The theories and policies that govern American adoptions are out of date. At least until they’re changed—to keep state and private agencies from applying the law in such a way as to prioritize heterosexual couples—you can expect the outgoing adoption industry to continue growing, raising important questions about race and rights.

Sister Irene of New York Foundling Hospital with children. Sister Irene is among the pioneers of modern adoption, establishing a system to board out children rather than institutionalize them. (Photo: Jacob Riis/Public Domain)

“Just as the U.S. looks to China and other countries, Canadians look to the United States,” says Jane Turner of Adopt Illinois, a private adoption agency. Adopt Illinois is one of 26 agencies in the U.S. accredited by the State Department to handle adoptions involving an American-born child and foreign parents. This practice, known as outgoing adoption, is raising important questions not only about entrenched attitudes toward race and adoption, but the rights of our youngest citizens.

Since the 1990s, the U.S. has allowed an untold number of healthy infants to be exported to other countries in private adoptions. Exact figures are not available because, astonishing as it seems, neither our federal nor state governments document the number of adoptions of this kind. Estimating where American children are going and in what numbers requires gathering information from more than a dozen sources. (I consulted the State Department, Citizenship and Immigration Canada, the Adoption Authority of Ireland, non-profit websites, and individual adoption agencies.)

Over the past 10 years, Canadian parents have adopted more than 1,000 American-born children; another 300 are growing up in the Netherlands; and at least another 100 will be raised in the United Kingdom. (British Foreign Secretary David Miliband and his American-born wife adopted two U.S.-born boys rather than adopt in England, where the process is more difficult for infants.) The best estimate, from Joan Heifetz Hollinger, a professor at the University of California-Berkeley School of Law, is that as many as 500 infants, most of whom are black, leave this country through outgoing adoption every year.

More than 100,000 thousand children become eligible for adoption in the U.S. in a given year; on average, about 50,000 of these children will be adopted annually.

When it comes to the adoption of black infants, the European market is all demand and America all supply. Social acceptance of single parenthood, the accessibility of contraception, and the legalization of abortion have drastically reduced the number of children available for adoption domestically in much of Western Europe, and U.S. agencies have emerged to meet the demand.

As outgoing adoption processes in other countries have become increasingly unpredictable, the U.S. is ever-more appealing as a “sending” nation. In 2004, there were 45,000 international adoptions globally; in 2012, that number fell to 25,000. While the financial crisis may have depressed overall rates, increased regulation has also had an effect. In response to revelations of deceit, fraud, and coercion in the international adoption market, several countries have tightened related laws in recent years. Ukraine, for example, instituted stricter requirements for the formalization of a child’s eligibility in 2011; South Korea now prioritizes domestic adoption and restricts visas; China has formally reserved the prerogative to reject adoptive parents on the basis of age, marital status, education, finances, weight, physical and mental health, or deformity. And Russia has politicized adoption in its diplomatic sparring; the country passed legislation to ban adoptions to the U.S. that interrupted 1,500 proceedings.

Against this backdrop, the relative leniency and predictability of the outgoing American adoption processes is attractive. Foreign adoptive parents can be almost certain that adoptees have not been illegally separated from capable caretakers, eliminating moral qualms and the possibility of later legal contests. American-born adoptees are also much less likely to have hidden health issues or one of the diseases still plaguing developing countries. Moreover, parents can apply for U.S. citizenship through their adopted children once the children turn 21. And the U.S. makes outgoing adoption easier than its international counterparts in Western Europe. In practice, foreign adoptive parents are subject to the same requirements as most American parents, plus just a few slightly more complicated but surmountable bureaucratic requirements.

Once accredited by the State Department, an agency is merely obligated to make “reasonable efforts” to find a timely domestic adoptive placement before carrying out an outgoing adoption. The Intercountry Adoption Act charges state courts with verifying both that the adoption passes state requirements and that the agency has satisfied the additional outgoing adoption case criteria—i.e., that the agency has tried to place a child domestically, that a home study of the adoptive parents has been performed, and that the receiving country has agreed to permanently accept the adoptee. Adoptive parents then provide documentation of the court order to the State Department to receive a Hague Adoption Certificate or Hague Custody Declaration.

THE OVERWHELMING MAJORITY OF international adoptions involve an infant coming to the U.S. Over the past 10 years, as outgoing adoption has been on the rise, American parents adopted more than a quarter of a million children from Eastern Europe, Asia, and Latin America. By 2000, 13 percent of the 2.1 million children living with adoptive parents in the U.S. were foreign-born. Although it’s impossible to assess the motives behind all of these adoptions, entrenched racial attitudes that discourage white Americans from adopting black American babies undoubtedly played some part.

For the first half of the century, according to the Adoption History Project at the University of Oregon, it was extremely uncommon for a white family to adopt a child of color. But that changed in the 1960s, when white families began adopting black children. From 1968 to 1971, the number of white families adopting black babies tripled, reaching 2,574 in 1971. This prompted a backlash.

In 1972, the National Association of Black Social Workers (NABSW) announced its opposition to transracial adoption: "transracial adoption of an African American child should only be considered after documented evidence of unsuccessful same race placements has been reviewed and supported by appropriate representatives of the African American community.” NABSW President William T. Merritt would later tell a Senate committee, “We view the placement of black children in white homes as a hostile act against our community.”

It seems that the NABSW’s 1972 pronouncement had an immediate effect. That year, white families adopted 1,569 black children; the next year, fewer than 1,000 transracial adoptions took place domestically. The Child Welfare League of America alsoamended its Standards for Adoption Practice. Prior to 1972, the manual stated “racial background in itself should not determine the selection of a home for a child.” After, it read, “children placed with adoptive families with similar racial characteristics can become more easily integrated into the average family and community.” Public sentiment followed: Transracial adoption ground almost to a halt by 1976.

Although race-based matching between potential adoptees and their parents is explicitly illegal for child welfare agencies (or contractors) receiving federal funding, state-funded and private agencies don’t face the same restrictions.

Even authorities barred from race-matching often sidestep prohibitions. “Agencies routinely separate children and prospective parents into racial categories, assign children to racially-matched parents, and hold children for whom there is no racial match available rather than place them with waiting parents of another race,” writes Harvard Law’s Elizabeth Bartholet in the Duke Journal of Gender Law and Policy. Race-matching endures in myriad additional forms, from honoring adoptive parents’ racial preferences to considering “cultural competency” in transracial adoption applications.

The perseverance of race-based preferences is troubling for a number of reasons, not least of which is that black children are less likely to be adopted than white. Any policy—official or not—that slows the adoption of non-white children is a worrying one. More than 100,000 thousand children become eligible for adoption in the U.S. in a given year; on average, about 50,000 of these children will be adopted annually. Rough math finds a troubling truth: Approximately 46 percent of black children awaiting adoption were placed in 2012, compared to 58 percent of eligible white children over the same time period.

It can be argued that outgoing adoption is an indirect consequence of the commoditization of adoptees in the American market: White children are, in these terms, more “valuable,” and there is, as now-judge on the Seventh Circuit Court of Appeals Richard Posner once put it, “a glut of black babies.” Foreign prospective parents, it seems, appear less concerned with a child’s race than American parents; in some countries, international, transracial adoption has become “the norm.” One legal scholar explicitly champions outgoing adoption as a “win-win” for black adoptees, arguing that they benefit when we allow less racist countries to adopt children of color. A CNN opinion piece took a more personal but ultimately similar view, claiming many birth mothers placing children for adoption abroad are motivated by the desire to give a child of color the chance at a life less affected by racism.

WITH TWO SUBSTANTIVE SHIFTS in policy, the U.S. could reshape its domestic adoption market. Reforms should bar all adoption agencies from race-matching practices and remove barriers to adoption based on marital status, gender, and sexual orientation.

The theories and policies that govern American adoptions are out of date. The malleable “best interests” standard that animates much of U.S. policy—and is codified in statutes concerning “custody, placement, and other critical life issues”—is open-ended and frequently misapplied. As Northwestern University School of Law professors Annette Appell and Bruce Boyer argue, this ambiguous language poses the greatest threat to “families whose racial and economic status already place them at great risk of destructive state intervention.” The “best interests” standard requires officials to make and enforce moral judgments about what a family should be. The result, one court warned, can amount to social engineering.

Social acceptance of single parenthood, the accessibility of contraception, and the legalization of abortion have drastically reduced the number of children available for adoption domestically in much of Western Europe, and U.S. agencies have emerged to meet the demand.

Indeed, this “best interests” standard has been used by state and private adoption agents to dismiss single women and men, and gays and lesbians, as prospective parents—and to justify prioritizing heterosexual couples. The bias against single men is especially unfortunate given the greater willingness of men to adopt older boys. (The average age of a child waiting to be adopted hovers around eight years old.) Gay and lesbian prospective adoptive parents face particularly intractable discrimination. Anti-gay advocacy organizations, such as the Christian Research Institute, and purported academics called by states to testify in favor of laws restricting gays from adoption, claim that the adoptive children of these same-sex couples are imperiled, more prone to risky behaviors, or likely to be the victims of pedophilia—despite ample evidence to the contrary. Some states legally bar LGBT people from fostering or adopting. Variations on these anti-gay state laws and rules have generated high-profile legal battles: An Arkansas woman barred from caring for her own granddaughter; the foster fathers of two Florida boys denied the right to adopt their sons after six years of foster-parenting.

There are considerable economic benefits in broadening parental eligibility for domestic adoption, most notably reducing the long-term costs of foster care. “Annual state and federal expenditures for foster care total more than $9 billion under Title IV-E of the Social Security Act alone,” according to a Brookings Institute study. A child who’s been adopted instead of remaining in institutions or being shuffled among foster care placements is more likely to achieve greater earning potential. Estimates of the “net benefits to society” range from $150,000 to $300,000. One Yale economist’s statistical analysis shows that if domestic adoption became a viable option for same-sex couples nationally, the number of children adopted domestically would rise by at least six percent. Should things go in the other direction, there would be detrimental economic effects: A national ban on adoption by same-sex parents would cost the U.S. foster care system as a whole $130 million annually, according to the Williams Institute, a think tank at University of California-Los Angeles Law.

But there is another, less-obvious benefit to ending discrimination in domestic adoption: Hundreds of children who might otherwise be sent abroad through outgoing adoptions would experience the full rights and benefits of American citizenship from birth onward.Any child born in the U.S. is an American citizen, but outgoing adoptees are treated very differently from other Americans; adoption agencies and birth parents get to determine whether and how these children realize their citizenship for the first two decades of their lives. Despite retaining American citizenship, foreign-adopted American children growing up in Toronto or Amsterdam instead of Tallahassee or Atlanta have to “opt in” to exercise U.S. citizenship. Some never will; others may do so only at significant cost, arriving in the country without cultural ties or social networks. Although they do not face legal barriers to entry and residency, socio-cultural factors may put them at a disadvantage. The spirit of equal protection, too, is absent: The children who are disenfranchised in this way are almost all black. To deprive American children of their citizenship and residency in this country seems to violate the spirit if not the letter of the Constitution.

WHILE ANYTHING SHORT OF a ban on outgoing adoption means birth parents will still be free to choose foreign over domestic adoptive parents in private adoptions, encouraging transracial adoption and prohibiting agencies from discriminating against single and gay parents would almost certainly increase the number of domestic adoptions. Reforms to prohibit discrimination by public agencies and promote transparency could even nudge a few parents who would otherwise use a private agency, where demand exceeds supply, to adopt a child from foster care. Reforming adoption laws in the U.S. will change important norms surrounding who can adopt and be adopted.

Biological parents who would otherwise believe a child’s chances for a successful adoption in the U.S. to be low might reconsider a domestic placement; potential adoptive parents who would otherwise seek to adopt from abroad or use artificial reproductive technology could have confidence in the adoption process at home. These slight modifications to our domestic market might result in birth parents choosing to allow these children to be adopted into loving homes in the U.S., allowing more children to enjoy the full benefits of American citizenship.

Yet if the U.S. system cannot be fixed, outgoing adoption may become a favored solution: Jane Turner asked, “Wouldn't it be interesting to look at the possibility of non-U.S. residents adopting children from the foster care system?”

There are those who believe, like Turner, that outgoing adoption “would be a great opportunity to place kids who would otherwise be in the foster care system.” And she may be right: If the choice is between outgoing adoption and lingering in foster care, no child awaiting adoption should be denied the opportunity to be placed in a loving home based on parents’ nationality. Especially if the U.S. can’t fix domestic adoption, her reasoning makes sense. She tells me, “If you keep a child's best interests in mind, you think it could involve children in the foster care system leaving the country.” Already, she says, she knows of one private agency in Pennsylvania that helps Oklahoma child welfare services place children in Europe.