The Volokh Conspiracy - "Muslim Converts 'Not Islamic Enough' for Their Adopted Son to Have a Brother":

That's a headline from a Times (London) story:

When Robert and Jo Garofalo decided they wanted to adopt a child in Morocco they knew it would not be easy. Although the law in the Muslim state had been changed to allow foreign adoptions, the couple were required to convert to Islam first[, which they did]....

So when, earlier this year, they approached Surrey [U.K.] social services for approval to adopt again from the same Moroccan orphanage, they were surprised to discover that they would have to go through the whole process again. The couple were particularly concerned that, in order to assess Samuel's "attachment" to them, he would have to be monitored and even filmed while playing.

Equally disconcerting was that even though social workers indicated in an initial report that they would be prepared to support the second application, the couple were left with the impression that they were being asked to do more to show they were living a Muslim lifestyle.

"The Moroccan orphanage felt it would be good for Samuel to have a brother and were very positive and encouraging. They were happy with the way we dealt with Samuel's cultural and religious needs," Mrs Garofalo, a 40-year-old actress, said. But this was not enough for Surrey, who made clear that an assessment would go ahead only if the couple proved that they were making enough effort to live a Muslim lifestyle.

In their report, social workers noted that although the couple had stated their religion was Islam "there is no outward sign that this is a Muslim family ... Joanne and Robert are aware that the socio-religious element is an aspect of Samuel's identity and heritage which this agency takes very seriously." It recommended that "particular attention be given to sharing techniques and strategies with Joanne and Robert that will enhance their children's sense of identity and legacy, particularly in view of their very public statement they made deciding to convert to Islam in order to adopt"....

Surrey County Council said that children's services were under a legal duty to conduct an assessment on how the couple's son was doing, and their efforts to promote his Muslim faith, before exploring a second adoption.

"The couple approached us with a view to adopting the second child and we told them that by law we had to do an assessment to find out how well the adopted Muslim child from Morocco had settled with them in this country, the security of his attachments and the likely impact on him of having a sibling with complex needs in the household. We also told them the assessment would look at their efforts to promote the adopted child's religion and culture. After finding out these legal requirements, they decided not to continue the process." ...

A few thoughts:

1. It seems to me there is one important reason why we'd want to make sure that adoptive parents raise the child in the birth parents' faith: To encourage the birth parents to put their children up for adoption, by removing or mitigating one reason for them not to do so (a fear that the child will be raised in a way that endangers the child's salvation). And that's true even if we don't share the parents' beliefs; so long as such birth parent fears are real, they may deter adoption placements that would otherwise happen, and that would help the child, the adoptive parents, the birth parents, and the taxpayers. It's true that there might be some opposite effects, if children end up being unadoptable because of long delays caused by waiting for just the right religion. But I suspect that the effects will quite likely be positive.

2. For international adoptions, there may also be similar reasons focused on the belief system of the birth parents' country. If Morocco stops allowing adoptions to Britain or the U.S. because there's no assurance that the child will be raised Muslim, then that might materially diminish the quantity of win-win-win-win adoptions.

3. The trick comes with policing such a system. This is especially in the U.S., where the First Amendment generally bars the government from even deciding who's really one religion or another, much less how well someone is teaching the child a particular religion. But I would think there should be similar concerns, even if mostly policy concerns and not constitutional concerns, in other liberal and religiously mixed democracies. I would be inclined to say that the solution should be some provisions through which the parents (or the parents' countries) can delegate the religious judgment to private entities. Much as Orthodox Jews who insist on kosher food rely chiefly on the certification marks provided by private religious organizations or individual rabbis -- marks whose authenticity is assured by religiously neutral trademark laws -- so a mother who wants to give a child up for adoption could provide that the religiosity of the child's new home be vetted by some religious organization of her choice.

There would have to be limits on this aimed at protecting the child's best interests: For instance, the organization shouldn't be allowed to demand that the child be taken away from the adoptive parents after the adoption is final, even if the adoptive parents leave the faith. But at least the initial screening could be conducted by the private religious organization, and perhaps the organization could even enforce certain requirements through the threat of some moderate damages liability.

4. But in this case, it seems to me that the UK authorities aren't really trying to make sure that the birth parents' wishes, or even the Moroccan authorities' wishes, are satisfied. There's certainly no sign in the Times story that the UK authorities are focused on such matters, or on the long-term viability of international adoptions from Morocco to the UK. And it seems that the Moroccan authorities are happy with keeping the Muslim conversion strictly pro forma.

Rather, the rationale seems to be that an Islamic upbringing is in the child's best interest, because Islam "is an aspect of Samuel's identity," "heritage," "legacy," "religion," and "culture." And this, I think, is wrong as a matter of morality and sound government policy (and would be wrong in the U.S. as a constitutional matter).

The trouble, I think, is that (a) small children (Samuel was only several months old when he was adopted) don't have "religion" or "culture" or preexisting religious or cultural component to their "identity," and (b) the government shouldn't take a stand on how valuable the children's "heritage" or "legacy" is. Religion and culture is something that children are taught. Identity is something that is formed by those teachings, by the child's innate biological makeup, and by the reactions of peers and the rest of the adoptive society -- not by the religion of the child's birth country.

And whether a child should be raised in the religion of his birth parents or birth country, or raised in a much less devout version of the religion, or in another religion, or raised in no religion at all is a matter on which different sets of reasonable parents can differ. I know of no empirical basis for a belief that the child will be deeply scarred by one decision or another. And in the absence of such an empirical basis, the government shouldn't take the view that one's life, whether adult or young, should be linked to the accident of the child's birth.

Nor does it matter to me that the parents might have been insincere in their conversion to Islam. That strikes me as none of the UK government's business, given that the Garofalos weren't claiming any benefit from the UK government on account of their religion. It strikes me a very hard matter for the UK government to determine in any event. (What if they were sincere and then changed their minds? What if they practice a highly reform version of Islam?) And it strikes me as being of extremely slight relevance to the best interests of Samuel, or of Samuel's potential adoptive brother.

So the Times story, if accurate, is pretty troubling, both based on its particulars -- among other things, there's now one child who's more likely to have to spend more time in a Moroccan orphanage rather than in what seems likely to be a loving family -- and in what it says about the mistaken attitudes and priorities of the English child welfare system. I hope U.S. authorities avoid going down that path, both for First Amendment reasons and for the other reasons I outlined above.

	[Eugene Volokh, October 21, 2008 at 1:06am] Trackbacks "Muslim Converts 'Not Islamic Enough' for Their Adopted Son to Have a Brother": That's a headline from a Times (London) story: When Robert and Jo Garofalo decided they wanted to adopt a child in Morocco they knew it would not be easy. Although the law in the Muslim state had been changed to allow foreign adoptions, the couple were required to convert to Islam first[, which they did].... So when, earlier this year, they approached Surrey [U.K.] social services for approval to adopt again from the same Moroccan orphanage, they were surprised to discover that they would have to go through the whole process again. The couple were particularly concerned that, in order to assess Samuel's "attachment" to them, he would have to be monitored and even filmed while playing. Equally disconcerting was that even though social workers indicated in an initial report that they would be prepared to support the second application, the couple were left with the impression that they were being asked to do more to show they were living a Muslim lifestyle. "The Moroccan orphanage felt it would be good for Samuel to have a brother and were very positive and encouraging. They were happy with the way we dealt with Samuel's cultural and religious needs," Mrs Garofalo, a 40-year-old actress, said. But this was not enough for Surrey, who made clear that an assessment would go ahead only if the couple proved that they were making enough effort to live a Muslim lifestyle. In their report, social workers noted that although the couple had stated their religion was Islam "there is no outward sign that this is a Muslim family ... Joanne and Robert are aware that the socio-religious element is an aspect of Samuel's identity and heritage which this agency takes very seriously." It recommended that "particular attention be given to sharing techniques and strategies with Joanne and Robert that will enhance their children's sense of identity and legacy, particularly in view of their very public statement they made deciding to convert to Islam in order to adopt".... Surrey County Council said that children's services were under a legal duty to conduct an assessment on how the couple's son was doing, and their efforts to promote his Muslim faith, before exploring a second adoption. "The couple approached us with a view to adopting the second child and we told them that by law we had to do an assessment to find out how well the adopted Muslim child from Morocco had settled with them in this country, the security of his attachments and the likely impact on him of having a sibling with complex needs in the household. We also told them the assessment would look at their efforts to promote the adopted child's religion and culture. After finding out these legal requirements, they decided not to continue the process." ... A few thoughts: 1. It seems to me there is one important reason why we'd want to make sure that adoptive parents raise the child in the birth parents' faith: To encourage the birth parents to put their children up for adoption, by removing or mitigating one reason for them not to do so (a fear that the child will be raised in a way that endangers the child's salvation). And that's true even if we don't share the parents' beliefs; so long as such birth parent fears are real, they may deter adoption placements that would otherwise happen, and that would help the child, the adoptive parents, the birth parents, and the taxpayers. It's true that there might be some opposite effects, if children end up being unadoptable because of long delays caused by waiting for just the right religion. But I suspect that the effects will quite likely be positive. 2. For international adoptions, there may also be similar reasons focused on the belief system of the birth parents' country. If Morocco stops allowing adoptions to Britain or the U.S. because there's no assurance that the child will be raised Muslim, then that might materially diminish the quantity of win-win-win-win adoptions. 3. The trick comes with policing such a system. This is especially in the U.S., where the First Amendment generally bars the government from even deciding who's really one religion or another, much less how well someone is teaching the child a particular religion. But I would think there should be similar concerns, even if mostly policy concerns and not constitutional concerns, in other liberal and religiously mixed democracies. I would be inclined to say that the solution should be some provisions through which the parents (or the parents' countries) can delegate the religious judgment to private entities. Much as Orthodox Jews who insist on kosher food rely chiefly on the certification marks provided by private religious organizations or individual rabbis -- marks whose authenticity is assured by religiously neutral trademark laws -- so a mother who wants to give a child up for adoption could provide that the religiosity of the child's new home be vetted by some religious organization of her choice. There would have to be limits on this aimed at protecting the child's best interests: For instance, the organization shouldn't be allowed to demand that the child be taken away from the adoptive parents after the adoption is final, even if the adoptive parents leave the faith. But at least the initial screening could be conducted by the private religious organization, and perhaps the organization could even enforce certain requirements through the threat of some moderate damages liability. 4. But in this case, it seems to me that the UK authorities aren't really trying to make sure that the birth parents' wishes, or even the Moroccan authorities' wishes, are satisfied. There's certainly no sign in the Times story that the UK authorities are focused on such matters, or on the long-term viability of international adoptions from Morocco to the UK. And it seems that the Moroccan authorities are happy with keeping the Muslim conversion strictly pro forma. Rather, the rationale seems to be that an Islamic upbringing is in the child's best interest, because Islam "is an aspect of Samuel's identity," "heritage," "legacy," "religion," and "culture." And this, I think, is wrong as a matter of morality and sound government policy (and would be wrong in the U.S. as a constitutional matter). The trouble, I think, is that (a) small children (Samuel was only several months old when he was adopted) don't have "religion" or "culture" or preexisting religious or cultural component to their "identity," and (b) the government shouldn't take a stand on how valuable the children's "heritage" or "legacy" is. Religion and culture is something that children are taught. Identity is something that is formed by those teachings, by the child's innate biological makeup, and by the reactions of peers and the rest of the adoptive society -- not by the religion of the child's birth country. And whether a child should be raised in the religion of his birth parents or birth country, or raised in a much less devout version of the religion, or in another religion, or raised in no religion at all is a matter on which different sets of reasonable parents can differ. I know of no empirical basis for a belief that the child will be deeply scarred by one decision or another. And in the absence of such an empirical basis, the government shouldn't take the view that one's life, whether adult or young, should be linked to the accident of the child's birth. Nor does it matter to me that the parents might have been insincere in their conversion to Islam. That strikes me as none of the UK government's business, given that the Garofalos weren't claiming any benefit from the UK government on account of their religion. It strikes me a very hard matter for the UK government to determine in any event. (What if they were sincere and then changed their minds? What if they practice a highly reform version of Islam?) And it strikes me as being of extremely slight relevance to the best interests of Samuel, or of Samuel's potential adoptive brother. So the Times story, if accurate, is pretty troubling, both based on its particulars -- among other things, there's now one child who's more likely to have to spend more time in a Moroccan orphanage rather than in what seems likely to be a loving family -- and in what it says about the mistaken attitudes and priorities of the English child welfare system. I hope U.S. authorities avoid going down that path, both for First Amendment reasons and for the other reasons I outlined above.