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.

6 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?

  5. We have not only known about age discrimination by our county foster care folks but have been victims to do. We were in our late 40’s when we started fostering with the intent to adopt (either children in our care (including respite kids or foster kids in our county that would become available for adoption) The first 4 years went by and we had three seperate long term foster placements. Two of the placements ICWA applied and, well you know how that went. The other kiddo went to a family member – which was as it should be. Any time one of our respite kids (sibling groups too) would be available for adoption we would tell the county we would be interested. A couple of these children we have provided respite for numerous times and some we have know through other situations. Always no and the reason, ” The family they picked had “more energy”! Ok, I was teaching preschool – how much more energy do you require?? There was also, “Well, the other family has a really big house , big, this better that. We have a nice house with a yard in a great neighborhood. Yes it’s not large, but it’s cozy and we live within our means. I was always led to believe that age and what you have or don’t have isn’t as imporant as experience, understanding, patience, and most of all LOVE for children in order to adopt. I really wish someone would investigate the foster care agencies – including state and county offices to rute out those who are discriminating. We did finally adopt a boy 3 years ago – he was placed with us by his GAL after his and his brother’s rushed adoption placement with an inexperienced couple (who had a bigger house and yard in a bigger city) blew up after only 30 days. The couple couldn’t handle them. We had inquired about these boys prior to them going to this other family and were told “they needed parents with more energy”. Last year we adopted one of his brothers after another failed adoption with another inexperienced younger couple who not only couldn’t handle the brother, abused the boy we adopted. Another brother was placed back with a former foster mom who had also been told she didn’t have enough energy. She is in the process of adopting the last brother and she is in her 60’s. Something needs to be done about the foster adoption system. Those who want to adopt need to simply foster children for at least one year if they have not parented before.

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