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*
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
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.
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
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
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