According to Planetout.com, Elton John and his spouse were recently denied their request to adopt a child in the Ukraine (Planet Out, 2009). Although, the Ukraine many not have been gay friendly for Elton John, in a few countries and some states in the United States, gays and lesbians have no problem adopting children. This article will cover the adoption laws in various states and how they affect gays and lesbians wanting to adopt.
The National Center for Lesbian Rights has identified fifteen states that allow same sex couples to adopt. They are California, Colorado, Connecticut, District of Columbia, Illinois, Indiana, Iowa, Maine, Massachusetts, New Hampshire, New York, New Jersey, Oregon, Pennsylvania and Vermont. These states have either state statues or appellate court decisions that explicitly permit same-sex couple adoptions. In fourteen other states, there are some counties in the state that have granted second parent adoptions. A second parent adoption is where a second parent becomes a legal parent without the first parent relinquishing her parental rights, and the parents are not married to each other. However, there is no case law or statutes specifically on the issue in those states (National Center for Lesbian Rights, 2009).
California is a very gay and lesbian parent friendly state. California has four recent Supreme Court decisions on the issue of gay parenting. The issue was first addressed by the court in 2003 in the case of Sharon S. v. Superior Court. In this case, Sharon and Annette had two children, Zachary and Joshua. Sharon had given birth to both children during their relationship. Annette had adopted Zachary in a limited consent second parent adoption (where Sharon’s parental rights were not terminated) and was in the process of adopting Joshua when the couple ended their relationship. Sharon asked to withdraw her consent to the adoption of Joshua and also argued that there was no legal basis for Annette to be a legal parent of the children. The California Supreme Court held that there was no prohibition in California law for two same-sex parents (or any unmarried couple) to adopt a child. Furthermore, the court held that a parent can consent to a second parent becoming a legal parent without the first parent being required to relinquish her parental rights (Sharon S. v. Superior Court, 2003). This was a landmark decision in California. Prior to this decision, individual judges in some California counties had granted adoptions to same-sex couples but there was no case law or statute on the issue.
The California statues on adoption provide that any adult may adopt a child if it is in the child’s best interest and the parent is more than ten years older than the child. There was nothing in the California statutes that required the parents to be married or heterosexual. Furthermore, between the time of the appellate court decision and the Supreme Court decisions in the Sharon S. case, California had enacted Assembly Bill 25, which provided that a registered domestic partner could adopt her partner’s child through a step parent adoption.
In 2005, the California Supreme Court had the opportunity to rule on three lesbian assisted reproduction parentage cases. In these cases, the court held that if a lesbian (or gay male) couple had children, while living together that they would both be the parents of any resulting child(Elisa B. v. Superior Court, 2005; K.M. v. E.G., 2005; Kristine H. v. Lisa R., 2005). By 2005, the California legislature had also passed and enacted a law granting registered domestic partners the same rights and responsibilities as married couples. This also provided for a presumption that children of registered domestic partners are the children of both registered domestic partners.
California permits out of state individuals or couples to adopt children born in California (Family Code Sections 8802 and 8807, 2010). However, out of state residents need to comply with the interstate compact on the placement of children (ICPC). An ICPC requires the approval of both the sending and receiving state. If the prospective adoptive parents live in a state that will not permit adoption by a gay or lesbian parent, the ICPC may not be approved. This may make an adoption by a person in a homophobic state difficult, if not impossible.
Children who live in a state such as California, that recognize both parents in a same-sex relationship as parents(or any other state that recognizes same-sex marriage or domestic partner equivalent relationships), still need a court order of parentage. This is because a state does not need to recognize birth certificates and parentage presumptions from other states. But every state must recognize court orders of parentage (either by adoption or parentage judgment) as the full faith and credit clause of the Unite States Constitution, requires such recognition (The United States Constitution, 2008).
There are unfortunately still a few states where gay and lesbian parents cannot adopt. Arkansas and Utah prohibit adoption by a prospective parent who is cohabitating in a non-marital sexual relationship. Florida specifically prohibits a homosexual from adopting. Mississippi prohibits adoption by same-sex couples. Nebraska, Ohio and Wisconsin do not permit second parent or co-parent adoptions and Kentucky does not permit unmarried couples to use the stepparent adoption procedure (National Center for Lesbian Rights, 2009).
For a United States resident to adopt in a foreign country, they must comply with the laws of that country. Many foreign countries prohibit same-sex couples from adopting. Those gay and lesbian individuals who do adopt from these countries do so as single parents without identifying their sexual orientation. There are ten countries that allow same-sex couples to adopt. They are Germany, Belgium, Denmark, Spain, Iceland, Norway, the Netherlands, the U.K., and Sweden (Crumley, 2008). The Uruguay legislature passed a bill permitting same-sex couples to adopt in September, 2009 (Olivera, 2009; Narancio, 2009).
Crumley, B. (2008, January 24). France Overruled on Gay Adoption. Retrieved January 4, 2010, from Time, Inc.: http://www.time.com/time/world/article/0,8599,1706514,00.html
Elisa B. v. Superior Court, 37 Cal. 4th 108 (California Supreme Court August 22, 2005).
Family Code Sections 8802 and 8807. (2010). California Family Code . California.
K.M. v. E.G., 37 Cal.4th 130 (California Supreme Court August 22, 2005).
Kristine H. v. Lisa R., 37 Cal.4th 156 (California Supreme Court August 22, 2005).
Narancio, F. (2009, September 9). Uruguay will allow gay adoption, a first for Latin America. Retrieved January 4, 2010, from McClatchy: http://www.mcclatchydc.com/117/story/75119.html
National Center for Lesbian Rights. (2009, September). Adoption by LGBT Parents. Retrieved January 5, 2010, from National Center for Lesbian Rights: http://www.nclrights.org/site/DocServer/2009_09_02_2PA_state_list.pdf/1807110695?docID=3201&verID=3
Olivera, Y. (2009, September 9). Uruguay approves Latin America’s first gay adoption law. Retrieved January 5, 2010, from AFP: http://www.google.com/hostednews/afp/article/ALeqM5gu1QYorSnG_WrGpbQ-ic2fMpxObg
Planet Out. (2009, December 15). LGBT: Adoption Issues: Elton John’s Heart Remains With Ukrainian HIV+ Orphan. Retrieved January 5, 2010, from Planet Out: http://www.planetout.com/hot_topics/2009/12/elton-johns-heart-remains-with-ukrainian-hiv-orphan-.html
Sharon S. v. Superior Court, 31 Cal 4th 417 (California Supreme Court August 4, 2003).
The United States Constitution. (2008, October 24). Retrieved January 13, 2009, from U.S. Constitution On Line: http://www.usconstitution.net/const.html
Diane M. Goodman is a partner in the law and mediation firm of Goodman & Metz in Encino. She is the Past President of the Academy of California Adoption Lawyers/Academy of California Family Formation Lawyers. She received her J.D. from the University of La Verne School of Law in 1984. Ms. Goodman is a family law attorney and mediator. Ms. Goodman has handled many assisted reproduction and adoption matters in the Los Angeles and surrounding areas. She is the author of the parentage chapter of Practice Under the California Family Code published by CEB. Ms. Goodman regularly mediates dissolutions of marriage, dissolution of domestic partner relationships as well as pre-nuptial agreements. Ms. Goodman served as a commissioner on the Los Angeles City Commission on the Status of Women from 1980 - 1990.