Abstract

Excerpted From: Belinda Grunfeld, Applying Contract Theory to Chinese American Transracial Adoption, 32 Asian American Law Journal 40 (2025) (173 Footnotes) (Full Document)

In the early mornings, long after my parents have gone to bed, my sister and I share a quiet routine. Tiptoeing, we sneak out of bed and down the stairs of our family home. She walks straight into the kitchen, and I turn right, into the pantry.

The pantry is unassuming at first glance--Ghirardelli brownie mix, packages of Campbell's chicken noodle soup, and stacks of dried spaghetti fill the shelves--typical fare for an American household. Yet, tucked away carefully on the bottom shelf is a selection of assorted East Asian prepackaged foods. Spicy Korean ramen is nestled next to self-heating hotpot packages, and a bag of Japanese okonomiyaki pancake mix is Tetris-ed in the middle. This section is carefully curated and thoughtfully arranged to take up as little space on the shelf as possible.

I pick out the Chinese hot-pot box and two packages of microwavable Korean purple rice. In the kitchen, my sister has already set up two bowls and taken out two disposable chopstick sets. We pour water into the self-heating hot-pot box, and we sit together for our second dinner of the night.

At best, these packages are curious oddities to my parents. They know the food is there, but they have little interest in understanding what it is or what it tastes like. At worst, the food is an unwelcome reminder of our differences. It makes visible the space between us: They are White Americans, and we are their adopted Chinese daughters. For me though, the stash of food tethers me back to my life in California and the wonky patchwork Asian American identity I've carved out.

This Article is born out of a lifetime of tiny moments like this. My goal is to critically examine how Chinese American adoption was used as a mechanism for predominately White Americans to partake in the private creation of a family. The Article applies a contract theory lens to communicate the multitude of gains and losses that Chinese American adoptees may experience in the adoption process.

Part I provides background information on the history of transracial and international adoption in the United States and China. Part II examines other areas where contract law is applied to families. The goal of this section is to establish that it is not unusual to describe families using a contractual paradigm because contracts underly many aspects of family life. Part III and Part IV spend significant time examining the contractual dynamics between Chinese adoptees and their adoptive parents by analyzing power, race, gender, and politics. Part III begins by identifying the parties of the contract and their payment or “consideration.” Part IV considers the adoptee's ““performance” of the contract.

While the Article does not intend to be prescriptive, a contracts framework opens the door to a somewhat controversial question--what do adoptees owe their adoptive parents, and what do adoptive parents owe their adopted children? Given the multitude of media and research that already exists from the perspective of adoptive parents, the Article primarily focuses on the Chinese adoptee's portion of the “contract” by examining the confusing experience of transracial adoption. Transracial Chinese adoptees are, of course, racialized as Chinese and have deep ties to China, yet they are often completely cut off from Chinese culture. Even though the Chinese government has ended international adoption as of 2024, I hope that this Article can be used to contemplate the complexity of Chinese American adoptee identity, the peripheries of Asian American history, the creation of families, and the complex nature of transracial adoption.

[. . .]

Chinese American adoption has long been enshrouded in a rescue narrative, where American adoptive families with economic resources and Western ideals fly to China and save adoptees from a backward, sexist, and Communist country. However, when we look beyond this narrative and evaluate the dynamics of race, gender, politics, and citizenship in the context of Chinese American adoption, we see the story is much more complicated. Applying a contracts lens to adoption helps distill the boundless gains and losses for all parties-- governments, adoptive parents, biological parents, and adoptive children. Applying a contractual framework also highlights a broader question that exists beneath the surface: What should adoptive children actually owe their adoptive parents?

Belinda Grunfeld is a litigation associate in the Washington, D.C., office of Kirkland & Ellis LLP. She is a graduate of UC Berkeley School of Law.