Survivors wanting to adopt may be protected from discrimination by the American Disabilities Act. Learn what you need to know.
Megan Silianoff described her treatment for ovarian cancer, first in a phone call with the adoption agency in 2011, and then later when she traveled with her husband to attend a group orientation meeting for prospective parents.
She had received the diagnosis the prior year when she was 28. It was a rare form of ovarian cancer, one that’s not typically aggressive, Silianoff says. She underwent surgery, and her Houston oncologist wrote a supportive letter. “She said that that my life expectancy was consistent for anyone else my age, and that she recommended me as a candidate for adoption,” Silianoff says.
The agency’s response was friendly throughout the group orientation gathering, but then roadblocks began to appear. First, her oncologist was asked to write a second letter, with more details about her cancer diagnosis. Then, Silianoff recalls, “they called and said, ‘We got your doctor’s letter. But we need a 100 percent guarantee that your cancer won’t grow back.’ And that’s when I knew they were just yanking us around.”
Such medical certainties, which wouldn’t be required of prospective adoptive parents in other situations, can run afoul of the Americans with Disabilities Act (ADA), says Madelyn Freundlich, a New York City lawyer and social worker who specializes in adoption and foster care issues. Cancer, including a prior history, is considered a federally protected disability, she says.
“The goal is to have people with disabilities be able to fully enjoy services unless the criteria that are being used with respect to their disability can be shown to be necessary to providing, in this case, adoption services,” says Freundlich, who has written several articles about the ADA and adoption and previously served as executive director of the Donaldson Adoption Institute, a New York-based nonprofit organization that focuses on adoption research and policy.
Asking a doctor to provide a medical guarantee is unreasonable, she says, because it wouldn’t be required for applicants without a history of cancer. “There is really no guarantee that any of us are going to live to a certain age,” she adds. “No doctor in his or her right mind is going to start guaranteeing the future health of people.”
Freundlich also suggests that agencies steer clear of requiring cancer survivors to meet specific benchmarks, such as proving that they’ve been cancer free for five years. Cancer behaves differently in each individual, growing at different rates and responding differently to treatment, she says. “That’s really setting arbitrary criteria and doesn’t really look at the individual characteristics of that particular prospective parent.”
Agencies can ask an applicant’s doctor to provide a letter, attesting to current health status and related medical details, without straying into prognostication, Freundlich says. They also can assess other circumstances that might impact the ability of a cancer survivor to parent a child. For example, cancer treatment might have created a financial hardship. Or, “perhaps they’ve physically recovered, but psychologically they are still kind of stuck back in what happened.” But questions related to financial or psychological resiliency would apply to any prospective parent, she says.
Unfortunately, applicants aren’t likely to challenge an agency’s practices on ADA grounds, Freundlich says. “Are they going to risk completely alienating the agency? That’s the really difficult situation, kind of the power differential between the agency and the prospective adoptive parent.”
Silianoff and her husband, Danny, did walk away, losing nearly $1,000 to agency fees and related travel. “We were pissed, but we basically cut our losses,” she says. They moved on, eventually working with an agency in Austin and waiting on pins and needles for that long-anticipated call.
It arrived a few days before their daughter, Macy, was born in September of 2012. The proud mother describes her curly haired daughter as a “happy little baby,” passionate about Elmo and blowing bubbles. Silianoff, now 32, continues to get ultrasounds every three months and is cancer-free. Last year, she delivered her first book: 99 Problems but a Baby Ain't One: A Memoir about Cancer, Adoption and My Love for Jay-Z.