Adoption, Same-Gender

Types of Adoption

Legal adoption describes the process by which the birth or first parent, or parents, relinquish parental rights to allow for an adoptive parent or parents to assume legally parenting rights of a minor child. Children may be legally adopted through the foster care system via a foster-to-adoption plan. Domestic private adoption can be completed within a private adoption agency or with an independent adoption attorney. In private adoption, the first or birth parent, or parents, works with the lawyer or agency staff to create an adoption plan for their minor child, most often an infant or toddler, to be legally adopted. International adoption of children takes place when minor children in other countries, classified often but not always as developing nations, are declared eligible for adoption and legally adopted by a parent or parents from other countries. Stepparent adoptions take place when a partner legally adopts the biological child of the other partner. This type of adoption is particularly relevant for same-gender couples and is explored in the next section.

Legal Status

According to the LGBTQ community, advances in rights for LGBTQ individuals paved the way for adoption practices to include, albeit with exceptions, same-gender couples. According to the 2010 U.S. Census Bureau, 7% of all children in the United States represented adopted and stepchildren. For many same-gender couples, stepparent adoption became a legal possibility in 2015 when the U.S. Supreme Court ruled same-sex marriage must be legal in all 50 states and territories. The Movement Advancement Project (MAP) reports that, as of 2022, same-gender couples in legally recognized relationships have the right to petition for stepparent adoption in all 50 states, the District of Columbia, and five territories. MAP additionally reported 15 states, the District of Columbia, and one territory allow for same-gender stepparent adoption without the recognized marital status requirement.

In regard to foster and/or private adoption as of 2022, legal adoption of a minor child by an individual member of the LGBTQ community is [Page 30]protected by law or agency policy in more than 25 states, the District of Columbia, and Gaum, according to MAP. Slightly fewer states and three territories provide no protection for adoption practices based on sexual orientation. MAP reports that 11 states do not require state-licensed child welfare agencies to serve LGBTQ individuals and couples if serving them conflicts with the agency’s religious beliefs. In June 2020, the U.S. Justice Department filed a brief with the U.S. Supreme Court to support the restrictions on legal adoptions for same-gender couples based on religious affiliations.

A 2011 study by L. A. Kinkler and A. E. Goldberg of same-gendered adoptive couples examined barriers they faced when building their family through adoption. While this study took place before marriage equality laws were enacted, its findings emphasize the impact of legal and other barriers faced by same-gendered couples as described earlier. The participants in the study indicated they faced legal barriers to adoption, found adoption staff to be unsupportive and/or discriminatory, had limited options to adopt, and experienced challenges postadoption to obtain a supportive community of other LGBTQ adoptive families.

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