{"id":351547,"date":"2016-04-04T11:02:24","date_gmt":"2016-04-04T16:02:24","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/family\/adoption\/adoption-and-same-sex-couples-basics.html"},"modified":"2025-01-28T12:13:00","modified_gmt":"2025-01-28T17:13:00","slug":"adoption-and-same-sex-couples-basics","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/family\/adoption\/adoption-and-same-sex-couples-basics.html","title":{"rendered":"Adoption and Same-Sex Couples: Overview"},"content":{"rendered":"\n
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Adoption and Same-Sex Couples: Overview<\/h1>\n
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\n By Melissa McCall, J.D.<\/a> | Legally reviewed by Melissa Bender, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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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.<\/p>\n\n <\/div>\n\n

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.<\/p>\n

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

LGBTQ Adoption Legal Basics<\/h2>\n

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.<\/p>\n

The adoption process is a legal process. This means an adoption is only complete after a probate or family court approves the adoption.<\/p>\n

Adoptions are a matter of state law. Each U.S. state regulates adoption within its borders, and adoption laws differ from state to state.<\/p>\n

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.<\/p>\n

How Court Rulings Shaped LGBTQ Adoption Laws<\/h2>\n

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

Same-sex adoption was different before Obergefell. <\/i>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.<\/p>\n

Obergefell <\/i>threw the legality of Mississippi’s law into doubt. One year later, a Mississippi federal court blocked the state from enforcing<\/a> 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 \u2014 which includes the right to adopt."<\/p>\n

Adoption Rights Post-Obergefell<\/h3>\n

Although Obergefell<\/i>‘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<\/i> 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.<\/p>\n

Under Obergefell<\/i>, 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.<\/p>\n

A married couple’s sexual orientation should not affect their prospects for any type of adoption. In 2022, Congress passed the Respect for Marriage Ac<\/a>t<\/a>, 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.<\/p>\n

The Adoption Process<\/h2>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

This basic process should apply to all prospective parents, regardless of their sexual orientation.<\/p>\n

Foster Care and Public Agency Adoption<\/h3>\n

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.<\/p>\n

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.<\/p>\n

LGBTQ foster parents may go on to adopt children from the system. You must meet specific requirements to foster<\/a> 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<\/a>.<\/p>\n

Private Agency Placements for LGBT Adoption<\/h3>\n

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.<\/p>\n

Private agencies establish their own criteria for prospective adoptive parents. Some of these criteria <\/a>include the following:<\/p>\n