LGBT adoption in the United States

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Same-sex couples are now allowed to adopt children in all 50 states after a Federal District Court struck down Mississippi's ban on March 31, 2016.[1] On June 26, 2017, the United States Supreme Court reversed an Arkansas Supreme Court ruling that allowed a law listing parents by gender on birth certificates to stand. The new SCOTUS ruling allowed both same-sex spouses to be listed on birth certificates.[2] These court rulings have made adoption by same-sex couples legal in all 50 states.

Before these rulings, adoption laws varied by state. Some states granted full adoption rights to same-sex couples, while others banned same-sex adoption or only allowed one partner in a same-sex relationship to adopt the biological child of the other. Despite these rulings, LGBTQ people and same-sex couples still face discrimination when attempting to foster children.[3]

Attitudes toward same-sex parenting have improved as the number of same-sex couples and same-sex parenting overall has increased in the United States. From 2007 to 2011, public condemnation of same-sex parenting in the U.S. dropped from 50% to 35%, while acceptance has remained relatively stable.[4]

Background[edit]

On April 6, 1999, the American Civil Liberties Union produced an Overview of Lesbian and Gay Parenting, Adoption and Foster Care. In this document, the organization addressed research results on Lesbian and Gay Parenting. Key findings include:[5]

  • There is no evidence to suggest that lesbians and gay men are unfit to be parents.
  • Home environments with lesbian and gay parents are just as likely to successfully support a child's development as those with heterosexual parents.
  • Good parenting is not influenced by sexual orientation. Rather, it is influenced most profoundly by a parent's ability to create a loving and nurturing home, an ability that does not depend on whether the parent is gay or straight.
  • There is no evidence to suggest that the children of lesbian and gay parents are less intelligent, suffer from more problems, are less popular, or have lower self-esteem than children of heterosexual parents.
  • Children of lesbian and gay parents grow up as happy, healthy, and well-adjusted as the children of heterosexual parents.[6]

Some researchers have written that children of gay and lesbian families often are subjected to teasing and harassment in their peer groups.[7][8]

Formerly, many children raised by same-sex parents had been born into one of their parents' previous heterosexual relationships.[9] As such, many prior legal disputes were over child custody in cases of a divorce. There were biases against the parent who was in a now same-sex relationship; these biases caused courts to disfavor them in awarding custody and visitation rights. The sexual preference of the LGBTQ+ parent, and not his or her ability to provide for the child's needs, was viewed as a negative impact on the child's upbringing.[9] The introduction of in vitro fertilization enabled lesbian couples to raise children of their own who had not been born from heterosexual relationships.[9] The development of in vitro fertilization created controversy about co-parent adoption and, in cases where lesbian couples separated, child custody. It also generated controversy about the presumption of parenthood: when a woman in a heterosexual marriage gives birth, her husband is legally presumed to be the child's father, but courts have only recently extended this privilege to lesbian couples.[10]

For male same-sex couples becoming a parent can be more costly because surrogacy is the only way for them to have a biological child.[11] As such, adoption is the more cost-effective alternative.

Statistics[edit]

The percentage of same-sex couples adopting in the 21st century has tripled since the 1990s. U.S. Census data from 2010 revealed that same-sex couples are adopting children in growing numbers despite the legal barriers in some states.[12] This data indicates that, of the 115,064 same-sex households with children, about 18,400 (16%) were raising at least one adopted child,[12] with 11% of those households being gay male couples.[13]

According to the Williams Institute, as of 2009, "an estimated 20,000 same-sex couples are raising nearly 30,000 adopted children."[14] As of 2011, about two million children in the U.S. were being raised by LGBT parents but could not establish a legal relationship with both parents.[15] The 2010 U.S. Census reported that same-gender couples were raising about 115,000 children 18 years and younger and were living in nearly every county in the United States.[16]

Professional Assessment[edit]

There is consensus among the medical, psychological, and social welfare communities that children raised by gay and lesbian parents are just as likely to be well-adjusted as those raised by heterosexual parents.[17] Research to support this conclusion is accepted beyond debate in the field of developmental psychology.[18] In 2010, the Third District Court of Appeals of the State of Florida concluded that "based on the robust nature of the evidence available in the field [...] the issue is so far beyond dispute that it would be irrational to hold otherwise; the best interests of children are not preserved by prohibiting homosexual adoption".[19] The most important factors in maintaining a child's welfare depend more on socioeconomic status and less on the gender and sexuality of the parents. Issues arise from uncontrolled factors such as discrimination or the inability of parents to get married.[20]

Some individuals who oppose child rearing by gay and lesbian couples fear that it will result in the child becoming gay or lesbian themselves.[21] However, data does not support this claim.

A qualitative study done by Goldberg, Kinkler, Richardson, and Downing surveyed couples in same-sex and heterosexual relationships who had adopted children through open adoption because little prior research had focused on the effects of gender and sexual orientation in open adoption relationships. Data from 90 individuals, 30 women in 15 lesbian relationships; 30 men in 15 gay relationships, and 15 women and 15 men in heterosexual relationships, were analyzed. All couples were adopting their first child, and the parents were all first-time parents. The study was done within the borders of the United States. Participants filled out a questionnaire and were interviewed by telephone three to four months after adopting their child. All participants were between the ages of 27 and 52 (average 37.7 years), and 90% were Caucasian. Results indicated that gay and lesbian couples tended to emphasize openness and a desire to pursue adoption without hiding their sexual orientation. The birth mother was the consistent birth family member to keep in touch with the adoptive family, and significantly influenced the shaping of open adoption relationships.[22]

Public opinion[edit]

A 2007 poll by CNN and Opinion Research Corporation found that 57% of respondents believed that same-sex couples should have the right to adopt, while 40% felt that they should not.[23] More recently, a Gallup poll from May 2014 found that 63% of respondents believed same-sex couples should have the legal right to adopt a child.[24]

From 1994 to 2012, seven national polling organizations asked representative samples of Americans their opinions about the legalization of same-sex adoption, with the main question being: "Do you think there should or should not be adoption rights for gays and lesbians so they can legally adopt children?" Survey results from 1994 to 2012 indicate a rise in support. In 1994 survey responses, about one in four (28%) favored same-sex adoption, while in 2012 about five in ten (50%) favored such adoption. In studies from 1994 to 1999, only one out of every three Americans (33%) favored same-sex adoption; from 2002 to 2008, support increased to four in ten (40% favorability). From 2009 to 2012, a majority (from 52% to 61%) approved legalizing same-gender adoption,[25] with greater support expressed among young people than among those over 65 years of age.[25] It was also found that 85% of the Democrats asked were in support of same-sex adoption, while only 23% of the Republicans asked were in support of it.[25]

In June 2018, a YouGov poll found that over half of Americans (55%) believed that heterosexual and homosexual couples could be equally good parents. Majorities also supported allowing gay (53%) and lesbian (55%) couples to adopt and raise children. When asked whether gay and straight couples can be equally good parents, 38% of respondents “strongly” agreed. Women (47%) were significantly more likely than men (30%) to strongly agree with this statement. However, most respondents (57%) also expressed the belief that a child should be raised by both a mother and a father. Another 15% “strongly” or “somewhat” disagreed with that idea. In this case, men (47%) were more likely than women (30%) to strongly agree with the statement that children should be raised by a mother and father. When asked if lesbian couples should be able to adopt and raise children, 55% said yes while 29% said no. When asked about gay male couples, 53% agreed and 32% disagreed. In both instances, women were significantly more likely than men to agree to same-sex couple adoption. Almost half of Americans (47%) said that it was unfair that child-welfare agencies can refuse to place a child with a same-sex couple based on religious objection, while one-third (33%) said it was fair. Forty-six percent supported a Connecticut initiative to recruit members of the LGBT community to become foster and adoptive parents, but twenty-nine percent opposed that measure.[26]

Research conducted by Andrew L Whitehead and Samuel L Perry suggests that rising support of adoption by same-sex couples does not indicate changing normative stereotypes about homosexuality. Even when asked questions that suggested that the well-being of the children of same-sex couples was lower, survey respondents tend to support adoption by same-sex parents. This research suggests that rising public support may not be a result of growing acceptance of the LGBT community, but rather from growing resentment towards state-funded foster programs.[27]

Professional organizations[edit]

Professional organizations that support gay and lesbian families adoption include the Child Welfare League of America, the American Psychiatric Association, the American Psychological Association, the American Academy of Pediatrics, and the National Association of Social Workers (NASW).

Politics[edit]

On July 29, 1999, U.S. Representative Steve Largent introduced amendment 356 (H.Amdt. 356) to the District of Columbia Appropriations Act, 2000 (H.R. 2587) which would have banned joint adoption between individuals unrelated by blood or marriage in Washington, D.C. The amendment failed with 213 votes in favor and 215 opposed.

In 2004, Jeb Bush, Governor of Florida, was quoted saying: "[I]t is in the best interest of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored both by a father and a mother."[28]

On May 10, 2012, Republican presidential candidate Mitt Romney told an interviewer: "And if two people of the same gender want to live together, want to have a loving relationship, or even to adopt a child – in my state individuals of the same sex were able to adopt children. In my view, that's something that people have a right to do." Asked the next day to reconcile that with his opposition to same-sex marriage, he said: "Well actually I think all states but one allow gay adoption, so that's a position which has been decided by most of the state legislators, including the one in my state some time ago. So I simply acknowledge the fact that gay adoption is legal in all states but one."[29]

Currently,[when?] there are legal appeals in a number of states to allow for co-parent adoption, commonly known as second parent adoption, whereby one parent can adopt the biological child of their same sex partner without voiding their partner's parental guardianship over the child.[30] This allows the child to be recognized as having two legal parents in cases where the couple is not in a relationship recognized by the state.[30]

Gay and Lesbian Policy:

  • Made on the state rather than the federal level and are dictated by statuses, agency regulations, and court opinions, which can be fueled by political ideologies (Kenyon 2003). For the states that let gay couples adopt, most require that adoptive couples must be married; in the states without specific relevant laws, this issue is addressed based on the best interest of the child-Adoption and Safe Families Act of 1997

Legal status[edit]

Law on same-sex adoption[edit]

Federal Law[edit]

On May 16, 2013, the Every Child Deserves a Family Act was introduced to Congress, but was not enacted.[31] The act would have stipulated that any organization that deals with foster and adoptive care of children and has some form of funding from the federal government could not discriminate against "prospective adoptive or foster parents solely on the basis of their sexual orientation, gender identification, or marital status or on the basis of the sexual orientation or gender identity of the child involved."[32] However, as the bill introduced only applied to centers that are federally funded, private institutions would still have been able to refuse same-sex couples from adopting. In January 2019, the state of South Carolina applied for and was granted a waiver to let adoption agencies block same sex couples from adopting or becoming foster parents. A Greenville couple has filed a lawsuit in this case and its outcome is pending.[33]

State Law[edit]

As of 2021, each state is able to make its own laws about LGBTQ discrimination in foster care, second parent adoption, and parental presumption in same-sex relationships. Many states still either explicitly allow discrimination within the foster care system and adoption placement or have no laws to prevent discrimination. Most states also do not require training for foster parents regarding LGBTQ youth. Many states also do not permit second parent adoptions for same-sex couples regardless of whether their relationship is legally recognized. Other states do not presume that a parental relationship exists with any children born of that marriage for both parents in a same-sex marriage as they would for children born of an opposite sex relationship.[3]

Laws Regarding LGBT Adoptions by State[3]
State Second Parent Adoption Foster Care Non-Discrimination Laws Foster Care Parent Training Required Parental Presumption for Same-Sex Couples Laws Permitting Discrimination in Adoption/Foster Placement
Alabama no no no no yes
Alaska no no no yes no
Arizona no no no yes yes
Arkansas no no no no no
California yes yes yes yes no
Colorado yes yes no yes no
Connecticut yes yes no yes no
Delaware yes no no yes no
District of Columbia yes yes yes yes no
Florida no no no yes no
Georgia no no no no no
Hawaii no no no yes no
Idaho yes no no no no
Illinois yes yes no yes no
Indiana no no no yes no
Iowa no yes no yes no
Kansas no no no no no
Kentucky no no no no no
Louisiana no no no no no
Maine yes no no yes no
Maryland yes no no no no
Massachusetts yes yes yes yes no
Michigan no no no no yes
Minnesota no yes yes yes no
Mississippi no no no no yes
Missouri no no no no no
Montana yes no no no yes
Nebraska no no no no no
Nevada no no yes yes no
New Hampshire yes yes no yes no
New Jersey yes yes no yes no
New Mexico no yes yes yes no
New York yes yes no yes no
North Carolina no no no yes no
North Dakota no no no no yes
Ohio no yes no no no
Oklahoma no no no no yes
Oregon yes yes no yes no
Pennsylvania yes no no no no
Rhode Island yes yes no yes no
South Carolina no no no no yes
South Dakota yes no no no yes
Tennessee no no no no yes
Texas no no no yes yes
Utah no no yes yes no
Vermont yes yes no yes no
Virginia no no no no yes
Washington no no no yes no
West Virginia no no no no no
Wisconsin no yes no yes no
Wyoming no no no no no

Cases[edit]

Alabama[edit]

On October 12, 2012, an anonymous Alabama Court of Civil Appeals turned down the request of a woman to adopt her same-sex spouse's child. The couple had been married in California. The court held that Alabama law did not recognize the women as spouses.[34]

On September 18, 2015, the Supreme Court of Alabama reversed lower courts that recognized an adoption judgment granted to a same-sex couple over their three children in 2007 by the Superior Court of Fulton County, Georgia. The court ruled that the Georgia state court misapplied Georgia state law in granting the adoption. In the case of V.L. v. E.L.. E.L., biological mother of the three children, who sought to reverse an order recognizing the adoption decree, argued the Georgia decree was void based upon that court lacking subject matter jurisdiction. The Supreme Court of Alabama agreed, voiding the decree's recognition in-state and nullifying the parental rights of V.L. On November 16, V.L. petitioned the United States Supreme Court to stay the order stripping her of her parental rights and to allow her to see her children during the appeals process. On December 14, the Supreme Court granted her request for a stay of the ruling pending their disposition of V.L.'s petition for a writ of certiorari. This is the first adoption case that has made it to the Supreme Court since Obergefell was decided.[35]

On March 7, 2016, the United States Supreme Court unanimously reversed the Supreme Court of Alabama. The court ruled that the Alabama Supreme Court was incorrect when it refused to recognize the adoption decree from Georgia, ruling that the Full Faith and Credit Clause had been violated. The court's decision had the effect of the adoption decree from Georgia being recognized in Alabama, and V.L.'s parental rights being restored. The case was remanded to the Supreme Court of Alabama for further proceedings.[36]

Arkansas[edit]

On November 4, 2008, Arkansas voters approved Act 1, a measure to ban anyone "cohabitating outside of a valid marriage" from being foster parents or adopting children. Although the law could apply to heterosexual couples, it was believed to have been written to target gay couples due to the fact that same-sex marriage was prohibited in that state, thereby making an adoption impossible.[37] Single gay men and lesbians were still allowed to adopt in Arkansas. The law was overturned on April 16, 2010 by state judge Chris Piazza.[38] The Arkansas Supreme Court in Arkansas Department of Human Services v. Cole upheld the lower court's decision on April 7, 2011.[39]

In Arkansas, state Circuit Judge Tim Fox of Pulaski County ruled on December 1, 2015, that a state law restricting parental identification on birth certificates to heterosexual couples was unconstitutional. His ruling initially applied only to the three couples who originally sued in this case, Pavan v. Smith. Two days later, he broadened the ruling to apply statewide. On December 10, 2015, the Supreme Court of Arkansas stayed the statewide applicability, but allowed the three plaintiff couples to receive their amended certificates. [40] On December 9, 2016, the Supreme Court of Arkansas reversed the trial court's order.[41]

On June 26, 2017, the U.S. Supreme Court granted the petition for a writ of certiorari sought by the plaintiff parents and reversed the Arkansas Supreme Court. The Court held by a 6-3 vote that Arkansas' law only allowing for opposite-sex couples to be named on their children's birth certificates was an unconstitutional breach of their ruling in Obergefell v. Hodges.[citation needed]

Florida[edit]

In Florida, a 1977 law prohibited adoption by homosexuals following the anti-gay Save Our Children campaign led by Anita Bryant. In November 2008, a state circuit court struck down the law in In re: Gill, a case involving a gay male couple raising two foster children placed with them in 2004 by state child welfare workers.[42] On appeal, on September 22, 2010, Florida's Third District Court of Appeals unanimously upheld the decision of the lower court. The state did not appeal.[43] The 1977 law that banned homosexuals from adoption was repealed on July 1, 2015.[44]

In Florida, a case was brought before federal District Judge Robert Hinkle of the United States District Court for the Northern District of Florida. The Florida Department of Health refused to issue a birth certificate recognizing both partners in a same-sex relationship. The plaintiffs in the case asked Judge Hinkle to declare this policy unconstitutional. He set a deadline of January 6, 2016, for the Department of Health to reply to plaintiffs' motion for summary judgment. In January 2017, Florida reached a settlement with the plaintiffs, agreeing to issue correct birth certificates to all married same-sex couples on an equal basis.[45]

Idaho[edit]

In 2013, a lesbian couple, married in California but now living in Idaho, petitioned for second-parent adoption. A state magistrate denied the petition on the grounds that Idaho did not recognize their marriage. On appeal, the Idaho Supreme Court unanimously reversed the magistrate's ruling because Idaho has no specific statutory ban on unmarried second-parent adoption.[46]

Illinois[edit]

Second parent adoption for LGBT couples in Illinois became legal in 1995 after a ruling in favor of K.M. and D.M. (a lesbian couple) to adopt Olivia M. (the biological child of K.M.) and K.L. and M.M. (another lesbian couple) to adopt Michael M. and David M. (David is the biological child of K.L. and Michael is the adoptive child of K.L.).[47] In this case, the court "held that unmarried same-sex cohabitants have standing to jointly petition for adoption as the statutory provisions allow a reputable person of legal age to adopt, and provisions in the singular should be read to include the plural".[48] They argued that because Illinois adoption law explicitly calls for liberal interpretation and a focus on the best interest of the child, the adoptions should be legal. Even though likely the law was not initially intended to allow for LGBT couples to adopt, they argued that other states (such as Vermont) with similar laws had ruled in favor of second parent adoptions for unmarried LGBT couples and that if the legislature specifically wanted to prevent such an adoption they could have written the law as such[49]..

Indiana[edit]

In Indiana, there are two cases pending in the United States District Court for the Southern District of Indiana – one filed in February 2015, and one in December 2015 – against a policy identical to Florida's. The February case addresses issues more specific to the ruling by the Seventh Circuit Court of Appeals in the case Wolf v. Walker due to the fact Obergefell had not yet been decided. The December case cites Obergefell as reason for ordering the state to list both parents in a same-sex relationship on birth certificates. No action has been made in either case.[50]

Kansas[edit]

In November 2012, the Kansas Court of Appeals ruled in the case In the Matter of the Adoption of I.M. that a single person who is not a biological parent of a child cannot petition to adopt that child without terminating the other parent's parental rights. Since Kansas did not recognize same-sex marriages, this ruling effectively prevents same-sex couples from second-parent adoption in Kansas.[51] However, the Kansas Supreme Court ruled on February 22, 2013, in Frazier v. Goudschaal that a partner of a biological parent is entitled to parental rights.[52]

Michigan[edit]

In December 2012, the Michigan Court of Appeals ruled that the state's adoption code permits second parent adoptions by same-sex couples.[53]

A female same-sex couple, who were raising three children, who adopted one of them, filed a lawsuit in federal court in January 2012 seeking to have the state's ban on adoption by same-sex couples overturned.[54] And in September amended that suit to challenge the state's ban on same-sex marriage as well.[55]

On June 26, 2015, the Supreme Court of the United States ultimately ruled in their favor in Obergefell v. Hodges.[citation needed]

Mississippi[edit]

33% of Mississippi's households headed by same-sex couples include a child, the highest such percentage in the nation.[56] Nevertheless, Mississippi's Domestic Relations Code states: "Adoption by couples of the same gender is prohibited."[57] A lawsuit, Campaign for Southern Equality v. Mississippi Department of Human Services, was filed in August 2015 by four Mississippi same-sex couples seeking to overturn this law.[58] The plaintiffs in that case are represented by Roberta Kaplan, who successfully argued United States v. Windsor before the U.S. Supreme Court. Mississippi was the only U.S. state to not have legal joint adoption rights for LGBT couples; the only other jurisdictions under U.S. sovereignty where this is the case are American Samoa and some Native American tribal nations.[59]

In Mississippi, a state law passed in 2000 which explicitly prohibits same-sex couples from joint adoption. After Obergefell, Mississippi has specifically stated that its ban remains in effect. On August 12, 2015, the Southern Poverty Law Center joined by four same-sex couples raising children filed suit in the United States District Court for the Southern District of Mississippi seeking to declare the statute unconstitutional.[60]

On March 31, 2016, Judge Daniel P. Jordan III issued a preliminary injunction striking down Mississippi's ban on same-sex couples from adoption, ruling that the ban violates the Equal Protection Clause. There were no immediate plans by the state of Mississippi to appeal the ruling to the U.S. Court of Appeals for the Fifth Circuit.[61]

Nebraska[edit]

Three same-sex couples filed a lawsuit against the state on August 27, 2013, seeking the right to serve as foster and adoptive parents. The lawsuit claimed that the state's policy against allowing two unrelated adults to adopt has been consistently enforced only against same-sex couples.[62]

New York[edit]

An October 2012 court ruling in a custody dispute between two women in a same-sex relationship awarded custody to the adoptive parent rather than the biological mother.[63]

Wisconsin[edit]

In Wisconsin, the state has allowed both parents to be on the birth certificate, but refuses to change the wordage from "father and mother" to a gender-neutral "parent 1 and parent 2." In another case, a couple was outright rejected in their request. A federal lawsuit has been filed challenging this refusal.[64] There is also a state lawsuit, Torres v. Rhoades, challenging the birth certificate wordage. On November 4, a judge dismissed Torres because the couple initiated the case as an adoption, but the judge ruled they did not properly attack the constitutionality of the statutes that used the term "father and mother" or "husband and wife." On November 17, the Second District Court of Appeal in Wisconsin agreed with the lower court. The couple could now appeal the case to the Supreme Court of Wisconsin or they could go back to the trial court with a case challenging the constitutionality of the statutes that require the terms "father and mother."[citation needed]

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