Adoption and Same-Sex Couples: Overview

Although same-sex marriage is legal in the U.S., there are gay couples who don't want to get married. But their marital status does not have to be an obstacle to adoption. Unmarried prospective gay parents have a few options.

Same-sex couples have the right to adopt in the U.S. In 2015, the U.S. Supreme Court recognized in Obergefell v. Hodges that gay couples have a constitutional right to marry. It was a decision that also impacted adoption rights for same-sex couples.

Although Obergefell didn't address adoption, some plaintiffs raised adoption-related issues. The 2015 ruling explicitly recognized that marriage equality involves adopting children.

Same-sex adoption looked different before Obergefell. Some states protected same-sex couples' right to adopt children. Others expressly prohibited same-sex couples from adopting. By 2015, Mississippi was the only state with an all-out ban on LGBTQ+ couples adopting.

Obergefell threw the legality of Mississippi's law into doubt. One year later, a Mississippi federal court blocked the state from enforcing its adoption ban against married same-sex couples. That federal court explained that the Supreme Court meant for its gay marriage decision to extend "to marriage-related benefits—which includes the right to adopt."

Read on to learn more about the basics of adoption and same-sex couples.

Adoption Basics

Adoptions are a matter of state law. Each U.S. state regulates adoption within its borders, and adoption laws differ from state to state. The adoption process is a legal process. This means an adoption is only complete after a probate or family court approves the adoption.

Although adoption laws vary depending on where you live, many adoption basics are the same. Since it is against the law to discriminate against same-sex couples, these basics are not limited to heterosexual couples.

The Adoption Process

Almost all adoptions begin with the choice to expand a family. Adoptive parents will decide between independent, private agency, or public agency adoptions. In independent adoptions, the biological parents (or the birth mother) and the adoptive parents find each other, and they set the terms of the adoption. In some states, the parties to an independent adoption must receive legal counsel. This is to ensure they are aware of their legal rights.

In a private agency adoption, prospective parents pay a fee to a licensed agency to help them through the process. Private adoption agencies match the prospective parents with the prospective adoptee. By comparison, public agency adoptions are free and help prospective parents adopt children in the foster care system.

Prospective parents can also choose international adoption to adopt a child from a different country.

After the agency vets the prospective parents, they are eligible for child placement. For the adoption to move forward, the birth parents must relinquish their parental rights over their biological child. The adoption process ends when the court approves the adoption. This occurs after the child's birth (in cases where the birth mother is pregnant). After the court approves the adoption, the adoptive parents become the adopted child's legal parents. They can order a new birth certificate to reflect these changes.

This basic process should apply to all prospective parents, regardless of their sexual orientation.

Post-Obergefell

Although Obergefell's reverberations for adoption have yet to resolve fully, a few things are clear. One is that marriage is a prerequisite for LGBTQ+ couples to assert their potential adoption rights. Obergefell was a case about human rights, including the right to marry and receive benefits from marital status. It didn't involve unmarried couples or opposite-sex couples.

Under Obergefell, the government must not discriminate against same-sex couples. This does not always include private organizations. Some states offer religious exemptions allowing private, faith-based agencies to not work with gay couples.

Adoption Options for Same-Sex Couples

Second Parent Adoption

In a second-parent adoption, one parent is the legal or biological parent, and the couple co-parents the child. This couple can pursue a second-parent adoption if available in their state. In this type of adoption, the same-sex partner can adopt their partner's child. If you are considering second-parent adoption, please check your state laws. Some states, like New York and California, allow a second parent in an unmarried couple to adopt their partner's child. Other states, like Kansas, do not.

Stepparent Adoption

Although stepparent adoptions are typically for married couples, this adoption applies when one spouse has a child from a prior relationship. The non-custodial parent must relinquish their parental rights for the adoption to move forward. In some states, if the child is over 10, the child must consent to the adoption.

Surrogacy

In surrogacy, a woman carries a baby to term for a couple or a single individual who cannot have a biological child. Depending on their circumstances, the intended parents can have a biological connection to their child. Since surrogacy involves a legal contract, there are no issues of child custody or legal parentage. After the child's birth, the child goes home with their new parents.

State Law Obstacles to LGBTQ+ Adoption

In a backlash to gay marriage and Obergefell, many states have taken steps to hinder adoption by same-sex couples. Some states have passed religious freedom or religious exemption laws. Congress introduced similar religious freedom legislation in Congress in 2018, but it failed to pass into law. Supporters of such restrictions argue against compelling private agencies to abandon their sincerely held religious beliefs.

These laws allow exemptions from state laws based on religious beliefs. Some states, like Pennsylvania, have broad exemption laws, where an individual or organization applies for the exemption. Other states, like Texas, have "target" exemption laws. These targeted exemption laws allow state-licensed child welfare agencies to deny adoption services if doing so conflicts with their deeply held religious beliefs.

Thirteen states have targeted exemption laws, a few with limited caveats. These states include the following:

Despite religious freedom exemptions, many agencies help LGBTQ+ couples become foster parents or adopt children.

Help for LGBTQ+ Couples Seeking To Adopt a Child

Same-sex couples and same-sex parents have the same rights as opposite-sex couples and opposite-sex parents. A trained legal professional can help you navigate the system if you want to adopt as a same-sex couple. Speak with an experienced family law attorney near you who has handled adoptions by LGBTQ+ couples.

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Can I Solve This on My Own or Do I Need an Attorney?

  • It is a good idea to have an attorney for complex adoptions
  • An attorney can ensure you meet all legal requirements and that your adoption is finalized appropriately
  • An attorney can help protect the best interests of adoptive children, adoptive families, and birth parents
  • For simple adoptions, you may be able to do the paperwork on your own or by using an agency

Get tailored advice at any point in the adoption process. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Adopting a child is an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and make sure your children are provided for. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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