LGBT adoption

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LGBT adoption is the adoption of children by lesbian, gay, bisexual and transgender (LGBT) persons. This may be in the form of a joint adoption by a same-sex couple, adoption by one partner of a same-sex couple of the other's biological child (step-parent adoption), and adoption by a single LGBT person.

Adoption by same-sex couples is legal in 14 countries as well as in the jurisdictions of several more. Adoption by same-sex couples is however prohibited by a majority of countries, although debates in many jurisdiction take place to allow it. The main concern raised by those opposed to LGBT adoption is the question of whether same-sex couples have the ability to be adequate parents. As the matter is often not specified by law (or deemed unconstitutional), legalization often takes place via judicial opinions.

A consensus has developed 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.[1] The research supporting this conclusion is accepted beyond serious debate in the field of developmental psychology.[2] Based on the robust nature of the evidence available in the field, Third District Court of Appeal State of Florida was satisfied in 2010 that 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.[3]

Contents

LGBT parenting

Main article: LGBT parenting

The existing body of research on outcomes for children with LGBT parents includes limited studies that consider the specific case of adoption. Moreover, where studies do mention adoption they often fail to distinguish between outcomes for unrelated children versus those in their original family or step-families, causing research on the more general case of LGBT parenting to be used to counter the claims of LGBT-adoption opponents.[4] One study has addressed the question directly, evaluating the outcomes of adoptees less than 3-years old who had been placed in one of 56 lesbian and gay households since infancy. Despite the small sample and the fact that the children have yet to become aware of their adoption status or the dynamics of gender development, the study found no significant associations between parental sexual orientation and child adjustment, making the results consistent with notions that two parents of the same gender can be capable parents and that parental sexual orientation is not related to parenting skill or child adjustment. The findings point to the positive capabilities of lesbian and gay couples as adoptive parents.[5]

Objections to and support for LGBT adoption

Adoption of children by LGBT people is an issue of active debate. In the United States, for example, legislation to stop the practice has been introduced in many jurisdictions; such efforts have largely been defeated, with the exception of Arkansas Act 1. There is agreement between the debating parties, however, that the welfare of children alone should dictate policy.[4] Supporters of LGBT adoption suggest that many children are in need of homes and claim that since parenting ability is unrelated to sexual orientation, the law should allow them to adopt children.[4] Opponents, on the other hand, suggest that the alleged greater prevalence of depression, drug use, promiscuity and suicide among homosexuals (and alleged greater prevalence of domestic violence) might affect children [6] or that the absence of male and female role models could cause maladjustment.[7] Catholic Answers, a Catholic religious group, in its 2004 report on gay marriage addressed parenting by homosexual partners via adoption or artificial insemination. It pointed to studies finding higher than average abuse rates among heterosexual stepparent families compared with families headed by biological parents.[8][9] The American Psychological Association, however, notes that an ongoing longitudinal study found that none of the lesbian mothers had abused their children. It states that fears of a heightened risk of sexual abuse by gay parents are not supported by research.[10]

Several professional organizations have made statements in defense of adoption by same-sex couples. The American Psychological Association has supported adoption by same-sex couples, citing social prejudice as harming the psychological health of lesbians and gays while noting there is no evidence that their parenting causes harm.[11][12][13] The American Medical Association has issued a similar position supporting same-sex adoption, stating that while there is little evidence against the practice, lack of formal recognition can cause health-care disparities for children of same-sex parents.[14]

Britain's last Catholic adoption society announced that it would stop finding homes for children if forced by legislation to place children with same-sex couples.[15] The Muslim Council of Britain also sided with Catholic adoption agencies on this issue. [16] Catholic Charities of Boston also ended its founding mission of adoption work rather than comply with state laws conflicting with its religious practices.[17]

Public opinion

A 2006 poll by the Pew Research Center found a close divide on gay adoption among the United States public, while a 2007 poll by CNN and Opinion Research Corp. said 57% of respondents felt gays should have the right to adopt and 40% said they should not.[18] In the United Kingdom in 2007, 64% of people said they thought gay couples should be allowed to adopt and 32% said they should not. 55% of respondents thought that male couples should be able to adopt and 59% of people thought that lesbian couples should be able to adopt.[19] In Brazil, a 2010 poll asked, "Do you support or oppose allowing gay couples to adopt children?" The poll found that 51% opposed adoption by same-sex couples and 39% supported it.[20] An opinion poll conducted in late 2006 at the request of the European Commission indicated that Polish public opinion was generally opposed to both same-sex marriage and to adoption by gay couples. The Eurobarometer 66[21] poll found that 74% of Poles were opposed to same-sex marriage and 89% opposed adoption by same-sex couples.

Legal status around the world

Full joint adoption by same-sex couples is currently legal in the following countries:

Full joint adoption by same-sex couples is currently legal in the following jurisdictions:

In the following countries, "stepchild-adoption" is permitted, so that the partner in a registered partnership (or unregistered cohabitation in Israel) can adopt the natural (or sometimes even adopted) child of his or her partner:

In the following jurisdictions, "stepchild-adoption" is permitted, so that the partner in a civil union can adopt the natural (or sometimes even adopted) child of his or her partner:

Africa

South Africa

South Africa is the only African country to allow joint adoption by same-sex couples. The 2002 decision of the Constitutional Court in the case of Du Toit v Minister of Welfare and Population Development amended the Child Care Act, 1983 to allow both joint adoption and stepparent adoption by "permanent same-sex life partners".[54] The Child Care Act has since been replaced by the Children's Act, 2005, which allows joint adoption by "partners in a permanent domestic life-partnership", whether same- or opposite-sex, and stepparent adoption by a person who is the "permanent domestic life-partner" of the child's current parent.[55] Same-sex marriage has been legal since 2006, and is equivalent to opposite-sex marriage for all purposes, including adoption.

Asia

Israel

A January 2005 ruling of the Israeli Supreme Court allowed stepchild adoptions for same-sex couples. Israel previously allowed limited co-guardianship rights for non-biological parents.[56] Then in February 2008, a court in Israel ruled that same-sex couples are now permitted to adopt a child even if that child is not biologically related to either parent.[57] This marked a watershed in granting equal rights to all gay people in Israel.[57] isRealli, the official blog of the State of Israel, frequently publishes updates on gay adoption news in Israel. The site also has a complete timeline of gay rights milestones in Israel.

Europe

In February 2006, France's Court of Cassation ruled that both partners in a same-sex relationship can have parental rights over one partner's biological child. The result came from a case where a woman tried to give parental rights of her two daughters to her partner whom she was in a civil union with.[58] In the case of adoption, however, in February 2007, the same court ruled against a lesbian couple where one partner tried to adopt the child of the other partner. The court stated that the woman's partner cannot be recognized unless the mother withdrew her own parental rights.[59][60]

In 1998, a nursery school teacher from Lons-le-Saunier, living as a couple with another woman, had applied for an authorization to adopt a child from the département (local government) of Jura. The adoption board recommended against the authorization because the child would lack a paternal reference, and thus the president of the département ruled against the authorization.[61] The case was appealed before the administrative courts and ended before the Council of State, acting as supreme administrative court, which ruled against the woman.[62] The European Court of Human Rights concluded that these actions and this ruling were a violation of Article 14 of the European Convention on Human Rights taken in conjunction with Article 8.[61][63]

On June 2, 2006, the Icelandic Parliament unanimously passed a proposal accepting adoption, parenting and assisted insemination treatment for same-sex couples on the same basis as heterosexual couples. The law went into effect on June 27, 2006.

North America

Canada

In Canada, adoption is within provincial/territorial jurisdiction, and thus the laws may differ from one province or territory to another. Adoption by same-sex couples is legal in every province and territory.[26][27][28][29][30]

Mexico

In Mexico City, the Legislative Assembly of the Federal District passed legislation on 21 December 2009 enabling same-sex couples to adopt children.[64] Eight days later, Head of Government ("Mayor") Marcelo Ebrard signed the bill into law, which officially took effect on 4 March 2010.[46][65]

United States

According to a report by the Williams Institute, in 2007 there were 270,000 children in the United States who lived with same-sex couples. Of these, one-quarter, or 65,000, were adopted.[66]

In the U.S., states may restrict adoption by sexual orientation or marital status. Furthermore, since adoptions are mostly handled by local courts in the United States, some judges and clerks accept or deny petitions to adopt on criteria that vary from other judges and clerks in the same state,[67] leading to a confused or ambiguous legal status for same-sex parents in some states.

According to Lambda Legal, which has represented many same-sex couples in state and federal courts:[68]

The rights of LGBT parents vary widely among states. About half of all states permit second-parent adoptions by the unmarried partner of an existing legal parent, while in a handful of states courts have ruled these adoptions not permissible under state laws. This leaves parents in many states legally unrecognized or severely disadvantaged in court fights with ex-spouses, ex-partners or other relatives. Additionally, barriers exist in assisted reproduction and related medical care, and discrimination and irrational stereotypes and fears about sexual orientation, gender identity and HIV persist.

Utah

Utah and Florida are among the states that historically imposed more stringent restrictions of LGBT adoption. Utah prohibits adoption by "a person who is cohabiting in a relationship that is not a legally valid and binding marriage,"[69] making it legal for single people to adopt, regardless of sexual orientation, so long as they are not co-habitating in non-marital relationships.

Florida
Main article: In re: Gill

In Florida, adoption by homosexuals was expressly forbidden by a law passed by the 1977 Legislature, in the wake of the anti-gay Save Our Children campaign led by Anita Bryant. However, in November 2008, the law was struck down by state circuit court Judge Cindy Lederman in the case In re: Gill, involving a gay male couple raising two young foster children placed with them in 2004 by state child welfare workers.

In her ruling granting the adoption, Lederman found that the law violated the Florida Constitution's equal protection guarantees for the children and their adoptive parents; she added that there was no rational basis to prohibit gay parents from adopting, particularly since the scientific evidence of the suitability of gay parents is extensive, and the state allows them to act as foster parents.[70] The state appealed Judge Lederman's decision.

On September 22, 2010, the Third District Court of Appeals of the State of Florida unanimously upheld the decision of the lower court. On October 22 of that year, Attorney General Bill McCollum subsequently announced that the State of Florida would not appeal the court's ruling, thus ending the 33-year-old ban on gay adoptions in Florida.[71]

Arkansas

On November 4, 2008, Arkansas voters approved Act 1, a measure to ban anyone "co-habitating 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 is prohibited in that state, thereby making an adoption impossible.[72] 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.[73] The Arkansas Supreme Court upheld the lower court's decision on April 7, 2011.[74]

Louisiana

In December 2008, in the case of Adar v. Smith, a U.S. District Court in Louisiana "ordered the state registrar to honor the New York adoption of a baby boy by a same-sex couple, saying her continued failure to do so violated" the Full Faith and Credit Clause of the U.S. Constitution, and directed that the state issue a new birth certificate for the child listed both men as parents.[75]

However, the Attorney General of Louisiana appealed the decision, and on April 12, 2011, the Fifth Circuit Court of Appeals overturned the district court ruling, holding that "the full faith and credit clause does not oblige Louisiana to confer particular benefits on unmarried adoptive parents contrary to its law. . . . Louisiana has a right to issue birth certificates in the manner it deems fit."[76]

Oceania

In Australia, same-sex adoption is legal in the Australian Capital Territory,[77] Western Australia[78] and New South Wales,[45] while only stepchild adoption within a registered relationship under the Relationships Act 2003 is possible in Tasmania. The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as 'other people significant to the care, welfare and development' of the child. But the lesbian co-mother and gay co-father(s) will be treated in the same way as a social parent is treated under the law; they will not be treated in the same way as a birth parent.[79] In May 2007, the Victorian Law Reform Commission in Victoria released its final report recommending that the laws be modified to allow same sex couples to adopt children have not been implemented yet, while all other recommendations have been implemented.[80]

See also: LGBT rights in Australia

In New Zealand, preliminary New Zealand Law Commission reports and white papers have raised the issue already, while Metiria Turei, a Green Party of New Zealand List MP raised the issue in late May 2006. In February 2005, the Greens had suggested that an adoption law reform clause should be added to the Relationships (Statutory References) Act 2005, which equalized heterosexual, lesbian and gay spousal status in New Zealand law and regulatory policy, apart from the Adoption Act 1955. While the measure was unsuccessful, it remains to be seen whether a reintroduced adoption law reform bill on its own would fare differently.[81]

South America

In Argentina, Brazil and Uruguay same-sex couples can jointly adopt. A government-sponspored adoption law in Uruguay allowing LGBT adoption was approved by the lower house on 28 August 2009, and by the Senate on 9 September 2009. In October 2009, the law was signed by President and took effect.[43] According to Equipos Mori Poll's, 53% of Uruguayans oppose to same sex adoption against 39% that support it. Interconsult's Poll made in 2008 says that 49% oppose to same sex adoption against 35% that support it.[42][82]

In Paraguay, single persons can adopt, but couples are given preference and the latter must be heterosexual. However, if the adoptive parent will adopt as a single parent, sexual orientation per se constitutes no legal impediment.[83]

Summary of laws by jurisdiction

European laws on adoption by same-sex couples
Country LGBT individual may petition to adopt Same-sex couple may jointly petition Same-sex partner may petition to adopt partner's child Same-sex couples are allowed to foster or stepchild foster
Belgium Yes Yes Yes Yes
Denmark Yes Yes Yes Yes
Estonia Yes No No Yes
Finland Yes No Yes Yes
France Yes No Yes Yes
Germany Yes No Yes Yes
Iceland Yes Yes Yes Yes
Ireland Yes No No Yes
Italy No No No No (but singles can exceptionally foster)
Latvia Yes No No No?
Lithuania No (only in exceptional circumstances) No No No
Netherlands Yes Yes Yes Yes
Norway Yes Yes Yes Yes
Poland Yes No No No
Portugal Yes No No No (but singles can foster)
Slovenia Yes No Yes Yes
Spain Yes Yes Yes Yes
Sweden Yes Yes Yes Yes
United Kingdom Yes Yes Yes Yes
US States' laws on adoption by same-sex couples[84]
State LGBT individual may petition to adopt Same-sex couple may jointly petition Same-sex partner may petition to adopt partner's child
Alabama Yes No explicit prohibition In some jurisdictions
Alaska Yes No explicit prohibition In some jurisdictions
Arizona Yes No explicit prohibition Unclear
Arkansas Yes Yes Yes[74]
California Yes Yes Yes
Colorado Yes Yes Yes
Connecticut Yes Yes Yes
Delaware Yes No explicit prohibition In some jurisdictions
District of Columbia Yes Yes Yes
Florida Yes Yes Yes
Georgia Yes No explicit prohibition Unclear
Hawaii Yes No explicit prohibition In some jurisdictions
Idaho Yes Unclear Unclear
Illinois Yes Yes Yes
Indiana Yes Yes Yes
Iowa Yes Yes Yes
Kansas Yes No explicit prohibition Unclear
Kentucky Yes No explicit prohibition Unclear
Louisiana Yes No explicit prohibition In some jurisdictions
Maine Yes Yes Yes
Maryland Yes No explicit prohibition In some jurisdictions
Massachusetts Yes[85] Yes[85] Yes[85]
Michigan Yes No No explicit prohibition
Minnesota Yes No explicit prohibition In some jurisdictions
Mississippi Yes No[86] Unclear[86]
Missouri Yes No explicit prohibition[87] No explicit prohibition
Montana Yes No explicit prohibition Unclear
Nebraska Unclear No explicit prohibition No
Nevada Yes Yes Yes
New Hampshire Yes Yes Yes
New Jersey Yes Yes Yes
New Mexico Yes No explicit prohibition [88] In some jurisdictions
New York Yes[89] Yes[89] Yes[89]
North Carolina Yes Unclear No
North Dakota Unclear[90] No explicit prohibition[90] Unclear
Ohio Unclear Unclear In some jurisdictions
Oklahoma Yes[91] No explicit prohibition[91] Unclear
Oregon Yes Yes Yes
Pennsylvania Yes Unclear Yes
Rhode Island[92] Yes[92] No explicit prohibition[92] In some jurisdictions[92]
South Carolina Yes Unclear Unclear
South Dakota Yes Unclear Unclear
Tennessee Yes No explicit prohibition Unclear
Texas Yes No explicit prohibition In some jurisdictions
Utah Yes No[93] No [93]
Vermont Yes Yes Yes
Virginia Yes No explicit prohibition Unclear
Washington Yes Yes Yes
West Virginia Yes No explicit prohibition Unclear
Wisconsin Yes No [94] No [94]
Wyoming Yes Unclear Unclear
Latin American and Caribbean laws on adoption by same-sex couples
Same-sex couple joint petition LGBT individual adoption Same-sex stepparent adoption
Argentina Yes Yes Yes
Brazil Yes Yes Yes
Chile No No No
Colombia No Yes No
Paraguay No No No
Surinam No No No
French Guyana No Yes Yes
Guyana No (Homosexuality illegal) No (Homosexuality illegal) No (Homosexuality illegal)
Belize No (Homosexuality illegal) No (Homosexuality illegal) No (Homosexuality illegal)
Peru No No No
Cuba No No No
Puerto Rico No Yes No
Bolivia No No No
Ecuador No (constitutional ban) No (constitutional ban) No (constitutional ban)
Honduras No (constitutional ban) No (constitutional ban) No (constitutional ban)
El Salvador No No No
Guatemala No No No
Venezuela No No No
Dominican Republic No No No
Nicaragua No No No
Costa Rica No Yes No
Mexico Yes (only Mexico City) Yes Yes (only Mexico City)
Uruguay Yes Yes Yes
Australian laws on adoption by same-sex couples
Same-sex couple joint petition LGBT individual adoption Same-sex stepparent adoption
ACT Yes Yes Yes
New South Wales Yes[45] Yes Yes[45]
Northern Territory No Only in exceptional circumstances No
Queensland No Yes No
South Australia No No No
Tasmania No (under review since 2003) Yes Yes
Victoria No (under review since 2007) Yes Yes
Western Australia Yes Yes Yes

Notes:

See also

Further reading

References

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  2. ^ IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA - August 4, 2010 (PDF)
  3. ^ Third District Court of Appeal State of Florida - September 22, 2010 (PDF)
  4. ^ a b c Charlotte Patterson, et. al, "Adolescents with Same-Sex Parents: Findings from the National Longitudinal Study of Adolescent Health, November 7, 2007, pg. 2
  5. ^ Parenting and Child Development in Adoptive Families: Does Parental Sexual Orientation Matter?
  6. ^ William Satetan,Adopting Premises, Slate, Feb. 7, 2002
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  9. ^ Is the "Cinderella Effect" Controversial?
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  80. ^ Victorian Law Reform Commission - Current projects - Assisted Reproduction and Adoption - Final Report
  81. ^ [3]
  82. ^ "Uruguay votes to allow gay adoptions". Melbourne Herald Sun. 2009-08-28. http://www.news.com.au/heraldsun/story/0,21985,25992606-5005961,00.html. Retrieved 2009-08-27. 
  83. ^ Paraguayan Adoption Law Legal Database, Inter-American Children's Institute, Organization of American States. In Spanish. Retrieved on 20 September 2010.
  84. ^ "Adoption". HRC. http://www.hrc.org/issues/parenting/adoptions/adoption_laws.asp. Retrieved 2010-09-13. 
  85. ^ a b c State regulatory code allows delaying or denying an adoption based on sexual orientation. With same-sex marriage now legal, how this would apply to married same-sex couples is uncertain.
  86. ^ a b Mississippi allows unmarried adults and married couples to petition, amended in 2000 to prohibit "couples of the same gender" from adopting.
  87. ^ http://www.hrc.org/issues/1099.htm
  88. ^ http://www.hrc.org/1340.htm
  89. ^ a b c [4]
  90. ^ a b A 2003 law states: "A child-placing agency is not required to perform, assist, counsel, recommend, facilitate, refer or participate in a placement that violates the agency's written religious or moral convictions or policies." This is expected to allow some agencies to deny placement with LGBT couples and individuals. N.D. CENT. CODE §50-12-03.
  91. ^ a b HRC | Oklahoma Adoption Law
  92. ^ a b c d The Rhode Island Family Court routinely grants same sex couple adoptions and has been doing so for over fifteen years. The couples do not necessarily have to reside in Rhode Island and may be having their own birth child, using a surrogate or adopting a child already placed with them. If you adopt in Rhode Island you will receive a decree listing both partners as parents. If you are able to give birth in Rhode Island, you will also receive a birth certificate including both parents. After the adoption, the Rhode Island Department of Health, Division of Vital Statistics will amend a locally born child's birth certificate to name both partners as parents. Greenwood and Fink (Providence, RI) - all legal services for same sex adopting couples and more.
  93. ^ a b http://www.hrc.org/1790.htm
  94. ^ a b http://www.wiadoptioninfocenter.org/snav/159/page.htm

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