Adoptions rattled an entire culture. Children stripped of their cultural identities, alienated from extended birth families. Biological parents not understanding the consequences of adoption or getting a chance to consider alternatives. The risk that an entire way of life was vanishing.

Editor's Note

Forty years ago, the same perils faced by the Marshall Islands afflicted a population far closer to home — Native Americans. State child welfare workers were forcibly removing children from their families. As many as 35 percent were fostered or adopted by families with no connection to their culture.

In the Marshall Islands, babies are not being taken away by government agencies. Instead, private lawyers arrange black market placements with U.S. families in exchange for birth mothers’ plane fare and living expenses.

But with both groups, critics have questioned whether birth parents are truly consenting to the adoptions and whether they understand that the child will be gone forever.

In the case of Native Americans, Congress passed a law, the Indian Child Welfare Act of 1978, to try to address some of the problems. The ICWA promotes the placement of Native American children within the community and mandates that families get intensive services to prevent abuse and neglect and keep children in their homes, according to the National Indian Child Welfare Association.

The law also tried to assure that when parents consent to give up a child, the decision is truly voluntary, said Connie Hickman Tanner of the National Council of Juvenile and Family Court Judges.

One provision, for instance, assures that efforts have been made to keep the family together — or at least keep the child within the tribe — before resorting to a foster placement or adoption. Another requires birth parents to give their consent in writing to a judge, and for the judge to certify that the consequences were fully explained in English or interpreted into a language the parents understood.

Consents cannot be given within 10 days of the birth. And the parents can withdraw consent at any time before a judge issues a final decree. The law even allows parents who allege fraud or coercion within two years of the adoption to ask a judge to return the child.

Marshallese parents who do private adoptions, by contrast, are subject to the laws of the state where the adoption takes place. Most state laws are not nearly as protective.

“This is the kind of thing you’d want for this population,” Tanner said.

Now the ICWA is under siege. In October, a federal judge in Texas declared the ICWA unconstitutional, alleging it discriminates against couples who are not Native American trying to adopt Native children. It’s uncertain whether that decision will be upheld on appeal, or whether judges in other districts might reach the same conclusion.

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