Why EACH is Needed

Many people are surprised to learn that a child adopted by an American family is not accorded all the same rights and privileges under some state and federal laws as a child born into the same American family. Although many of the differences are more prominent when the child is adopted from a foreign country, differences also occur between domestically adopted children and children born into the family.

A child born to an American citizen abroad, for example, is considered a citizen from birth under U.S. Code Title 8, Section 1401. Parents of a birth child simply take their marriage certificate, proof of citizenship and the child’s birth certificate to the American Embassy and walk out with an American passport for their child and a Consular Report of Birth, both of which constitute proof of American citizenship. That child can then travel home immediately without any further questions asked.

Under adoption law, once a child is fully and finally adopted, that child is to be treated as the “natural issue” of their adoptive parents. However, this pre-imminent tenant of adoption law is not honored where foreign adoptions are concerned. Instead, when an American citizen adopts a child from a foreign country and is given a full and final adoption decree from that country, our laws require that this child be treated as an “immigrant” to the United States and the family has to apply for and receive an immigrant visa for their child to come home with their parents to America.

Since they are treated as “immigrants,” the adoptive parents have to again prove that they can care for the child financially. This is required even though they have already done so much earlier in the adoption process in order to even be approved to adopt a foreign child. The child then has to undergo a medical evaluation to make sure they carry no contagious diseases such as HIV that might disqualify them for entry into the U.S. and to make sure that all vaccinations are current. Such an examination is not required of a biological child and moreover, vaccination in the United States is safer and more reliable than in other countries. Next, the adoptive parents have to fill out paperwork and pay a fee in order to acquire a visa for their child to enter the U.S. as a permanent resident alien.

Depending on the type of visa an adopted child is given (an IR-3 visa where both parents have seen the child prior to the adoption or an IR-4 visa where the parents did not see the child prior to the adoption) once the child enters the U.S. on an IR-3 visa, he or she becomes an automatic U.S. citizen thanks to the Child Citizenship Act of 2000. Thus, all the paperwork, time and expense that the family goes through to get their foreign adopted child an immigrant visa is simply for an international plane ride home. For those children who enter on an IR-4 visa, they become automatic citizens once they are readopted in the United States. Even then, some government offices and agencies do not recognize the adopted child’s citizenship unless his or her parents pay for and complete paperwork to obtain a Certificate of Citizenship.

Another inequity that occurs for children born abroad and then adopted by an American family is that such children are not afforded the opportunity to run for the highest office in the land, the office of President of the United States. Article II, Section 1, of the Constitution states that “no person except a natural born citizen” shall be eligible to the Office of President. Whatever the rationale was over two hundred years ago, such a prohibition is irrational today as applied to children of American citizen parents. Under current law, even though the child is raised in the United States by American citizen parents, they are ineligible to be President because they were not born into the family but were adopted. All children of American families, be they adopted or born into the family, should have the same and equal opportunities to serve their country, including serving as Commander in Chief.

Most other countries in the world do not treat foreign adopted children of their citizens as “immigrants.” They are treated as children of citizens and treated as such immediately upon the issuance of a full and final adoption decree. The United States is one of the few developed countries that treats adopted children of their citizens as immigrants. It is neither just nor logical to differentiate between biological and adopted children of American citizens born abroad. These children deserve equal treatment under the law.

Children who are adopted domestically by American families also encounter different treatment than biological children. Adoption in the United States is governed by state law, so laws vary from state to state. Many inequities between adopted and biological children have been eliminated in most states, such as laws that prevented adopted children from inheriting from their adoptive parents. However, inequities still emerge on occasion.

Several years ago in Wisconsin, for example, the legislature had to change a law regarding their preference provisions for relative adoptions. Wisconsin’s statute read that if a person was “related by blood,” they would be given preference in an adoption proceeding of a related child. The inequities in this law became apparent when an adopted man filed for custody of his niece after his adopted sister died of cancer and her husband was killed in a car accident. The judge ruled in that case that the adopted brother could not be given “preference” under the preference provisions of the state law, because he was not “related by blood” to his niece. Custody was given to the niece’s father’s second cousin.

These are just a few of the many unjustified and unfair differences in treatment and opportunities that are provided to adopted children of American citizens versus children born into such families. Such inequities and disparate treatment should not exist in America, the land of opportunity. EACH's mission is to advocate for changes to law at both the state and federal level where necessary to provide equality for all children of American citizens, whether adopted or not.