Same-Sex Adoption

Same-sex adoption, joint adoption, or second parent adoption as it is more commonly known is the adoption of a child by two partners of the same sex, each with full and equal rights and responsibilities as parent. The adopted child may be related to one of the couple; indeed, as advances in artificial insemination have been made, it has become more common for same-sex couples to have a child that is biologically related to one partner, but in most cases the child is not biologically related to either partner.

Opponents of homosexuals adopting children say that it is simply not in the best interests of a child to be placed in a homosexual household. Objections include concerns that the child would be potentially exposed to pedophilia in the home, that having homosexual adopted parents could expose the child to bullying and ridicule at school, that an openly homosexual environment might affect the child’s sexuality, and that both a mother and father are needed for the development of the child.

Proponents of adoption by homosexuals characterize opposition as outmoded prejudice and cite numerous studies have shown no link between homosexual adoption and pedophilia or affect on the sexual orientation of the child. They stress that insisting on placing a child with both a mother and a father is both hypocritical, because single heterosexuals are able to adopt in almost every state, and cruel because there are simply not enough heterosexual couples willing to adopt to meet the demand, leading many children to be placed in state institutions or a succession of foster homes. They argue that same-sex couples can provide a supportive and loving environment for adopted children, a position supported by organizations such as the American Academy of Pediatrics, the American Academy of Family Physicians, the American Psychiatric Association, and the Child Welfare League of America.

Historically homosexuals have not been permitted to adopt children in the United States. For most of the history of the Unites States homosexual sodomy has been a crime, and homosexuals have been discriminated against. Homosexuals may have adopted children in the past, but the first recorded instance of an openly homosexual person successfully adopting a child in the Unites States was in California in 1982.

When considering whether to grant an adoption, the courts’ paramount concern is the ‘‘best interests of the child.’’ It is the interpretation of these best interests, rather than specific statutory language, that poses a problem to homosexuals adopting. As of 2004, only one state, Florida, had legislation prohibiting a homosexual from adopting a child as an individual (New Hampshire passed a similar provision in 1987, but this was repealed in 1999). In every other state an individual could theoretically adopt as a single person, irrespective of their sexual orientation. In practice, homosexuals in many states find it much harder to adopt children as a result of their sexuality, with some state court and welfare systems considering homosexuality to be a negative factor when considering the suitability of the would-be adoptive parent. In addition, private couples and some religious groups have fundamental moral objections to placing children with a homosexual adoptive parent. Homosexuals do experience more success when adopting severely handicapped and interracial children, groups that are traditionally shunned by those seeking to adopt.

All states allow and, indeed, prefer children to be adopted by a couple rather than an individual. Having two adoptive parents is thought to provide the child with a more stable home environment, although many argue that an equally stable environment can be created by a single parent or a parent and their unrelated spouse. No one disputes that a child is more secure when they have two parents however. If anything should happen to one parent, the child already has another that is fully recognized by the state. This recognition carries with it many extensive rights that cannot be replicated by other legal means, such as entitlements to benefits, health insurance, inheritance, child support, legal standing, and the ability to make medical decisions. The general rule with adoptions is that they can only be shared between married spouses; this creates a problem for a homosexual couple wanting to adopt and provide the same security as a married heterosexual couple.

Second parent adoptions began in California in 1986; in these cases the courts allowed children to be adopted by two people of the same sex, both with full and equal parental rights. This relatively novel idea has since spread to many other states and in 2004 was permissible across nine states and the District of Columbia as well as in some jurisdictions within a further fifteen states. Legislation barred second parent adoption in Florida, Mississippi, where same-sex couples were barred from adoption, and Utah, where only couples married according to state law could adopt as a couple, and appellate courts in Colorado, Ohio, Nebraska, and Wisconsin found such adoptions incompatible with state law. Most states had yet to formulate any widespread systematic response to demands for second couple adoptions. The situation was further complicated by the rise of same-sex unions and the status of those unions in determining eligibility to adopt as a couple.

Second parent adoptions are particularly problematic for those opposed to recognition of same-sex unions as marriage with all of its attendant benefits and responsibilities. One of the chief arguments for the state granting special privileges to married couples, such as tax breaks, rests on the time, money, and effort spent by parents raising the next generation of citizens. If same-sex couples are in civil unions with children adopted by both partners, then the argument for state recognition of same sex unions as marriage becomes stronger.

The fractured approach of states to same-sex unions and second parent adoptions is potentially most destructive when the relationship between the same-sex parents deteriorates: there are well-established procedures for dealing with issues of custody, support, and access after a divorce, both within and between states. How states that refuse to recognize same-sex unions and second parent adoptions would respond if one partner fled with the adopted child into their jurisdiction is unclear.

GAVIN J. REDDICK

References and Further Reading

• Ball, Carlos A. The Morality of Gay Rights: An Exploration in Political Philosophy. New York: Routledge, 2003.
• Lambda Legal Defense and Education Fund. https://www.lambdalegal.org, (1997–2004). Mallon, Gerald P. Gay Men Choosing Parenthood. New York: Columbia University Press, 2004.
• ‘‘National Center for Lesbian Rights: Adoption by Lesbian, Gay and Bisexual Parents: An Overview of Current Law.’’ https://www.nclrights.org, (1999–2004).

Cases and Statutes Cited

• Fla. Stat. } 63.042(3)

See also Child Custody and Adoption; Child Custody and Foster Care; Defense of Marriage Act; Family Values Movement; Gay and Lesbian Rights; Homosexuality and Immigration; Lambda Legal Defense and Education Fund; Marriage, History of; Privacy; Reproductive Freedom; Same-Sex Marriage Legalization; Sodomy Laws