Gay and Lesbian Adoptive Parents: Issues and Concerns

Yet, due to the legal and cultural history of LGBTQ rights, you may wonder what to expect. The adoption process may be the same legally. But the experience of LGBTQ adoptive parents may differ from cisgender and heterosexual adoptive parents.

This article summarizes current laws about same-sex adoptive parents and the issues facing them in family court. Find answers to common questions, including:

• Is adoption harder for LGBTQ couples?
• Is adoption by same-sex couples permitted by law?
• What are common issues facing same-sex couples who adopt?
• Can same-sex parents seek international adoptions?
• Do same-sex parents face scrutiny about child development?
• Should gay partners make a parenting agreement?
• Are there LGBTQ adoption law resources?

Is Adoption Harder for LGBTQ Couples?

In some ways, LGBTQ adoptive parents might face more difficulty despite their legal rights. Prejudice continues against gay, lesbian, bisexual, and transgender adoptive families.

The primary legal concern of adoption is the well-being of the child, not the gender roles of the parents. However, stereotyping means that some birth mothers and adoption services may prefer opposite-sex couples, sometimes unconsciously. Same-sex couples must be alert for unconscious bias.

The 2015 U.S. Supreme Court ruling, Obergefell v. Hodges, granted marriage rights to same-sex couples. The court decision also granted marital adoption rights. But the rights of gay and lesbian adoptive parents are still not fully secure. Adoption laws still lag far behind the laws which govern marriage.

Is Adoption by Same-Sex Couples Permitted by Law?

Yes. 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.

But these are not the only differences. Even when a child is born into a gay or lesbian partnership, different rules can impact the parents. This is especially true if they're an unmarried couple.

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.

Here’s how LGBTQ discrimination laws apply to different types of adoption:

• Foster care: The foster care system may pose challenges. 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, including 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.

What Are Common Issues Facing Same-Sex Couples Who Adopt?

Some things to be alert for during the adoption process 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 or identity.

• Parental rights: According to the National Center for Lesbian Rights, all LGBTQ+ couples should file for adoption if they seek parental rights. 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.

Along with discrimination, LGBTQ couples may face the same challenges other adoptive parents encounter.

Can Same-Sex Parents Seek International Adoptions?

Yes, you may pursue an adoption in countries that allow same-sex partners to apply. However, gay couples looking overseas to adopt a child may run into higher barriers than in America. Some nations prohibit international adoptions for gay and lesbian couples.

Only the following nations allow LGBTQ+ couples in the U.S. to adopt children:

• Brazil
• Colombia
• Israel
• Mexico
• Taiwan

Foreign laws affecting the LGBTQ community may change. Same-sex couples wanting to adopt from overseas should consult an attorney. They should also see an adoption agency specializing in adoptions from that country. The international adoption process may involve more challenges and requirements than in America.

Same-Sex Parents and Child Development

Many biases against same-sex adoption stem from old stereotypes about the LGBTQ community. Social workers thought the children of gay, lesbian, and bisexual parents would grow up confused about their sexual orientation. Child psychologists feared their self-esteem would suffer if their classmates bullied them due to their parents' sexual orientation.

However, these fears are not true. Studies by the American Psychological Association, the American Academy of Pediatrics, and others support a more positive outlook for children of LGBTQ parents. The adopted children of lesbian women and gay men turn out similarly to other children.

Should LGBTQ Partners Make a Parenting Agreement?

Same-sex couples, just like heterosexual couples, are encouraged to make parenting agreements. The same is true for couples with transgender or nonbinary partners. After committing to a joint parenting relationship, creating an agreement can be helpful for many reasons.

These agreements clarify the couple's understanding of their rights and responsibilities should they divorce or break up. By doing this early on, parents can save time, money, and hardship later.

What a Parenting Agreement Includes

LGBTQ couples should plan on making arrangements with respect to their children and the laws of their state. This agreement document should reflect that, although only one of them might be the legal or biological parent of the child, both people consider themselves and each other to be that child's parents.

Both parents should also indicate they understand the rights and responsibilities that come with parenting. They should express that they voluntarily assume those responsibilities. These agreements offer more certainty when they cover financial issues as well, such as the costs of education, food, and housing.

Lastly, the agreement should include a clause stating whether both parties wish to continue parenting even if their relationship ends. The legal parent can express their intention to grant visitation rights to the second parent after a breakup.

You May Want More Protection for Parental Rights

A parenting agreement is not always sufficient. Attorneys regularly recommend that non-biological parents go through the legal procedures required for second-parent or stepparent adoption to best protect one's parental rights.

This legal relationship will exist as a backup form of security. For example, you may move or travel to a state that does not recognize the parental rights of a same-sex married couple. It can protect your rights as parents and prevent unnecessary legal hurdles you and your kids might experience otherwise.

Gay and Lesbian Adoption Law Resources

There are groups for gay parents in many large cities around the country. These groups may provide resources for LGBTQ couples looking to raise children.

LGBTQ families may find additional information from the following organizations:

• Lambda Legal
• National Center for Lesbian Rights
• Gay and Lesbian Advocates and Defenders
• The American Civil Liberties Union (ACLU)

You can also seek help from your adoption attorney. Learn more about the adoption process and parents’ rights in FindLaw’s adoption guide.

Talk to an Attorney About Adopting as an LGBTQ Parent

Society has become more accepting of gay and lesbian couples, according to adoption trends. Yet, there is still resistance to same-sex relationships in some places. Whether you're bisexual, transgender, gay, or lesbian, you may have legal roadblocks to adoption.

Before making any decisions, it's important to understand these laws as well as what options are available for LGBTQ+ adoption. Contact a qualified adoption and family law attorney near you to discuss potential legal issues. Legal guidance can help you get through the adoption process with minimal surprises.