Barriers, Hurdles, and Discrimination: The Current Status of LGBT Intercountry Adoption and Why Changes Must Be Made to Effectuate the Best Interests of the Child

• Author: Jennifer B. Mertus
• Position: Associate Professor of Legal Writing, Whittier Law School; J.D. 2004, summa cum laude Whittier Law School; B.S. and B.A. 1995, University of North Carolina-Wilmington
• Pages: 271-311

BARRIERS, HURDLES, AND DISCRIMINATION: THE

CURRENT STATUS OF LGBT INTERCOUNTRY

ADOPTION AND WHY CHANGES MUST BE MADE TO

EFFECTUATE THE BEST INTERESTS OF THE CHILD

JENNIFER B. MERTUS*

I. INTRODUCTION

The child, for the full and harmonious development of his

or her personality, should grow up in a family

environment, in an atmosphere of happiness, love and

understanding . . . . Intercountry adoption may offer the

advantage of a permanent family to a child for whom a

suitable family cannot be found in his or her State of

origin.1

The subject of adoption by members of the Lesbian, Gay, Bisexual,

and Transgender (LGBT)2 community has been tackled by television

Copyright © 2011, Jennifer B. Mertus.

* Associate Professor of Legal Writing, Whittier Law School; J. D. 2004, summa cum

laude Whittier Law School; B.S. and B.A. 1995, University of North Carolina –Wilmington.

The author thanks Lani Baron, whose late nights, keen research skills, and careful eye

helped immensely in this project. This paper is dedicated to the thousands of children

worldwide who are waiting for loving, permanent homes and to those who d esire to provide

families for those children through the process of intercountry adoption.

1 The Hague Convention on the Protection of Children and Co-Operation in Respect of

Inter-Country Adoption, Preamble, May 29, 1993, 32 I.L.M. 1139, available at http://www.

hcch.net/index_en.php?act=text.display&tid =45.

2 Although the acronym LGBT will be used throughout this article, much of the data

available is only for the gay and lesbian portion of the LGBT community. In addition, the

term ―homosexual‖ may be used to refer to the LGBT community. I recognize the inherent

problem with this, as many bisexual and transgendered individuals do not consider

themselves homosexual, and for some the term has a negative connotation as a result.

However, nearl y all of the literature, existing statutes, and court opinions refer to

homosexual individuals or same-sex couples leaving the status of bisexual and transgender

individuals unclear. While it is possible that bisexual and transgender individuals would

receive different treatment under the laws, it is unlikely given the rationale provided by

countries and states for prohibiting gays and lesbians from adopting. As a result, although I

recognize and respect the differences between individuals in the various sub-groups, I refer

to the LGBT community as a whole throughout this article.

272 CAPITAL UNIVERSITY LAW REVIEW [39:271

shows and movies in recent years.3 Most recently in the series pilot for the

sitcom Modern Family, a gay couple adopted a baby girl from Vietnam.4

While the series focuses on the joys, trials and tribulations, and

stereotypical situations of raising a child, it leaves out the details of the

arduous process and the barriers that members of the LGBT community

must overcome to form families through intercountry adoption.5

Frequently the barriers are substantial and, in some cases, insurmountable.

What began as an international humanitarian effort to ―save‖ children

from war-torn third world countries has evolved into a viable, accepted

method of family formation for many individuals and couples.6 However,

many more orphans could receive the benefit of growing up in a family

environment if categorical bans on LGBT adoptive parents were

eradicated.7 If these barriers to adoption are permitted to continue,

thousands of children will miss out on the familial experience and instead

be relegated to life in institutions or foster care.8

Adoption is a far superior option over institutionalization or foster

care,9 and as such, categorical bans on potential adoptive parents based on

3 See, e.g., infra note 4 and accompanying text.

4 Modern Family: Pilot (ABC television broad cast Sept. 23, 2009). However, as of July

28, 2010, adoptions between the United States and Vietnam have ceased pending the

promulgation and implementation of new legislation and regulations by th e Vietnamese

government. Until such time that either Vietnam accedes to the Hague Adoption

Convention or there is a new bi-lateral agreement between the United States and Vietnam

regarding intercountry adopti ons, adoptions between the two countries are not possible.

U.S. Dep‘t of State Office of Children‘s Issues, Vietnam Adoption Notice, INTERCOUNTRY

ADOPTION (July 28, 2010), http://www.adoption.state.gov/news/vietnam.html.

5 See Modern Family, supra note 4. The terms ―international adoption‖ and

―intercountry adoption‖ will be u sed interchangeably throughout this paper. Both terms

refer to the adoption of children whose country of birth and citizenship differ from the

adoptive parent(s)‘ country of residence or citizenship, or both. Black‘s Law Dictionary

defines international adoption as follows: ―An adoption in which parents domiciled in one

nation travel to a foreign country to adopt a child there, usu[ally] in accordance with the

laws of the child‘s nation.‖ BLACK‘S LAW DICTIONARY 53 (8th ed. 2004).

6 See infra Part II.

7 See infra Part VI.

8 See sources cited infra notes 272–74.

9 See, e.g., Convention on the Rights of the Child, opened for signatur e Nov. 20, 1989,

G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (ratified Sept.

2, 1990), available a t http://www.un.org/documents/ga/res/44/a 44r025.htm (―[T]he child,

for the full and harmonious development of his or her personality, should grow up in a

family environment . . . .‖); see also W.N. v. Dep‘t of Children & Family Servs., 919 So. 2d

(continued)

2011] BARRIERS, HURDLES, AND DISCRIMINATION 273

sexual orientation—a trait that has no bearing on ability to parent or

provide a loving, stable home—cannot possibly be in the ―best interests of

the child.‖10 This article focuses on the current ability of members of the

LGBT community in the United States to form families through the

process of intercountry adoption. Part II provides a brief history of

intercountry adoption, followed by an overview of the intercountry

adoption process in Part III. Part IV of the article identifies four groups of

potential adoptive parents within the LGBT community as a framework by

which to assess the current system of laws and regulations that determine

adoptive parent eligibility. Part V identifies the obstacles faced by each

group, on both an international and state level, by systematically reviewing

the laws of the various jurisdictions involved in intercountry adoption by

U.S. citizens. After analyzing why barriers to adoption by LGBT

individuals and couples do not serve the best interests of the child, Part VI

outlines several possible long-term solutions for eliminating these barriers

altogether.

II. HISTORY OF INTERCOUNTRY ADOPTION

The roots of intercountry adoption are firmly planted in altruism.

Foreign wars, political and social unrest, and extreme poverty were the

ingredients that led to the role of the United States in intercountry

adoption. Intercountry adoption first came into being after World War II

589, 592 (Fla. Dist. Ct. App. 2006) (quoting Williams v. Dep‘t of Health and Rehab. Servs.,

648 So. 2d 841, 843 (Fla. Ct. App. 1995)) (―Without a doubt, ‗it is far better for th[is] child

[] to be placed for adoption with a loving and stable family that [sic] it is to have [him]

remain in foster care any longer . . . .‖); In r e Victor A., 852 A.2d 976, 985 –86 (Md. Ct.

Spec. App. 2004) (―For children in foster care, both the local social services department and

the court must consider whether the individual child‘s health and safety is being

compromised by the long term effects of foster car e. Federal and state governments have

recognized that long periods of foster care may harm the very children whom the foster care

system is designed to protect. . . . The overriding theme of both the federal and state

legislation is that a child should have permanency in his or her life. The valid premise is

that it is in a child‘s best interest to be placed in a permanent home and to spend as little

time as p ossible in foster care.‖ (citing In r e Adoption/Guardianship No. 1 0941, 642 A.2d

201, 205 (Md. 1994)).

10 See infra Part VI. The best interests of the child standard is the para mount concern in

cases of child custody and placement, including adoption proceedings. See, e.g.,

Determining the Best Inter ests of the Child: Summary of State Laws, CHILD WELFARE

INFORMATION GATEWAY STATE STATUTES (Dep‘t of Health & Human Servs., Washington,

D.C.), Mar. 2010, at 2, a vailable at http://www.childwelfare.gov/systemwide/laws

_policies/statutes/best_interest.pdf.