Before the mid-nineteenth century there were no laws in the United States governing transfer of parental rights over children. Legal guarantees for such transfers, sought mainly to insure lines of inheritance, were heard on a case-by-case basis. They were awarded by legislatures (as private acts) to whom such appeals were brought. The majority of other instances where rights over children were transferred usually involved the movement of children from poor to better-off families. Three mechanisms for such transfers-indenture, apprenticeship and guardian-ship-met what need was recognized until the second quarter of the century.
Then a series of circumstances increased the number of family-less children: cholera epidemics and the dislocations of families in a society undergoing rapid transition from a rural agrarian to a more urban, industrial-based economy led to an increased number of children needing homes. This increase produced greater community awareness of child welfare problems. Responses came in the form of both public (almshouses) and private (orphanages) institutions. But increasing criticism of the squalor and generally poor conditions of such institutions led to a preference for family-based care.
This turn to greater reliance on family-based care created a pressure on the courts to replace the earlier private rulings with a more general statute. The first significant legal benchmark in adoption in the U.S. was a Massachusetts law in 1851. This law required that there be no contact between the adopted child and the biological family. The presumption that biological parents were inadequate followed from the self-evident meaning attributed to agency guardianship, the source of most children available for legal adoption: they were orphans; their parents had been compelled by the courts to surrender them; or they had been voluntarily surrendered. However there was no requirement to maintain the privacy of the legal proceedings or records of these transfers. The legal requirement to do so first surfaces in the next major legal milestone in the American adoption history: the 1917 law in Minnesota.
This law was a response to the increasing numbers of independent adoptions that were eluding the protective services of the courts. It set in place many of the key features of adoption practice that still remain today: a social investigation by a court-appointed staff member of the State Children's Bureau; a trial period of six months; and control of advertising for potential placements. A key element of this law was the provision that court records be protected from public inspection in order, so the thinking went, to fend off the possibility of third parties being able to use information about the adoption to the family's disadvantage. Importantly, this protection did not exclude the principals to the adoptions from inspecting the records.
Over the next two decades most states adopted very similar provisions. During this period the number of adoptions remained relatively small compared to what would turn into a significant increase in the post-war years.
In the period prior to World War II, there was a shift in the personnel who ran the maternity homes that provided the infants for agency and legal adoptions. Now, instead of volunteers, the staff included professional social workers. This professionalization of the care of unmarried mothers ultimately had important implications for the adoption principals' access to records. The religiously motivated volunteers who had previously run these homes believed the unmarried mother's "fall" required redemption and she and her child were best served by remaining together. They encouraged unmarried women to keep their children. Thus, very few of these children were available for adoption.
Next month's article will trace the impact of the newer social worker's theoretical underpinning and its impact on adoption practice.