Thursday, August 4, 2011

A Thought Experiment

One of my favorite tools in my teaching arsenal is the hypothetical.  It's not like I invented it -- it's a standard technique in law school teaching.  We read real cases with real facts, and then I start the "what if" game -- what if this fact was different? what if that fact was different?

So let's try it with these ideas often floated when a family adopts a child who was kidnapped, some of which you'll find in the comments to my post about the Guatemalan case:
". . . the only parents she's ever known. . . ."

" . . . kidnappers can't be rewarded. . . ."

". . . but the APs didn't do anything wrong. . . ."

". . . best interest of the child. . . ."
Consider this:  In a fit of temporary insanity, a woman kidnaps her cousin's newborn daughter and then sets fire to the nursery.  When the fire is finally extinguished, investigators conclude it was an accidental fire and that the newborn's body had been completely incinerated in the fire. The cousin moves away, and passes off the baby as her own.  Her husband has been deployed in the military for the past six months, so he has no idea the child is not his and his wife's.

The mother never believes her daughter died in the fire.  Seven years later, when visiting her distant cousin for the first time in seven years, she comes to believe that her cousin's child is actually her child.  DNA testing proves her right.

The cousin has been an exemplary mother and the child has thrived in her care.  The child loves whom she has believed for seven years to be her mother and father.  The prosecution, believing the cousin was insane at the time of the crime, and no longer insane, chooses not to prosecute, so she will not go to jail.

So, should the child be returned to her biological mother who is a stranger to her?  Should she remain with the only parents she has ever known?  Shouldn't her biological mother want her to remain with the cousin since she will be traumatized by losing the only family she has ever known?

If the insanity defense doesn't persuade you that the cousin isn't blameworthy, what about the cousin's husband, the child's "only father she's ever known?"  He had no idea "his" child was not his child.  He has decided to divorce his wife so he can raise his daughter alone, without the influence of a kidnapper in their lives.  Should the child remain with him?  He did nothing wrong, after all. . . . And does wrong-doing by the parents matter, if the test is best interest of the child?

This hypo is, of course, based on a real situation, modified somewhat for my nefarious purposes!

So how do you solve this conundrum?  If you were the judge, who would you say gets custody of this child? What if it was the real situation (kidnapping, fire, no temporary insanity, kidnapper likely to be jailed, nothing about an ignorant husband), without my modifications?  Do my modifications make a difference? Does this change your initial impressions (if any!) in the Guatemalan case? Are you thinking now you'd love to go to law school?  Or are you now happy that you never even considered it?!


Karen said...

As I said before, what is legally right and what is RIGHT for the child's wellbeing might not go hand in hand.
Another "thought experiment" might be to evaluate a child's attitude, mental condition, and welfare after being loved, then taken away after 5 or 6 years. Many children do not thrive in that kind of scenario after being placed with new parents.
And for those nay sayers, I have given it thought, and if I were not the aparent, but the birth parent, it would be very sad, but I would always want what was best for my child first, not myself.
Finally, to answer MeiLings question, I do not believe the child "knows" the birthparents, in the same sense as knowing someone whom the child has interacted with for many years. A child might feel a sense of knowing the birth parent, but not in the same way as I stated earlier. I doubt a child can pick a birthmother out of a crowd, but you can bet she can pick out her parents from a crowd after "knowing" them and being with them for 5 or 6 years.

Karen said...

I hope the perps are brought to justice! What I do NOT understand, is, WHY do people think they need to traffic children into adoption, when there are SOOOO MANY children already in orphanage settings??? Honestly, it does not make sense to me...and WHY would an orphanage pay for this practice when they have babies coming to their doors legally? I believe it happens, but I cant grasp a thought as to WHY it happens, when there are already so many children in need of homes. In most IA scenarios, the baby/child is not turned down for adoption if it isnt cute enough, or smart enough, or giggly why is abduction for IA even consdered? I really don't get it.

thewonderfulhappens said...

First of all, I still can't even decide in my mind what the right thing to do in the original case is. It is simply horrible for all parties involved.

I really don't think the hypothetical case compares that well. Because the mom in the hypothetical knowingly committed a horrible crime. Whether temporarily insane or not, I'm not sympathetic about that. Secondly, the child in that scenario being returned to her birth mother would not be experiencing a drastic change in culture or language. So in your hypothetical, I would say that the child be returned to the birth parent without question. Yes, it would be hard, but I think that she would recover and it would be the right thing to do.

Clearly in the actual case, the child is being returned. I simply hope that the relationship stays very, very open. It will be heartbreaking for everyone involved.

Anonymous said...

I always find the fluid opinions of adoptive families puzzling. They will argue that after six years the child should stay with the adoptive family, but then turn around and allow a ten-year old child to be ripped from the only family she has ever known to be adopted to them. They will state emphatically that they would protect "their" child from being returned "till my dying breath", but then insist the same thing if someone else kidnapped their child from them.

The life of a child is more important than five or six years. In the Guat. case, it is clear that the child should be returned. But the adoption community responds with many excuses why that shouldn't happen, not realizing that if the tables were turned, they themselves would accept none of them as valid.

Momma C said...

Thank you anon. Very valid points. And to the point that the mom in the hypothetical cases- there is some evidence that the actual adoptive mom was at least complicit in the crime. There is some pretty significant evidence that the adoptive family KNEW the child had been fraudulently relinquished and that they (the APs) circumvented that "problem" by finding an attorney would was able to get the baby declared abandoned to avoid dealing with the fact she hadn't been legally relinquished. So they certainly knew that they were getting involved in a situation that was questionable at best and illegal at worst

Anonymous said...

To put the shoe on the other foot, imagine a 5 or 6-year-old child in Guatemala, or say, China. The child does not know his or her birth parents, but does know his or her foster parents, orphanage nannies, etc., and is at least surrounded by people who look like him/her and speak a language that he/she has been speaking since birth. One day a white American family who looks nothing like the child and does not speak the language shows up to remove the child from these familiar surroundings. Sure, the child is gaining a "family" and will have better material circumstances and more attention, but s/he will experience trauma nevertheless. The child may have severe issues with adjustment and attachment. Yet many people see nothing wrong with this scenario. Of course the return to the birth parents will be traumatic, and the child will likely need to relearn his/her native language. Trauma is a two-way street. Why is it okay to traumatize abandoned children in the process of adoption but not okay to traumatize them by returning them to a family who never abandoned them, not to mention looks like them and shares a bond that canNOT be erased by adoption. It is not a black and white situation, however, and hopefully care is taken to ensure the child's transition and to allow the child to remain in contact with the adoptive parents.

Stealing other people's children is not right, no matter how you try to sugar coat it.

Anonymous said...

Karen, you may be interested in this recent NYT article on child trafficking in China, which sheds some light on your query:

Anonymous said...

"What I do NOT understand, is, WHY do people think they need to traffic children into adoption, when there are SOOOO MANY children already in orphanage settings???"

When faced with two contradictory lines of evidence, the first step is to examine one's assumptions. In this case, there is clear evidence that orphanages are buying/stealing children to adopt, so we KNOW that is happening. Which forces us to go to our underlying assumption which is in conflict with these facts: That the orphanages have so many kids they shouldn't need to pay money. After all the evidence that has been brought forth over the years, it is clear that this assumption was itself deeply flawed.

Sarah said...

Another disconnect in adoptive parent thinking is something I see exhibited on the WSJ Red Thread blog post linked in the latest post on this blog.

One man calls a child in Guatemala "his son", even though the adoption has not gone through, and that he has known this child, visited this child since he was 5 months old, and that he and this child now have a bond "that can never be broken".

Well...if that's the case, then why wouldn't this girl, who was kidnapped at two, have a bond with her real parents "that can never be broken"?

Seems to me adoptive parents think they bond THEY believe exists between themselves and the child they've adopted can never be broken, but don't think the same about the bond between the child and his or her real parents.

Stealing other people's children is wrong. Period. There are NO justifications for it, and there are NO justifications for NOT returning stolen children to their real parents. Ever. Period.

Karen said...

Gotta love the "anonymous" AP bashing. Nice.

Momma C said...

Well as an AP of 2 kids adopted internationally (from 2 different countries) I not only don't feel bashed but I agree with Anonymous

zoe said...

I am one of the anonymous posters, not hiding but posting anonymously because I am not a blogger. Now I am using my name to clear up confusion. FYI, I am the one who posted the link to the NYT article and who made the post above it. The other anonymous is someone else.

Anyway, guess what, I'm an adoptive mother two twins from China, so please don't accuse me of AP bashing. If someone kidnapped my kids (whether my two "bio" or my two "adopted") and sold them on the black market and then some other unknowing AP adopted them, you can bet like hell I would be fighting to get them back, as I'm sure all APs *and* birth parents would. A parent is a parent, whether by adoption or birth.

It's a sad situation for all. Unfortunately, this is the ugly underbelly of international adoption. But I still stand by my statement that child trafficking is NOT okay and should not be swept under the rug.

Anonymous said...

So many predictable responses here and so many more opportunities to attack the adoptive community.

Because clearly though ALL(???) AP's are guilty of sweeping, selfish and arrogant aims and claims(geesh), this one family, who may OR may not have been duplicit in this horrendous tragedy, must then also represent us all. Of course.

Someone puzzled why AP's couldn't understand a 2 year old having a connection with their Birth parents....ummm...maybe becuase that information did not come out in the original post, so most, if not all presumed the child to have been taken in early infancy, having spent no time with her Guat. family. No conspiracy, just missing information!

Then someone underscores why one or two posters presume the worst in the birth family: ummm...maybe for the same reason so many (more!) commenters presume this U.S. family is "dirty".

Finally, for those that have not done an IA, its complicated...documents, court preceedings, etc. are in a foreign language and often you are at the mercy of the staff you have entrusted. YES, its up to us to do our due diligence and investigate and if nothing else follow our "guts". BUT guess what? Even China, long thought to be above reproach has been found with multiple ethical that the fault of the AP's, the agencies, the respective governments??? Who then?

This American family most likely had no idea. Frankly at the time this happened female infants were readily availible for IA. in Guat.(wait time were quite short then) Why go to such lengths to cover up/steal a then almost preschool aged child? Why not go through regular channels?

Something does not add up here to me.

And finally for Mei-Ling, who openly wonders why there isn't more understanding and uproar when an older child is placed for adoption from overseas. Maybe becuase that child is availible for adoption at their own governments' and sometimes birth families behest? Maybe becuase they will age out of an institution or Foster care situation and their guardians see IA as a way for a future? Maybe because, despite the hardships, initial transitional challenges, ongoing losses, many of these children WISH to be adopted. Don't believe it? Well, visit the older kids in a Russian Orphanage and ask around....or better yet, sit with them and they will likely ask you themselves to find them a family. Some will beg.

The botton line is this case is not representative of the whole and this discussion got way off base...again. Its a hard one for sure.....gut wrenching. And for the record if this was our adopted child it would feel like a slow death for us. Maybe many of you don't care, but that's a fact. Just like it must have been a slow death for this child's birth family. At least the birth family will now know she is alive/well and en route home. At least the adoptive family will know she is going (back) to a loving home.

No, I agree with whoever said its not about "winning". I don't see much winning here....losses for all, sadly. Most of all for the child, whom I guess no one was looking out for.

P.S. Also, why on earth was a then 2 year old playing outside alone???? I mean, cultural differences aside....yikes!
**And no NOT implying the kidnapping was justified because of that lack of oversight...but again, doesn't add up to me!

Mei Ling said...

"maybe becuase that information did not come out in the original post, so most, if not all presumed the child to have been taken in early infancy, having spent no time with her Guat. family. "

Do you believe mothers and infants bond in-utero?

Or are we talking about a foster family?

That's why this whole "the only family s/he has ever known" is such a double standard.

Anonymous said...

@ Mei-Ling,

I just don't honestly know. I have children both through adoption and pregnancy and did I share a bond with the life I nutured for 9 months? Yes, an emotional bond and clearly physical bond.

Did our 1 day old baby recognize me from the nursing staff, grandparents, others? I doubt it....that's hard to say, but its the truth.

And I'm not sure that argument has a place here, in light of the new information shared?(the child taken at age 2) I think its another tangent used to deflect from valid arguments on what you might perceive as the "other side" of the discussion.