In Whose Best Interests: Sexual Orientation and Adoption Law
| Author | William C. Duncan |
| Position | Volunteer Consultant, Marriage Law Project, Columbus School of Law, The Catholic University of America |
| Pages | 787-803 |
Page 787
Like marriage, in terms of general definitional principles, adoption law in the United States has remained relatively static during the twentieth century, until relatively recently. As part of a larger shift in cultural attitudes and jurisprudential values, common assumptions governing the adoption law of the States have been called into question. It is possible that the most dramatic manifestation of this reality is the current debate surrounding adoption by same-sex couples and the questioning of legal preferences that disfavor homosexual individuals as adoptive parents.1
This article seeks to put the developments surrounding this debate into perspective, and to offer a few observations about the significance of the legal changes now taking place. It will first briefly address the historical assumptions of adoption law in the United States, particularly the role of the "best interest of the child standard" in adoption determinations. Then, the article will survey the law on adoption in the states as it relates to adoption by homosexual persons and same-sex couples. It will conclude by suggesting some of the possible ramifications of the trends outlined in the survey. This piece will use broad strokes to try and describe general principles which might seem almost ethereal to some readers, although general principles are the appropriate starting point for discussing practical change.
A state's adoption scheme reflects the efforts of that state legislature to provide for children who cannot be raised by their own mother and father. In such cases, the state has the somber duty to place the child in an adoptivePage 788 family as an alternative, to in effect create a family where none was before. As such, laws on adoption historically have sought "to shape the adoptive family according to the nuclear family model."2 Thus, states have crafted policies that attempt to promote adoption of children into situations that are as much like the nuclear family as possible and, as a result, "fashion adoption in imitation of procreation."3
Historically, adoption was motivated primarily by a desire to benefit adoptive parents.4 One commentator has noted that "[t]here were two broad purposes that Roman adoption law served: (1) to avoid extinction of the family, and (2) to perpetuate rites of family religious worship."5 Another commentator stated that "the purpose of ancient adoption laws was to provide an heir for the adopting parents."6 While adoption laws in the United States, beginning with Massachusetts' statute in 1851, relied on Roman law concepts, Massachusetts' statute included "one very important innovation: it emphasized the needs of the adopted child."7 This is now the stated policy for adoption in every U.S. jurisdiction.8
These two aspects of adoption policy (the imitation of the natural family situation and the emphasis on a child's best interests) are inextricably linked. Stated another way, adoption is a way to provide a child the family the child lacks, not a way to provide adults the child they lack. Adoption makes sense only in the context of natural family life. If a child is born to a father and mother who are married to one another and who do not fail the child through abandonment or abuse, there would be no need for an adoption. The availability of a child for adoption is a signal that there is a family breakdown that must be fixed through the creation of a new family. Otherwise, orphanages would be a reasonable solution to the problem of children lacking the necessities of life because of parental absence or neglect.
The next two sections will describe legal trends that may impact these traditional adoption policies.
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The general adoption statutes are remarkably similar in every state. Generally, they provide that any adult may adopt, and that a married couple may adopt jointly. For instance, the Alabama statute provides, "[a]ny adult person or husband and wife jointly who are adults may petition the court to adopt a minor."9 Similarly, Michigan law states, "[i]f a person desires to adopt a child . . . , that person, together with his wife or her husband, if married, shall file a petition."10 This approach is almost unanimously followed.11 With only two significant exceptions, no state statute specifically addresses the effect of a parent's declared sexual orientation on his or her ability to adopt.12
The first exception is Florida, where the adoption statute states bluntly, "[n]o person is eligible to adopt under this statute if that person is a homosexual."13 This statute has been the subject of a number of legal challenges.14 In the first challenge, the Florida Supreme Court reviewed a lower court decision upholding the constitutionality of the statute against vagueness, privacy, and equal protection claims under the FloridaPage 790 Constitution.15 The court affirmed the district court's decision except in regard to the equal protection claims, as to which it held that the trial court did not have a sufficiently developed record to support summary judgment in favor of the petitioner, a homosexual.16 The court remanded the case for trial, but the petitioner voluntarily dismissed the suit after remand.17 In the second case, the American Civil Liberties Union (ACLU) challenged the statute again in state court and, again, the court upheld the constitutionality of the statute.18The most recent challenge took place in federal district court, again by the ACLU.19 The district court upheld the constitutionality of the statute by holding that adopting a child and being adopted are privileges rather than fundamental rights; therefore, the plaintiffs could not assert a due process claim.20 Further, applying rational basis review as mandated by Romer v. Evans, the court dismissed all equal protection claims.21 An appeal to this decision is now pending before the Eleventh Circuit Court of Appeals.22
Until 1999, New Hampshire had a similar prohibition. Its law stated, "[s]pecifically as follows, any individual not a minor and not a homosexual may adopt."23 In 1999, the New Hampshire legislature removed the words "and not a homosexual."
The other exception is Connecticut.24 The Connecticut statute provides that child placement agencies may consider a prospective parent's sexual orientation in making placement decisions.25 Specifically, the statute states, "[n]othing in this section shall be deemed to require the Commissioner of Children and Families or a child-placing agency to place a child for adoption or in foster care with prospective adoptive or foster parents who are homosexual or bisexual."26
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Six statutes, while not mentioning homosexuality per se, address the related issue of adoption by same-sex couples.27 In 2000, the Mississippi Legislature amended its adoption statute to read, "[a]doption by couples of the same gender is prohibited."28 Prior to Mississippi's amendment, the Utah Legislature amended its statute which now states:
A child may not be adopted by a person who is cohabitating in a relationship that is not a legally valid and binding marriage under the laws of this state. For purposes of [this section], "cohabiting" means residing with another person and being involved in a sexual relationship with that person.29
The Alabama adoption statute's annotation notes a legislative resolution "that we hereby express our intent to prohibit child adoption by homosexual couples."30
In distinction, Massachusetts's statute provides:
If the child has been previously adopted, all the legal consequences of the former decree shall, upon a subsequent adoption, determine, except so far as any interest in property that may have vested in the adopted child and a decree to that effect shall be entered on the record of the court.31
Vermont's law provides, "[i]f a family unit consists of a parent and the parent's partner, and the adoption is in the best interest of the child, the partner of a parent may adopt a child of the parent. Termination of the parent's parental rights is unnecessary under this subsection."32 Connecticut's law states:
Subject to the approval of the Court of Probate . . . , any parent of a minor child may agree in writing with one other person who shares parental responsibility for the child with such parent that the other person shall adopt or join in the adoption of the child, if the parental rights, if any, otherPage 792 person other than the parties to such a agreement have been terminated.33
Other states have language which, though not likely to be directed towards joint adoption by same-sex couples, would prevent that possibility.34These statutes provide that in the event of an adoption the rights of the adoptee's parents shall be terminated.35 Thus, if a child was conceived as a result of artificial insemination or adopted by a single homosexual, the laws would seem to clearly mandate that before any other person could adopt that child, the natural or adoptive parent's rights would first have to be terminated. However, as the next section will show, some courts have found creative ways of getting around this type of provision.
Obviously, mere statutory provisions do not tell us everything we need to know about adoption practice in the states. Ascertaining what actually occurs in the states may be difficult or impossible because of the nature of the adoption process. A sympathetic social worker or judge may...
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