Academic journal article The Yale Law Journal

Private Race Preferences in Family Formation

Academic journal article The Yale Law Journal

Private Race Preferences in Family Formation

Article excerpt

R. Richard Banks, The Color of Desire: Fulfilling Adoptive Parents' Racial Preferences Through Discriminatory State Action, 107 Yale L.J. 875 (1998).

Richard Banks's article The Color of Desire(1) questions whether private racial preferences for same-race children, and state agency practices accommodating and encouraging such preferences, should be accepted as legitimate. Why are so many people so ready to assume that it is natural, and appropriate, to think in racial terms in the intimate family context? I agree with Banks that it is important to question this assumption. I agree that there is a connection between these private racial preferences and the public racial preferences that are generally condemned as "discrimination." I agree that private racial preferences are not inherent, unalterable conditions of humankind, but rather products of our social conditioning. And I agree with Banks that it would be good to take steps to change the way people think about race in the family context. This is an important part of why I have long advocated elimination of state-imposed barriers to transracial adoption,(2) and why I have argued that the state should not exercise any preference whatsoever for placing children with racially matched families.(3) Such policies not only prevent the formation of transracial families, but also condition people to think badly of racial intimacy.

But if we are to think seriously about the problem of racial preferences in the intimate family context, we need to took at the arenas in which these preferences are operating most significantly(4) and to address decisions about romantic and sexual relationships, marriage, traditional procreation, and the production of children through reproductive technology and surrogacy arrangements.

Banks's article focuses on an oddly limited part of the relevant terrain: private preferences in adoption only, and only as facilitated by the state. Private preferences, however, are conditioned by public policy in the entire family-decisionmaking arena, not simply in adoption. Public policy encourages the creation of same-race families by a multitude of laws and practices. For example, states "facilitate" private race preference when they license marriage partners without inquiry into the role race played in partner selection. Our society encourages racially matched parenting through employment and health insurance policies that subsidize procreation, through constitutional doctrines that protect the "right" to procreate, through free market policies that allow the purchase and sale of sperm, eggs, embryos, and surrogacy services, and through social conditioning that puts a high value on parenting genetically related children. At the same time, our society discourages adoption through restrictive regulation, making adoption expensive while failing to provide the financial subsidies that we accord procreation, and stigmatizing adoption as a second-class form of parenting. And in discouraging adoption, we discourage transracial families, because the children in need of adoptive homes here and abroad are, overwhelmingly, non-Caucasian, and the adults seeking to become adoptive parents are, overwhelmingly, Caucasian.

By trying to force a fit between his racial theory and the transracial adoption debate, Banks mischaracterizes both the nature of that debate and the nature of the problem facing black children. He describes the debate as if it involved a group of whites defending transracial adoption and facilitative accommodation arrayed against a group of blacks defending race matching. He portrays the white position as based on a classic liberal conception of the autonomous individual, and as placing greater value on the white parent's autonomy interests than on the black child's equality interests.(5) He claims that the white position promotes white group interests while the black position promotes black group interests,(6) although he says the white position is purportedly race blind. …

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