Same-Sex Adoption Laws: Rights, Barriers, and Legal Options

Introduction: Growing Attention to Same-Sex Adoption

For much of American legal history, same-sex adoption was largely overlooked by legislatures and courts. The lives of lesbians, gays, bisexuals, and transgender individuals were deemed so far outside the mainstream as to attract little legal interest. Recent advancements in reproductive technology and increased public relations efforts by groups supporting alternative lifestyles have caused the public to afford gay issues more sympathetic attention.

Evidencing this shift in attitude were the comments of Representative John Lewis of Georgia, who wrote in the Boston Globe on October 25, 2003:

"We hurt our fellow citizens and our community when we deny gay people civil marriage and its protections and responsibilities. Rather than divide and discriminate, let us come together and create one nation. We are all one people. We all live in the American house. We are all the American family. Let us recognize that the gay people living in our house share the same hopes, troubles, and dreams. It's time we treated them as equals, as family."

One of the areas receiving increased attention is the issue of same-sex adoption. There has been a substantial increase in the number of lesbian, gay, and bisexual couples electing to pursue parenthood and, in response, legislatures and courts have had to react accordingly.

Every state in the United States allows unmarried individuals to adopt. In such adoptions, an individual — regardless of whether he or she is heterosexual or homosexual — can adopt a child who has been placed for adoption by his or her biological parents. As in all adoptions, the individual's petition is subject to review and approval by a court. Because all jurisdictions permit individual adoptions, a great number of adoptions by lesbians, gays, bisexuals, and transgender individuals have been possible. In jurisdictions disfavoring this type of adoption, however, other barriers have been erected to discourage widespread acceptance.

State Statutory Bans and Court Challenges

Bucking the trend toward allowing same-sex adoption, the state of Florida categorically prohibited all lesbian and gay adoptions by enacting legislation. Specifically, the Florida statute stated: "No person eligible to adopt under this statute may adopt if that person is a homosexual." (Fla. Stat. Chapter 63.042(3).)

Recently, Florida's Third District Court of Appeals ruled in Fla. Dep't of Children and Families v. X.X.G., 210 Fla. App. Lexis 14014 (Fla. Ct. App. Sept. 22, 2010), that the statutory ban had no rational basis and that it violated the equal protection clause of the Florida Constitution. Speculation among the gay and lesbian community was that the Florida Attorney General's office would appeal the court's decision. After consultation with the Governor's office, the Attorney General's office declined to do so, and the state has acted in accordance with the court's ruling since. Although the court's decision is binding only within the geographical confines of the Third District, there is every reason to believe that it will be afforded statewide application.

Two other states — Utah and Arkansas — continue to prohibit adoption by individuals who are "cohabiting in a relationship that is not a legally valid and binding marriage." (Utah Code Ann. §78B-6-117(3)(b); Arkansas Initiative Act 1.) The wording of these statutes does not reflect a specific prohibition against same-sex couple adoption, but in effect that would be the result. Interestingly, at least one state court in Arkansas has ruled that the applicable Arkansas statute was unconstitutional (Arkansas Dep't of Human Servs., No. 60CV-08-14284 (Ark. Circuit Ct., Pulaski County, April 16, 2010)), and the case was under review by the Arkansas Supreme Court. The State of Mississippi separately prohibits "adoption by couples of the same gender." (Miss. Code Ann. §93-17-3(2).)

Strict statutory prohibition is not necessarily the only method used to thwart adoption by lesbians and gays. With the exceptions noted, all states theoretically allow lesbians, gays, and bisexuals to adopt; however, some courts still employ longstanding prejudices as a justification for denying the applications of gay individuals. In Arizona, the Court of Appeals denied a petition brought by a bisexual man, reasoning that "he testified that it was possible that he at some future time would have some type of homosexual relationship with another man." (In re Appeal in Pima County Juvenile Action B-10489, 727 P.2d 830 (Ariz. Ct. App. 1986).)

Individual Adoption and the Secondary-Partner Problem

Because marriage has not always been an available option for lesbians and gays, individual adoption has historically been the preferred method of building a family. Unfortunately, under such an arrangement only one partner can enjoy the privilege of possessing a legal relationship with the adopted child. The remaining partner is relegated to a secondary position in which he or she has no legal relationship with the child. The practical effect is that the non-custodial partner has no legally recognized role in the child's life and, in the unfortunate event of a break-up in the same-sex relationship, faces the possibility of complete separation from the child.

Second-Parent Adoption as a Legal Solution

In answer to this legal dilemma, a number of states have devised a procedure known as second-parent adoption. This procedure allows a same-sex partner to adopt his or her partner's biological or adoptive child without requiring that the legal parent's rights be terminated. The procedure was originally devised to allow stepparent adoption, but many jurisdictions have adapted it for use in lesbian and gay adoptions.

Second-parent adoption differs from joint adoption in that the application is made separately. As joint adoption by same-sex partners is still prohibited in several jurisdictions, second-parent adoption fills a void and allows same-sex partners the opportunity to create a legally recognized family unit. The procedure gives the adopted child the legal security of having two parents and the benefit of crucial financial support such as Social Security, child support, inheritance rights, and other such protections. (See, e.g., Cal. Fam. Code §9000(b); Conn. Gen. Stat. §46b-38nn; In re Hart, 806 A.2d 1179 (Del. Fam. Ct. 2001); In re M.M.D., 662 A.2d 837 (D.C. 1995); Petition of K.M., 653 N.E.2d 888 (Ill. App. Ct. 1995); In re Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004); Adoption of Tammy, 619 N.E.2d 315 (Mass. 1993); Matter of Adoption of Two Children by H.N.R., 666 A.2d 535 (N.J. Super. Ct. App. Div. 1995); In the Matter of Jacob, 660 N.E.2d 397 (N.Y. 1995); In re Adoption of R.B.F. and R.C.F., 803 A.2d 1195 (Pa. 2002); Vt. Stat. Ann. Tit. 15A §1-102(b).)

There remain, however, several states that have, through court decisions, expressly denied second-parent adoptions. (See, e.g., In re Adoption of Luke, 640 N.W.2d 374 (Neb. 2002); In re Adoption of Doe, 719 N.E.2d 1071 (Ohio Ct. App. 1998); Interest of Angel Lace M., 516 N.W.2d 678 (Wis. 1994); S.J.L.S. v. T.L.S., 265 S.W.3d 804 (Ct. App. Ky. 2008).)

Conclusion: The Path Toward Universal Parenting Rights

Significant advances have been made by the lesbian, gay, bisexual, and transgender communities in the past fifty years. Attitudes toward their lifestyles have become more open-minded and, as a result, such individuals have been able to enjoy benefits of life that accompany more traditional relationships. The right to enjoy the benefits of parenthood is just one of these advances. Although same-sex couples have come a long way in this area of their lives, much more remains to be done before universal acceptance is achieved.

What legislatures and courts are beginning to understand is that same-sex marriage is a protection for the couples choosing to utilize it and, concurrently, a protection for the children who are either born into or joined through adoption. In order to fully apply the "best interest of the child" standard now universally applied by all jurisdictions, the issue of same-sex marriage is being widely considered throughout the United States. It is only through legally recognized marriages that children will be fully guaranteed protections in the case of death, divorce, poverty, and a range of other circumstances. (Warren Farrell, M.D., The Best Interests of the Child (2006).)

The situation facing prospective adoptive parents who happen to live in a non-traditional relationship is a complex one. There is no consistent national pattern regarding who can adopt, how that adoption can be effectuated, or how that adoption will be treated in other jurisdictions. Attitudes toward same-sex relationships remain mixed and, although changes are being made, they are occurring slowly and with little consistency in the way that courts and legislatures choose to interpret these matters. Gay and lesbian support and advocacy groups are working tirelessly to educate legislative members so that acceptance can become universal, but the process is slow.

The best approach for same-sex couples anticipating a possible adoption is to investigate the laws and procedures in their particular jurisdiction. Consulting an attorney experienced in same-sex adoption within the jurisdiction is an absolute necessity. There are simply too many nuances inherent in these proceedings to risk missing or overlooking a critical detail without the services of an expert.

The likelihood is that all jurisdictions within the United States will eventually afford gay and lesbian couples the full measure of parenting rights that traditional heterosexual couples enjoy. Until such time, however, same-sex couples must tread carefully in order to protect their relationship and their parental rights. (Adam P. Romeo et al., Census Snapshot: United States, Williams Institute (2007).)