Adopting Children When You Have A History Of A Serious Health Condition

Under the Americans With Disabilities Act (ADA), public and private adoption agencies cannot discriminate against a person with a disability who wants to adopt a child.

The prohibition applies to all adoption agencies, regardless of whether the agency is public or private and regardless of size.

"Disability" for purposes of the ADA doesn't have to be what you might think of as a disability, such as someone in a wheelchair. The statute defines "disability" in a way that can arguably include a life changing diagnosis. (The ADA likely encompasses your diagnosis because of the effects of your health history or because people may perceive you as disabled because of a history of a serious health condition. If you want to learn more about the law, see: ADA).

For our purposes, the ADA requires that every prospective adoptive parent with a medical history be given an equal opportunity to participate. Simply put, this means that the ADA requires people with a disability be given an opportunity that is the same as the opportunity extended to applicants who are not disabled. It does not guarantee individuals with disabilities an unquestioned right to adopt.

An adoption agency that rejects a disabled person as a prospective adoptive parent must either:

• Establish that the disability was not the reason for the applicant's rejection OR
• If the disability was the basis for the decision, the rejection was justified based on current medical knowledge or on the best available objective evidence in determining the risks involved and the actual abilities and disabilities of the individual.

As a general matter, when an adoption agency asks health questions may be relevant in helping to determine whether the agency discriminates on the basis of health or not.

• If an agency asks health questions up front, it may have a discriminatory policy. 
• On the other hand, questions about physical health and possibly even a medical examination may be okay after initial screening. It is appropriate for an agency to look at whether you are physically able to take care of a child. The agency may not look at "why."  

If you feel that you have been discriminated against, you have a right to file a complaint with the Department of Justice and/or file a private lawsuit. In the lawsuit, you can seek injunctive relief, money damages, and reasonable attorneys' fees. For advice about the best manner for you to proceed, contact an adoption lawyer in your area. (See below.)

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