Adoption and Same-Sex Couples: Overview

Same-sex couples have the right to adopt in the United States. An adoption journey may have unique considerations for transgender, nonbinary, gay, and lesbian parents. Yet, the process is largely the same.

Same-sex couples wishing to adopt often face uneven legal challenges. A person's sexual orientation does not change their child-raising goals. But family laws and policies on same-sex adoption have a history of discrimination.

Read on to learn more about the basics of adoption for same-sex couples. You may also want to consult a family law attorney for help, especially if you experience discriminatory treatment during the adoption process.

LGBTQ Adoption Legal Basics

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

The adoption process is a legal process. This means an adoption is only complete after a probate or family court approves the adoption.

Adoptions are a matter of state law. Each U.S. state regulates adoption within its borders, and adoption laws differ from state to state.

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

How Court Rulings Shaped LGBTQ Adoption Laws

In 2015, the U.S. Supreme Court recognized in Obergefell v. Hodges that gay couples have a constitutional right to marry. This decision also impacted adoption rights for same-sex couples. Although Obergefell didn't focus on adoption, some plaintiffs raised adoption-related issues. The 2015 ruling explicitly recognized that marriage equality involves adopting children.

Same-sex adoption was 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."

Adoption Rights 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.

A married couple's sexual orientation should not affect their prospects for any type of adoption. In 2022, Congress passed the Respect for Marriage Act, clarifying the federal definition of marriage. Now marriage refers to any two people whose marriage is valid under state law. This includes same-sex marriage. The same adoption rights apply to all married 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. 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.

Foster Care and Public Agency Adoption

Gay couples can be foster parents in most states and Washington, D.C. Other states may allow waivers for individual state-contracted agencies to reject LGBTQ foster care applicants.

Many children in the foster care system are available for public agency adoption. In an ideal world, the foster care system would be short-term. Children would receive care until they could return to their parents. This is not the case for many foster children; some become available for adoption.

LGBTQ foster parents may go on to adopt children from the system. You must meet specific requirements to foster a child, but the adoption process presents another set of requirements. Some of the same issues that make it challenging to adopt also apply to the foster care system.

Private Agency Placements for LGBT Adoption

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.

Private agencies establish their own criteria for prospective adoptive parents. Some of these criteria include the following:

  • Age
  • Religion
  • Fertility status
  • Marital status
  • Sexual orientation

Other private agencies are LGBTQ-friendly. Private adoptions can be preferable for some LGBTQ families for this reason. According to the Human Rights Campaign, "many LGBTQ adults choose to adopt through private agencies, especially those agencies with demonstrated sensitivity to LGBTQ applicants."

Independent and Open Adoption

Parties other than agency social workers can facilitate independent adoption. The facilitator may be a physician, an attorney, or other intermediary.

In an independent adoption, the placement decision is entirely up to the families involved. Often, the birth mother will choose her child's adoptive parents. This means unmarried couples, gay men, gay women, transgender individuals, or single adults can adopt a child.

Open adoption involves contact between the birth family and adoptive families. The adoptive and birth parents agree upon the birth parents' role in the child's life. In some states, the parties to an independent adoption must receive legal counsel. This is to ensure they are aware of their legal rights.

International Adoption for Same-Sex Couples

Adopting a child from a foreign country is another option. This involves finding an international adoption agency open to the parents' sexual orientation. The adoption agency may disclose the LGBT parents' status to either nation’s government.

In foreign adoptions, the best interest of the child is not the only consideration. Cultural standards can also influence placement decisions.

LGBTQ rights are not consistent in other countries. Unlike American adoptions, other countries may not have laws that protect gay couples adopting. This consideration may affect a same-sex couple’s adoption plan.

Adoption Options for Same-Sex Couples

Gay and lesbian couples have many adoption choices to expand their families. Below are a few common types.

Second-Parent Adoption for Unmarried Couples

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. The non-biological parent files a petition for adoption. The rest of the adoption process remains the same. A social worker conducts a home study and prepares a report for the court. Once the adoption is complete, the non-biological partner is the child's legal parent. The non-biological parent has the same legal rights as the biological parent.

To avoid Constitutional violations, the law should extend the same rights to unmarried LGBTQ couples that it does for heterosexual unmarried couples. However, in many states, only one parent in a same-sex couple may be acknowledged as the legal parent of a 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 for Married Same-Sex Couples

Although stepparent adoptions are typically for married couples, this adoption applies when one spouse has a child from a prior relationship.

In stepparent adoptions, the stepparent files a petition for adoption. 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. Depending on the state where the couple lives, a home study might be mandatory.

After the court issues the adoption decree, the parents can apply for a new birth certificate. The new birth certificate will include the stepparent's name.

Gay and lesbian adoptive parents have the same legal rights and responsibilities as heterosexual adoptive parents. This means all parents have to provide for their children, supporting their physical and emotional well-being.

Surrogacy for LGBTQ Adoption

In surrogacy, a pregnant person 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

Courts have stated that treating same-sex couples differently from heterosexual couples violates the Constitution's Equal Protection Clause. State laws must apply in the same way to same-sex couples that they apply to opposite-sex couples.

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. These laws allow exemptions from state laws based on religious beliefs.

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 religious beliefs.

Some states tried other ways to prevent gay couples from adopting. Until 2017, Arkansas refused to put both parents' names on the birth certificate for same-sex couples. Since Arkansas treated same-sex parents differently than heterosexual parents, this law was unconstitutional.

Which States Allow Religious Exemptions for LGBTQ Adoption?

Thirteen states have targeted exemption laws, a few with limited caveats, including:

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.

Despite these religious freedom exemptions, many agencies help LGBTQ+ couples become foster parents or adopt children. Choosing an agency that serves all prospective adoptive parents can help ensure an LGBTQ-friendly experience.

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. Yet, gay and lesbian adoptions often raise common questions about the process and potential discrimination issues. Getting specific adoption information for your family can be helpful.

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.

 

Was this helpful?

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.

 Find a local attorney

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.

Start Planning