Can You Adopt?
Any gay or lesbian parent who has woken six times in the night to help a baby get back to sleep knows that good parenting is something that emerges from a place far more basic than one's sexual orientation. It comes from the heart, and the heart cares little about issues of "identity."
Yet conservative religious groups and lawmakers continue to campaign against gay and lesbian parenting, above all, against our ability to adopt. They have tried, and in some cases succeeded, to use state laws and other pressures to restrict our ability to adopt children who need a home. The result: In some states, gay and lesbian people can adopt, and in some states they cannot. Moreover, whether you can adopt within any particular state may depend upon what county you happen to live in, what judge you happen to get and whether you happen to be seeking to adopt as an individual or as a couple.
Despite all the controversy and confusion fueled by varying state laws and county practices, however, the good news is that a growing number of gay and lesbian individuals and couples have adopted in recent years. In fact, the American Academy of Pediatrics, American Psychological Association, Child Welfare League of America, North American Council on Adoptable Children and other important child welfare organizations have supported our desire to do so.
What follows will provide you with a brief overview of states that currently appear to be open to, or intolerant of, adoption by gay and lesbian adults; different practices regarding adoption by gay and lesbian individuals vs. couples; and the bottom line to remember in any adoption.
Open States
States that are considered open to adoption by gay and lesbian people are not necessarily open to it in every county because county judges make the final adoption decision and their opinions may vary. Similarly, some have been open to second-parent adoptions but not adoption of a child from an agency. Yet gay and lesbian people have adopted at least in certain places within the following states and the District of Columbia.
- Alaska
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Illinois
- Maryland
- Massachusetts
- Michigan
- Minnesota
- New Hampshire
- New Jersey
- New Mexico
- New York
- Ohio
- Oregon
- Pennsylvania
- Rhode Island
- Tennessee
- Vermont
- Washington
- Wisconsin
Intolerant States
Florida is the only state that explicitly prohibits adoption by gay and lesbian individuals and same-sex couples. Mississippi prohibits same-sex couples from adoption and second-parent adoption. Utah forbids adoption by any unmarried cohabiting couple, thereby discriminating against all same-sex couples . For more information, search our listings of state laws on adoption.
Adoption by Individuals vs. Couples
Most adoptions by gay people have been by individual gay men or lesbians. Openly gay or lesbian couples frequently have been denied the opportunity to adopt a child together because while most states officially permit single individuals to adopt a child, they require couples to be married. Denied the right to legal marriage, gay and lesbian couples are routinely denied the right to adopt.
But this does not mean that gay and lesbian couples are universally blocked from adopting a child together. Here are three ways in which gay and lesbian couples have done so:
1. One member of the couple petitions to adopt and after the adoption has been processed, the other petitions for a "second-parent" adoption. Under this arrangement, the individuals share the same legal standing as parents, with the only difference being that there is a delay between when the first individual and the second are legally recognized as parents. Remember, however, that second-parent adoption is not available in all states. To find out if it is available in your state, see Second-Parent Adoption.
2. Some gay and lesbian couples have petitioned the courts to permit them to adopt a child; and some courts have ruled that sexual orientation and marital status are irrelevant to good parenting and granted the adoption.
3. Finally, as a result of a class action suit the American Civil Liberties Union filed on behalf of 200 gay and lesbian couples in New Jersey, the state passed a policy in 1997 that allows gay and lesbian couples to adopt jointly. This policy requires the state Division of Youth and Family Services to apply the same standards to all prospective parents, regardless of sexual orientation or marital status.
The Bottom Line
A county judge makes the ultimate decision about whether to grant an adoption based on what he or she determines to be the "best interest" of the child, and judges have different opinions on this score, not only from one state to another but sometimes from one county to another (unless, as in New Jersey, a state policy or law forbids discrimination on the basis of sexual orientation.)
Adoption by gay and lesbian people also continues to be a politically charged issue that is fiercely attacked by conservative groups. As a result, the law is rapidly changing. In some states, bills are being introduced to ban adoption by gay and lesbian people at the same time that other states are repealing old bans.
What to Do if You Are Prohibited
If you are denied the opportunity to adopt because of your sexual orientation, contact one of the following organizations for possible legal action:
American Civil Liberties Union (ACLU)
Lesbian and Gay Rights Project
125 Broad St.
New York, N.Y. 10004
Tel: 212-549-2627
Lambda Legal
120 Wall St.
New York, N.Y. 10005-3904
Tel: 212-809-0055
National Center for Lesbian Rights
870 Market St.
San Francisco, Calif. 94102
Tel: 415-392-6257
New England only:
Gay & Lesbian Advocates & Defenders
294 Washington St.
Boston, Mass. 02108
Tel: 617-426-1350
The ACLU suggests that you describe your situation in writing and include the following information:
- What rights you feel have been violated
- The facts of your situation
- What kind of documentation is available to support the facts
- The individuals or agencies you are complaining about
- What you would like the organization to do
- Your return address and phone number