Some days I feel like the World's Oldest Mother.
Sometimes the feeling is internal, like when I can't get up without making those old people noises, or when my knee aches and my shoulder twinges and my . . . well, you get the picture. Other times it's external, like when people ask if I'm my kids' grandmother (7 times in the first year I was home with Zoe (not that I'm counting or anything!)). Sometimes its the inadvertent things friends say -- like the friend who complained that her elderly parents couldn't possibly understand something going on in her life, and I realized that her mom was 40 when she was born, just like I was 40 when I adopted Zoe (I take a perverse pleasure in the fact that I was 39 when Zoe was born, even though I turned 40 just 5 days after she was born!All bets are off with Maya, of course -- I was 43 when she was born, and 45 when I adopted her, officially older than dirt). I can just see Zoe and Maya in future years complaining to a friend that I'm too old to understand! Oh, yes, and sometimes the reminder that I'm the World's Oldest Mom comes in something my kids say, like when Zoe wrote, "I hope you enjoy your grandkids," on my last birthday card. Or when Zoe realized I was exactly 40 years older than her: ". . . when I'm 7, you'll be 47; and when I'm 8, you'll be 48; and when I'm 9, you'll be 49; and when I'm 10, you'll be 40-10. . . . "
With 40-10 staring me in the face, I want to talk about parental age and adoption. It's an issue I cover in Adoption Law, together with other adoptive-parent "qualifications" like religion, race and sexual orientation. The legal standard, of course, is best interest of the child, when we look at parental qualifications in adoption placements. The arguments against older parents are pretty well known -- they may not live to raise the child into adulthood, they may not have the physical energy needed to parent, they may not have the mental flexibility necessary to understand "today's youth," the child might be stigmatized with peers and others for having older parents.
With many of these arguments, age is really serving as a proxy for health. We can all name 70-year-olds with more energy than some 30-year-olds we can name, and same goes for life expectancy and mental flexibility. (I have a sneaking suspicion, for example, that Jean Smart, though older than me, is much more physically fit than I am!) Certainly, in the grand scheme of things, the younger you are the more energy you have and the longer your life expectancy is. But we always know some exceptions. Why, you can even take a test to see if your REAL age is the same as your calendar age!
Sometimes when it's hard to get information about an issue, when we don't know if someone fits within the norm or is an exception, we use proxies -- like we use "race" as a proxy for "lower socio-economic status" and "lower socio-economic status" as a proxy for "poor education" in making decisions about admission to college. It may be that you are African-American and the child of an ambassador who attended private schools, or you grew up in a poor area, but went to the only excellent high school in the vicinity, but we can't know the socio-economic status of each applicant, or how good the thousands of high schools in America are, so we use race and/or area poverty as a proxy.
But in adoption, do we need to use age as a proxy? We already gather tons of information about prospective adoptive parents, including health and mental outlook and energy -- the things we really want to know, that we sometimes assume age will tell us. But we can figure out whether someone fits within the norm for their age, or is an exception to the rule. Health can even tell us something about life expectancy, though there are no absolutes on that front. Still, life expectancy is increasing -- life expectancy for women at birth in 1900 was 50.7 years, and in 1997 it was 79.4 years. A 58 year-old-woman can expect to live an additional 24.6 years, long enough to usher a child into adulthood. And we know that even very young adoptive parents can die before their time. Because of that, what we typically want to know of all prospective adoptive parents, regardless of age, is what plans they have for the care and custody of their child if they were to die before the child reached adulthood.
So that leaves us with the stigma, embarrassment, etc., of a child with older parents. It hasn't seemed to occur to my kids yet that I'm older than the average bear, though I'm sure it will eventually. I admit, I sometimes feel weird as the menopausal mother of a kindergartner, but I can also say I'm not the only "golden oldie" on the pickup line! And that stigma argument is the same one used to deny adoption on the basis of sexual orientation -- after all, won't Johnny be embarrassed to have gay parents? It's also one of the arguments against transracial adoption.
Yes, there's this long-held belief that adoption should try to replicate the "natural family." The adoptive family should look just like a biological family -- that was the motivation behind the old "matching" rules, where child and adoptive parents were matched not just by race, but by hair color and texture, skin tone, eye color, even height and weight. Replicating the natural family would also mean only couples capable of procreating "naturally" would be suitable adoptive parents. Gay couples wouldn't fit in this requirement, neither would transracial adoption. And being too old to reproduce would also disqualify a family from adopting under this rubric. I'm not sure I'd want to limit adoption to what "nature" could create -- as a single mom, I wouldn't qualify, either, not having experienced any visits from God or gods to impregnate me!
The "nature" argument comes up with assisted reproduction as well. Take a look at this interesting article, Monstrous Mothers: Media Representations of Post-Menopausal Pregnancy. The world's real oldest mother, who gave birth at age 66 with the help of donor eggs, died at the age of 69 last summer. That's kind of the poster child for "too old," right? She left her 3-year-old twins orphaned. Yes, she might have lived to the ripe old age of 101, as her mother did, but the odds were against it, right? Just like the odds would be against a 66-year-old adoptive parent, right? What she did, and what older adoptive parents do, is "unnatural."
My problem with this argument is that it disproportionally affects women. Nature allows the World's Oldest Father to procreate at age 90, and media representations of older fathers wouldn't dub them "Monstrous Fathers," hmm? What we buy instead is the meme, "I'm a much better father now than before, because I'm older, more settled, and have more patience," usually said while the child is in the background jumping on the couch (I always think it's exhaustion, not patience, that allows him to ignore the bouncing kid!). I know a man who had a child with his (of course much younger) wife at age 66, the same age as the World's Oldest Mother, and no one even blinked. It certainly wasn't a cause celebre in the media, with people screaming, "There oughtta be a law!"
"So? Nature is unfair," I hear you cry. But who says adoption has to follow nature? Interestingly enough, the Evan B. Donaldson Institute has a recent report out suggesting that nature -- at least when assisted -- should follow adoption: Old Lessons for a New World: Applying Adoption Research & Experience to Assisted Reproductive Technology. But in adoption, we've moved beyond matching, beyond the idea of replicating the "natural" family, haven't we?
Most courts that have looked at the age factor in adoption have said that the age of prospective adoptive parents is relevant in a best interest of the child analysis, but that it cannot be a SOLE or DETERMINATIVE factor in adoption placement. In the case we study in class (registration required to view case), the prospective adoptive parents were selected by the birth mom, had parented the child placed with them as a newborn for 2.5 years at the time of the adoption, and were aged 54 (adoptive mom) and 70 (adoptive dad) at the time of the adoption. The trial court denied the adoption based solely on age, and the appellate court reversed, and directed the trial court to enter an order approving the adoption.
I'm not willing to accept categorical statements -- "you're too old to parent a child," said to adoptive parents, or "you're too young to parent a child," said to a birth mom to induce relinquishment. Adoption, more than just about any other endeavor in human life, is about SCREENING. We have doctors, social workers, government officials and judges all judging the fitness of adoptive parents. We don't need proxies, we don't need single-factor tests. We can carefully examine on a case-by-case basis the suitability of a particular adoptive parent. We might get it wrong, I don't doubt that, but I can't help but believe that individualized assessments are better than absolute rules.