LGBT adoption in the United States

Prior to several rulings by the Supreme Court of the United States, adoption laws varied widely by state. Some states granted full adoption rights to same-sex couples, while others banned it entirely or only allowed the partner in a same-sex relationship to adopt the biological child of the other partner. On June 26, 2015, the Supreme Court struck down all bans on same-sex marriage in the United States. On March 31, 2016, a Federal District Court struck down Mississippi's ban on same-sex couples from adoption. On June 26, 2017, the Supreme Court reversed an Arkansas Supreme Court ruling and ordered all states to treat same-sex couples equally to opposite-sex couples in the issuance of birth certificates. These court rulings have made adoption by same-sex couples legal in all 50 states.

LGBTQ people continue to face moral judgment about whether they are suitable parents.[1] The context of same-gender adoption allows for a reworking of the construct of the modern family and the negotiation of parenting identities moving beyond the traditional system based on the gender binary.[1]

LGBT parenting

On April 6, 1999, the American Civil Liberties Union produced an Overview of Lesbian and Gay Parenting, Adoption and Foster Care. Within this document, the organization addressed research results on Lesbian and Gay Parenting, some key findings include:[2]

  • There is no evidence to suggest that lesbians and gay men are unfit to be parents
  • Home environments with lesbian and gay parents are as likely to successfully support a child's development as those with heterosexual parents
  • Good parenting is not influenced by sexual orientation. Rather, it is influenced most profoundly by a parent's ability to create a loving and nurturing home – an ability that does not depend on whether the parent is gay or straight
  • There is no evidence to suggest that the children of lesbian and gay parents are less intelligent, suffer from more problems, are less popular, or have lower self-esteem than children of heterosexual parents
  • The children of lesbian and gay parents grow up as happy, healthy, and well-adjusted as the children of heterosexual parents.[3]

Many families in which a child would have parents who identified as lesbian or gay and then grew up in a same-sex relationship were those brought about from a previous heterosexual relationship.[4] As such, many prior legal disputes were over the custody of a child in cases of a divorce. Biases were then seen against the parent in a now same-sex relationship which caused courts to not favor them in giving custody and visitation rights. The sexual preference of the LGBT parent was viewed as impacting the upbringing of the child and not the actual ability to provide for the child's needs.[4] Following the introduction of In vitro fertilisation, lesbian couples were able to rear children of their own who weren't born from heterosexual relationships and the child being the biological offspring of one of the partners.[4] Sprouting from this is the development of the issues of co-parent adoption and, in cases of separation, child custody in some lesbian relationships.

For male same-sex couples, becoming a parent can be more costly, as if there is a desire to have a biological child of one of the partners, the only method is surrogacy.[5] As such, adoption serves as a more cost-effective alternative.

Professional organizations

"Call to Action!"

“Call to Action! Foster and Adopt Our Children” was hosted by Let it Be Us which focused on finding foster and adoptive families within the Chicago’s LGBTQ community in July 2016. Over 150 people who attended the event had experienced the difficulty of adopting in Chicago. The other half were agencies throughout the Chicagoland area such as ChildServ, Hephzibah, Children’s Association, Illinois Center for Adoption and Permanency, Kaleidoscope, Inc., Lakeside Community Committee, Lawerence Hall, Little Children’s Villages of Illinois, Illinois Department of Children and Family Services (DCFS), Pride Action Tank, user Youth Exploring Spirituality and Windy City Times. Speakers were invited up to take the podium, such as “Illinois DCFS Director George Sheldon spoke on the topic of diligent recruitment in Illinois director of strategic initiatives at Lawerence Hall Renee Lehocky spoke about the history and mission of the “Call to Action! Foster and Adopt Our Children” collaborative; Mark Wilson spoke about his and his partner Bryan Northup’s experience as foster parents to four children ranging from 15 months-old to young adults and each of their experiences.”[6]

Professional organizations that support gay and lesbian families adoption include: Child Welfare League of America, the American Psychiatric Association, the American Psychological Association, the American Academy of Pediatrics, and the National Association of Social Workers (NASW). These organizations fight for gay and lesbians couples to get the rights of adoption to be proposed as a redefined “family.” As mentioned by Drcuker and Raymond in the article “Adoptive Homes and the Meaning of Family: Implications for Gay and Lesbian Prospective” children of gay and lesbian families are often subject to teasing and harassment within their peer group.[7][8]

Population

More recently, the amount of same-sex couples adopting in the 21st century has tripled since the 1990s. U.S. Census data from 2010 revealed an emerging trend in American adoptions; despite considerable prejudice in some quarters and legal barriers in states, same-sex couples are adopting children in growing numbers.[9] According to these figures, of the 115,064 same-sex households with children, about 16 percent or 18,400 were bringing up one or more adopted children,[9] and 11 percent from the figures are gay male couples.[10]

According to the Williams Institute, as of 2009: "an estimated 20,000 same-sex couples are raising nearly 30,000 adopted children."[11] As of 2011, approximately two million children in the United States were being raised by LGBT parents and unable to establish a legal relationship with both their LGBT parents.[12] The 2010 U.S. Census reported that same-gender couples are raising approximately 115,000 children 18 years and younger and are living in essentially all counties of the United States.[13]

Professional assessments
Main article: LGBT parenting

A consensus has developed among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.[14] The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.[15] Based on the robust nature of the evidence available in the field, the Third District Court of Appeal of the State of Florida was satisfied in 2010 that the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption.[16] The most important factors in maintaining the welfare of a child is more dependent on the socioeconomic status and not as dependent on the gender and sexuality of the parents. Issues are brought about from uncontrolled factors such as discrimination or the inability of parents to get married.[17]

A common fear of many persons who oppose the rearing of children by a homosexual couple will result in the child becoming homosexual themselves.[18] However, this is not the case as when comparing children from heterosexual parents to those raised with same-sex parents there is no increase in the number of children who identify as homosexual.[18] However, there are differences seen as children from same-sex relationships tend to not conform to traditional gender roles,[18] which is sometimes used as another argument brought about by opponents of same-sex adoption.

In a study done by Goldberg, Kinkler, Richardson and Downing, the effects of Lesbian, Gay, and Heterosexual Couples in Open Adoptions were examined through a qualitative study. Because little research has been focused on the effects of gender and sexual orientation in open adoption relationships. Data from 90 individuals, (30 women in 15 lesbian relationships; 30 men in 15 gay relationships, and 15 women and 15 men in heterosexual relationships were analyzed). All couples were adopting their first child, and the parents were all first-time parents. This study was done within the borders of the United States. Participants filled out a questionnaire, and a telephone interview within the first 3–4 months of receiving a child. All participants were between the ages of 27 and 52 (average 37.7), and 90% Caucasian. The results were qualitative in nature, relying on truthfulness of the participants' answers. The results emphasized that gay and lesbian couples emphasized the philosophy of openness and it relates to their own desire to pursue adoption without hiding their sexual orientation. The birth mother was the consistent member of the birth family that kept in touch with the adoptive family. The birth mother was a driving force shaping open adoption relationships. One of the downsides to this study is that there was no long-term interview or follow-up as the child progressed in an open adoption. It does show that there is no great apprehension from the birth family to the adoptive family because of sexual orientation.[19]

Public opinion

A 2007 poll by CNN and Opinion Research Corporation found that 57% of respondents felt same-sex couples should have the right to adopt and 40% that they should not.[20] More recently, a Gallup poll from May 2014 found 63% of respondents believed same-sex couples should have the legal right to adopt a child.[21]

From 1994 to 2012, seven national polling organizations asked certain representative sections of Americans their opinions regarding the legalization of same-sex adoption, with the main question being: "Do you think there should or should not be adoption rights for gays and lesbians so they can legally adopt children?" Survey results from 1994 to 2012 indicate an increase in support. Of those surveyed in 1994, only one in four (28 percent) favored adoption, compared with more than five in ten in 2012. From 1994 to 1999, only one in three favored adoption; from 2002 to 2008, support increased to four in 10. From 2009 to 2012, a full majority (52 percent to 61 percent) approved of the legalization of same-gender adoption.[22] It was shown that younger people expressed more support than people over 65.[22] It was also found that 85% of the Democrats asked were in support of same-sex adoption, while only 23% of the Republicans asked were in support of it.[22]

In June 2018, a YouGov poll found that over half of Americans (55%) said they believe heterosexual and homosexual couples can be equally good parents. Majorities also said they were in support of gay (53%) and lesbian (55%) couples having the right to adopt and raise children. When asked whether gay and straight couples can be equally good parents, 38% of people “strongly” agreed, making this the most popular response. Women (47%) were significantly more likely than men (30%) to “strongly” agree with this statement. However, a majority of people (57%) also said they believed that a child should be raised by both a mother and a father. Another 15% “strongly” or “somewhat” disagreed with that idea. In this case, men (47%) were far more likely than women (30%) to “strongly” agree with the statement that children should be raised by a mother and father. When asked if they thought lesbian couples should be able to adopt and raise children, 55% said yes and 29% said no. When asked about gay male couples, 53% saying yes and 32% saying no. In both instances, women were significantly more likely than men to say yes. Almost half of Americans (47%) said that it was unfair that child-welfare agencies can refuse to place a child with a same-sex couple based on religious objection, while one-third (33%) said it was fair. (46%) were also in support of a Connecticut initiative to recruit members of the LGBT community to become foster and adoptive parents, though another 29% said they thought it was a bad idea.[23]

Politics

On July 29, 1999, U.S. Representative Steve Largent introduced amendment 356 (H.Amdt. 356) to the District of Columbia Appropriations Act, 2000 (H.R. 2587) that would have banned joint adoption between individuals who are not related by blood or marriage in Washington, D.C. The amendment failed with 213 votes in favor and 215 opposed.

In 2004, Jeb Bush, Governor of Florida, was quoted saying: "[I]t is in the best interest of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored both by a father and a mother."[24]

On May 10, 2012, Republican presidential candidate Mitt Romney told an interviewer: "And if two people of the same gender want to live together, want to have a loving relationship, or even to adopt a child – in my state individuals of the same sex were able to adopt children. In my view, that's something that people have a right to do." Asked the next day to reconcile that with his opposition to same-sex marriage, he said: "Well actually I think all states but one allow gay adoption, so that's a position which has been decided by most of the state legislators, including the one in my state some time ago. So I simply acknowledge the fact that gay adoption is legal in all states but one."[25]

Currently, there are legal appeals in a number of states to allow for co-parent adoption, commonly known as second parent adoption, whereby one parent can adopt the child of the biological child of their same sex partner, without voiding their partner of parental guardianship over the child.[26] This allows the child to be recognised as having two legal parents in cases where the couple is not in a relationship recognised by the state.[26]

Gay and Lesbian Policy:

  • Made on state than federal level and are dictated by statuses, agency regulations, and court opinions, which can be fueled by political ideologies (Kenyon 2003). For the states that let gay couples adoptive require that adoptive couples must be married; the states that don’t have specific states laws this issue is addressed based on the best interest of the child-Adoption and Safe Families Act of 1997
Statewide same sex protections in adoption laws in the United States
  States where same-sex couples and LGBT community members can adopt
  States where same-sex couples can adopt
  States where same-sex couples can't adopt (No longer applies since June 26, 2017 but still mentioned in laws that existed prior to Supreme court ruling and might be effective if Supreme Court overrules its ruling in the future
  Same-sex couples and/or LGBT community members can adopt without legal protections

Law on same-sex adoption

On May 16, 2013, the Every Child Deserves a Family Act was introduced to Congress, but was never enacted.[27] This act would have stipulated that any organization that deals with the foster and adoptive care of children and has some form of funding from the federal government could not discriminate against "prospective adoptive or foster parents solely on the basis of their sexual orientation, gender identification, or marital status or on the basis of the sexual orientation or gender identity of the child involved."[28] However, as the bill introduced only applied to centers that are federally funded, private institutions would still have been able to refuse same-sex couples from adopting. In January 2019, the state of South Carolina applied for and was granted a wavier that allowed adoption agencies to block same sex couples form adopting or becoming foster parents. A Greenville couple has filed a lawsuit in this case, the outcome of which is pending.[29]

Cases

Alabama
Main article: V.L. v. E.L.

On October 12, 2012, an anonymous Alabama Court of Civil Appeals turned down the request of a woman to adopt her same-sex spouse's child. The couple had been married in California. The court held that Alabama law did not recognize the women as spouses.[30]

On September 18, 2015, the Supreme Court of Alabama reversed lower courts that recognized an adoption judgment granted to a same-sex couple over their three children in 2007 by the Superior Court of Fulton County, Georgia. The court ruled that the Georgia state court misapplied Georgia state law in granting the adoption. In the case of V.L. v. E.L.. E.L., biological mother of the three children, who sought to reverse an order recognizing the adoption decree, argued the Georgia decree was void based upon that court lacking subject matter jurisdiction. The Supreme Court of Alabama agreed, voiding the decree's recognition in-state and nullifying the parental rights of V.L. On November 16, V.L. petitioned the United States Supreme Court to stay the order stripping her of her parental rights and to allow her to see her children during the appeals process. On December 14, the Supreme Court granted her request for a stay of the ruling pending their disposition of V.L.'s petition for a writ of certiorari. This is the first adoption case that has made it to the Supreme Court since Obergefell was decided.[31]

On March 7, 2016, the United States Supreme Court unanimously reversed the Supreme Court of Alabama. The court ruled that the Alabama Supreme Court was incorrect when it refused to recognize the adoption decree from Georgia, ruling that the Full Faith and Credit Clause had been violated. The court's decision had the effect of the adoption decree from Georgia being recognized in Alabama, and V.L.'s parental rights being restored. The case was remanded to the Supreme Court of Alabama for further proceedings.[32]

Arkansas

On November 4, 2008, Arkansas voters approved Act 1, a measure to ban anyone "cohabitating outside of a valid marriage" from being foster parents or adopting children. Although the law could apply to heterosexual couples, it was believed to have been written to target gay couples due to the fact that same-sex marriage was prohibited in that state, thereby making an adoption impossible.[33] Single gay men and lesbians were still allowed to adopt in Arkansas. The law was overturned on April 16, 2010 by state judge Chris Piazza.[34] The Arkansas Supreme Court in Arkansas Department of Human Services v. Cole upheld the lower court's decision on April 7, 2011.[35]

In Arkansas, state Circuit Judge Tim Fox of Pulaski County ruled on December 1, 2015, that a state law restricting parental identification on birth certificates to heterosexual couples was unconstitutional. His ruling initially applied only to the three couples who originally sued in this case, Pavan v. Smith. Two days later, he broadened the ruling to apply statewide. On December 10, 2015, the Supreme Court of Arkansas stayed the statewide applicability, but allowed the three plaintiff couples to receive their amended certificates.[36] On December 9, 2016, the Supreme Court of Arkansas reversed the trial court's order.

On June 26, 2017, the U.S. Supreme Court granted the petition for a writ of certiorari sought by the plaintiff parents and reversed the Arkansas Supreme Court. The Court held by a 6-3 vote that Arkansas' law only allowing for opposite-sex couples to be named on their children's birth certificates was an unconstitutional breach of their ruling in Obergefell v. Hodges.

Florida

In Florida, a 1977 law prohibited adoption by homosexuals following the anti-gay Save Our Children campaign led by Anita Bryant. In November 2008, a state circuit court struck down the law in In re: Gill, a case involving a gay male couple raising two foster children placed with them in 2004 by state child welfare workers.[37] On appeal, on September 22, 2010, Florida's Third District Court of Appeals unanimously upheld the decision of the lower court. The state did not appeal.[38] The 1977 law that banned homosexuals from adoption was repealed on July 1, 2015.

In Florida, a case was brought before federal District Judge Robert Hinkle of the United States District Court for the Northern District of Florida. The Florida Department of Health refused to issue a birth certificate recognizing both partners in a same-sex relationship. The plaintiffs in the case asked Judge Hinkle to declare this policy unconstitutional. He set a deadline of January 6, 2016, for the Department of Health to reply to plaintiffs' motion for summary judgment. In January 2017, Florida reached a settlement with the plaintiffs, agreeing to issue correct birth certificates to all married same-sex couples on an equal basis.[39]

Idaho

In 2013, a lesbian couple, married in California but now living in Idaho, petitioned for second-parent adoption. A state magistrate denied the petition on the grounds that Idaho did not recognize their marriage. On appeal, the Idaho Supreme Court unanimously reversed the magistrate's ruling because Idaho has no specific statutory ban on unmarried second-parent adoption.[40]

Indiana

In Indiana, there are two cases pending in the United States District Court for the Southern District of Indiana – one filed in February 2015, and one in December 2015 – against a policy identical to Florida's. The February case deals with issues more specific to the ruling by the Seventh Circuit Court of Appeals in the case Wolf v. Walker due to the fact Obergefell had not yet been decided. The December case cites Obergefell as reason for ordering the state to list both parents in a same-sex relationship on birth certificates. No action has been made in either case.[41]

Kansas

In November 2012, the Kansas Court of Appeals ruled in the case In the Matter of the Adoption of I. M. that a single person who is not a biological parent of a child cannot petition to adopt that child without terminating the other parent's parental rights. Since Kansas does not recognize same-sex marriages, this ruling effectively prevents same-sex couples from second-parent adoption in Kansas.[42] However, the Kansas Supreme Court ruled on February 22, 2013, in Frazier v. Goudschaal that a partner of a biological parent is entitled to parental rights.[43]

Michigan

In December 2012, the Michigan Court of Appeals ruled that the state's adoption code permits second parent adoptions by same-sex couples.[44]

Two Michigan lesbians, who are raising three children adopted by only one of them, filed a lawsuit in federal court in January 2012 seeking to have the state's ban on adoption by same-sex couples overturned.[45] and in September amended that suit to challenge the state's ban on same-sex marriage as well.[46]

On June 26, 2015, the Supreme Court of the United States ultimately ruled in their favor in Obergefell v. Hodges.

Mississippi

33% of Mississippi's households headed by same-sex couples include a child, the highest such percentage in the nation.[47] Nevertheless, Mississippi's Domestic Relations Code states: "Adoption by couples of the same gender is prohibited."[48] A lawsuit, Campaign for Southern Equality v. Mississippi Department of Human Services, was filed in August 2015 by four Mississippi same-sex couples seeking to overturn this law.[49] The plaintiffs in that case are represented by Roberta Kaplan, who successfully argued United States v. Windsor before the U.S. Supreme Court. Mississippi was the only U.S. state to not have legal joint adoption rights for LGBT couples; the only other jurisdictions under U.S. sovereignty where this is the case are American Samoa and some Native American tribal nations.[50]

In Mississippi, a state law passed in 2000 explicitly prohibits same-sex couples from joint adoption. After Obergefell, Mississippi has specifically stated the ban is still in effect. On August 12, 2015, the Southern Poverty Law Center joined by four same-sex couples raising children filed suit in the United States District Court for the Southern District of Mississippi seeking to declare the statute unconstitutional.[51]

On March 31, 2016, Judge Daniel P. Jordan III issued a preliminary injunction striking down Mississippi's ban on same-sex couples from adoption, ruling the ban violates the Equal Protection Clause. There were no immediate plans by the state of Mississippi to appeal the ruling to the U.S. Court of Appeals for the Fifth Circuit.[52]

Nebraska

Three same-sex couples filed a lawsuit against the state on August 27, 2013, seeking the right to serve as foster and adoptive parents. It claimed that the state's policy against allowing two unrelated adults to adopt has been consistently enforced only against same-sex couples.[53]

New York

An October 2012 court ruling in a custody dispute between two women in a same-sex relationship awarded custody to the adoptive parent rather than the biological mother.[54]

Wisconsin

In Wisconsin, the state has allowed both parents to be on the birth certificate, but refuses to change the wordage from "father and mother" to a gender-neutral "parent 1 and parent 2." In another case, a couple was outright rejected in their request. A federal lawsuit has been filed challenging this refusal.[55] There is also a state lawsuit, Torres v. Rhoades, challenging the birth certificate wordage. On November 4, a judge dismissed Torres because the couple initiated the case as an adoption, but the judge ruled they didn't properly attack the constitutionality of the statutes that used the term "father and mother" or "husband and wife." On November 17, the Second District Court of Appeal in Wisconsin agreed with the lower court. The couple could now appeal the case to the Supreme Court of Wisconsin or they could go back to the trial court with a case challenging the constitutionality of the statutes that require the terms "father and mother."

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