powerless.

  3. We are fighting the same battle in Princeton WV with DHHR. They said our age is being a factor in giving us our grandchild. This should never happen in the United States. Can you help us.

  4. We were discriminated against because a state adoption agency has a policy of the parents not being more than 40 years different in age than the child. Is this age discrimination?

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