Gay and Lesbian Adoptive Parents: Issues and Concerns

Despite the 2015 U.S. Supreme Court ruling, Obergefell v. Hodges, which granted marriage rights to same-sex couples, the rights of gay and lesbian adoptive parents are not secure. Adoption laws still lag far behind the laws which govern marriage. Prejudice continues against gay, lesbian, bisexual, and transgender adoptive families.

This article summarizes current laws about same-sex adoptive parents and the issues facing them in family court.

Is Adoption by Same-Sex Couples Permitted by Law?

Under the ruling in Obergefell, all 50 states must recognize same-sex marriage. Same-sex couples should receive the same "benefits and privileges" of marriage. This includes the right to adopt. Mississippi was the last state to have an official policy against gay and lesbian adoption. This policy was struck down in 2016.

This is not the same as a protected right to adoption. Only 28 states and Washington, D.C., have laws preventing bias against same-sex couples during adoption. Other state laws allow some discriminatory practices. Or they are silent about discrimination. Several states allow adoption agencies to discriminate because of religious preferences.

Types of Child Welfare Discrimination Laws

State laws can protect against discrimination, or they may punish discriminatory behavior. The ruling in Obergefell prevents most overt discriminatory laws. But it does not order states to pass protective laws. It does not prevent states from allowing religious discrimination.

• Foster care: Twenty-two states allow discrimination against LGBTQ couples during foster placements. This affects both foster parents and foster children. Heterosexual couples will always be considered for placement, even for transgender youth.
• Adoption placement: Twenty-two states allow adoption agencies to discriminate against LGBTQ couples during adoptions. They provide no legal recourse for gay parents if they encounter such discrimination.
• Second-parent adoption: Under Obergefell, all married parents become the de facto parents of their spouse's existing children. Stepparents, single parents, and other unmarried couples must petition for second-parent adoption. Only 20 states and D.C. allow any parent to petition for second-parent adoption. This affects single parents regardless of sexual orientation.
• Child welfare: Only 13 states have LGBTQ+ cultural competency training for child welfare staff and foster or prospective adoptive parents. Only 14 have guidance about transgender youth placement in foster or transitional housing.

Only 35 states and D.C. have policies against discrimination based on sexual orientation and gender identity in the child welfare system. California, Massachusetts, Illinois, and New York have complete protections in their juvenile system.

Issues Facing Same-Sex Couples

Some things to be alert for during the procedure include:

• Home study: The adoption agency will visit the family home to assess the family structure. The workers want to know how the parents interact and understand the atmosphere in the home. Prospective parents should be alert for intrusive questions about their sexual habits.
• Parental rights: According to the National Center for Lesbian Rights, all LGBTQ+ couples should file for adoption. This is also true for unmarried couples, stepparents, and others in a co-parenting situation. Marital status is not a guarantee of parental rights.
• Institutional bias: Courts and child welfare agencies still have preferences for heterosexual parents. Decades of advocacy have shown that children of gay and lesbian parents fare as well as children of heterosexual parents. There are no affirmative laws in effect to place a child with an available gay or lesbian family.

Same-Sex Parents and International Adoptions

Gay couples looking overseas to adopt a child may run into barriers higher than those in America. Some nations prohibit international adoptions to gay and lesbian couples. Only the following nations will allow LGBTQ+ couples in the U.S. to adopt children:

• Brazil
• Colombia
• Israel
• Mexico
• Taiwan

Same-sex couples wanting to adopt from overseas should consult an attorney. They should see an adoption agency specializing in adoptions from that country. There may be more involved in the adoption than in America.

Same-Sex Parents and Child Development

Many biases against same-sex adoption stem from old stereotypes about gays and lesbians. Social workers thought the children of gay fathers and lesbian mothers would grow up confused about their sexual orientation. Child psychologists feared their self-esteem would suffer. They would be victims of bullying by their classmates due to their parents' sexual orientation.

Studies by the American Psychological Association, the American Academy of Pediatrics, and others, show this is not true. The adopted children of lesbian women and gay men turn out similarly to other children.

Talk to an Attorney About Gay and Lesbian Adoptive Parents

Our society has become more accepting of gay and lesbian relationships and parenting. There is still resistance to same-sex relationships in some places. Contact a qualified adoption attorney near you to discuss same-sex adoptions. You need legal guidance to get through the adoption process.