Same-sex couples wishing to adopt often face uneven legal challenges. A person's sexual orientation does not change their child-rearing goals. But family laws and policies on same-sex adoption may result in discrimination.
Same-sex adoption supporters argue that adoption fulfills the desire to form a family unit. And adoption provides stable homes to thousands of children without parents. Opponents say the traditional nuclear family — including a man and a woman — is ideal for raising kids. This section explores issues facing same-sex couples who wish to become adoptive parents. Choose from the list of titles below to learn more.
The treatment of children born or adopted into same-sex relationships varies greatly depending on the state. Rules are in a state of rapid change. Due to the Supreme Court decision in Obergefell v. Hodges, same-sex marriage is available in every state.
Courts have stated that treating same-sex couples differently from heterosexual couples violates the Constitution's Equal Protection Clause. Based on Supreme Court decisions (Obergefell and Pavan), state laws must apply in the same way to same-sex couples that they apply to opposite-sex couples.
When a married heterosexual couple has a child, both parents are automatically considered the child's "legal parents." The birth parents are legal parents. The Pavan case involved two lesbian couples who became pregnant via artificial insemination. The couples filled out paperwork to have the birth parent and their spouse listed as their child's legal parent and were denied. The court found that same-sex married parents should be treated the same as opposite-sex married parents in the inclusion of the non-biological parent's name on the child's birth certificate.
Legal parents have the right to live with their children and make decisions about their education, well-being, and health. Even if the couple divorces, both parents remain "legal parents."
The law must apply the same treatment to married same-sex couples in legal parentage. But, a gay couple may encounter problems when one-half of the couple is the biological parent and the other is not.
For example, in cases of assisted reproduction. The parent who gave birth has rights to their biological child. But some states don't recognize the non-genetic parent.
Despite court decisions that have tended to support the equal application of family laws to same-sex couples, some states' resistance to same-sex rights has been passionate and vocal. This is especially true when there are children involved. New legislation and legal battles seem likely, particularly in adoption and legal rights involving children. The treatment of children born or adopted into same-sex relationships varies greatly depending on the state. The rules are constantly changing.
The Second Parent
To avoid Constitutional violations, the law should extend the same rights to unmarried gay 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. In these situations, it helps if the other parent to petition to adopt the child as a "second parent." The adoption process for these couples is an additional hurdle to overcome.
A second-parent adoption is like a stepparent adoption. This move is crucial if the couple later divorces. Without status as a legal parent, the partner who does not hold legal rights over the child might have trouble requesting visitation or having a voice in important decisions in the child's life. Some states take the position that a second parent has no rights over the child, regardless. But other courts treat second parents as "de facto parents" with many of the same parental rights.
Same-Sex Adoption: Issues and Concerns
Along with the legal complications of adoption, children, and same-sex partners, many social issues and concerns are often discussed. This section includes discussions about many of these topics.
There are many more opportunities for gay men, lesbians, bisexuals, transgender people, and couples to parent. For instance, many become foster parents. And some of them go on to adopt children from the system. Some of the same issues that make it challenging to adopt also apply to the foster care system.
For instance, state laws can permit foster care agencies to exclude LGBTQ members from fostering based on religious beliefs. And gay couples and single parents identifying as LGBTQ can face adoption hurdles. For instance, a birth mother may prefer to place her child with a heterosexual couple rather than an LGBT couple. Or the private adoption agency is not open to gay adoptive families. International adoption may also be more challenging than domestic adoption for gay parents because some countries don't permit LGBTQ adoption.
The Human Rights Campaign has continued to monitor state laws and advocate for same-sex couples so that gay and lesbian adoption is treated equally to heterosexual adoption. The legality of same-sex adoption and parentage is rapidly changing. Be sure to contact an experienced adoption or family law attorney about the adoption laws in your state.
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.
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.