Adoption by Gays and Lesbians Term Paper

Pages: 7 (1838 words)  ·  Bibliography Sources: 10  ·  File: .docx  ·  Level: Master's  ·  Topic: Women's Issues - Sexuality

¶ … same sex adoption was largely overlooked by the legislatures and the courts. The lives of lesbians, gays, bisexuals and transsexuals were deemed so far out of the mainstream as to garner little interest. Recent advancements in reproduction technology and increased public relations efforts by groups supporting alternative life styles have caused the public to afford gay issues more sympathetic attention.

Evidencing this attitude were the comments of Representative John Lewis of Georgia who wrote in the October 25, 2003 Boston Globe:

"We hurt our fellow citizens and our community when we deny gay people civil marriage and its protections and responsibilities. Rather than divide and discriminate, let us come together and create one nation. We are all one people. We all live in the American house. We are all the American family.

Let us recognize that the gay people living in our house share the same hopes, troubles and dreams. it's time we treated them as equals, as family.

One of the areas receiving increased attention is the issue of same sex adoptions. There has been a substantial increase in the number of lesbian, gay and bisexual couples electing to pursue parenthood and, in response, the legislature and courts have had to react accordingly.

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Every state in the United States allows unmarried individuals to adopt. In such adoptions, an individual, regardless of whether he or she is heterosexual or homosexual, can adopt a child who has been placed for adoption by his or her biological parents. As in all adoptions the petition of the individual is subject to review and approval by a court.

Because all jurisdictions permit individual adoptions, it has been possible for a great number of adoptions by lesbians, gays, bisexuals and transsexuals. In jurisdictions disfavoring this type of adoption, other barriers have been erected to discourage widespread acceptance.

Term Paper on Adoption by Gays and Lesbians Assignment

Bucking the trend toward allowing same sex adoption, the state of Florida categorically prohibited all lesbian and gay adoptions by enacting legislation. Specifically the Florida statute stated: "No person eligible to adopt under this statute may adopt if that person is a homosexual."

Recently, Florida's Third District Court of Appeals, however, ruled in Fla. Dep't of Children and Families v. X.X.G., 210 Fla. App. Lexis 14014 (Fla. Ct. App. Sept. 22, 2010, that the statutory ban had no rational basis and that it violated the equal protection clause of the Florida Constitution. Speculation among the gay and lesbian community was that the Florida Attorney-General's office would appeal the Court's decision. The Attorney-General's office, after consultation with the Governor's office, declined to do so and the State has acted in accordance with the Court's ruling since. Although the Court's decision is only binding within the geographical confines of the Third District there is every reason to believe that it will be afforded state wide application.

Two other states, Utah and Arkansas, continue to prohibit adoption by individuals who are "cohabiting in a relationship that is not a legally valid and binding marriage."

The wording of these statutes does not reflect a specific prohibition against same sex couple adoption but, in effect, that would be the result. Interestingly, as another example of the increased sensitivity of the courts to the rights of alternative life-style practitioners, at least one state court in Arkansas has ruled that the applicable Arkansas statute was unconstitutional.

The case is presently under review by the Arkansas Supreme Court. The State of Mississippi prohibits "adoption by couples of the same gender."

Strict statutory prohibition is not necessarily the only method used to thwart adoption by lesbians and gays. With the exceptions noted, all states, theoretically, allow lesbians, gays and bisexuals to adopt, however, some courts still use age old prejudices as a justification for denying the application of gay individuals. In Arizona, the Court of Appeals denied a petition brought by a bisexual man arguing that "he testified that it was possible that he at some future time would have some type of homosexual relationship with another man."

Because marriage is not an available option for lesbians and gays individual adoption is the preferred method. Unfortunately, under such arrangement only one partner can enjoy the privilege of possessing a legal relationship with the adopted child. The remaining partner is forced into a secondary position where he or she has no legal relationship with the child. The practical effect of this result is that the non-custodial partner has no legally recognized role in the child's life and, in the unfortunate possibility of a break-up in the same sex relationship, the potential of a complete separation from the child.

In answer to this legal dilemma, a number of states have devised a procedure known as second parent adoption.

This procedure allows a same sex partner to adopt his or her partner's biological or adoptive child without requiring that the legal parent's rights be terminated. This procedure was originally devised to allow step-parent adoption but many jurisdictions have adapted the procedure so that it can be used in lesbian and gay adoptions. It differs from joint adoption in that the application is made separately. As joint adoption by same sex partners is still prohibited in several jurisdictions, second parent adoption fills a void and allows same sex partners the opportunity to create a legally recognized family unit. The procedure gives the adopted child the legal security of having two parents, the benefit of crucial financial support such as Social Security, child support, inheritance rights and other such considerations.

Second parent adoption has eased the pressure on same sex couples anticipating the possible adoption of a child but there are a number of jurisdictions that have gone beyond second parent adoption. These states and the District of Columbia, either through the recognition of marriage of same sex couples or providing comprehensive domestic partnerships or civil unions, make the lesbian and gay adoption process much less expensive and more expedient.

There remain, however, several states that have, through court decisions, expressly denied second parent adoptions.

In those states where neither second parent nor joint adoption is possible same sex couples still have available options. In order to provide their adoptive children with financial protections that come through adoption and the non-custodial parent with some recognition of their relationship with the child there are some legal devices available. These devices, such as wills, guardianship agreements, and medical authorization forms are not universally accepted as binding upon the courts but they can be useful as tool of persuasion. The wording of these devices is essential and competent and experienced legal draftsmanship should be a priority with all individuals considering this option.

Significant advances have been made by the lesbian, gay, bisexual and transsexual communities in the past fifty years. Attitudes toward their life-styles have become more open-minded and, as a result, such individuals have been able to enjoy the benefits of life that come accompany more traditional relationships. The right to enjoy the benefits of parenthood is just one of these advances. Although same sex couples have come a long way in regard to this area of their lives there is far more that needs to be done before there is universal acceptance.

What the legislatures and courts are beginning to understand is that same sex marriage is a protection for the couples choosing to utilize it. Concurrently, it is also protection for the children who are either born into it or joined through adoption. In order to fully apply the "best interest of the child" standard that is now universally applied by all jurisdictions, the issue of same sex marriages is now being widely considered throughout the United States. It is only through legally recognized marriages that children will be fully guaranteed protections in the case of death, divorce, poverty and a range of other situations.

The situation facing prospective adoptive parents who happen to live in a non-traditional relationship is a complex one. There is no consistent pattern regarding who can adopt, how that adoption can be effectuated, or how that adoption will be treated in other jurisdictions. Attitudes toward same sex relationships remain mixed and although changes are being made they are occurring slowly with little consistency being offered in the way that the courts and the legislature are choosing to interpret how these matters should be handled. Gay and lesbian support and advocacy groups are working tirelessly to educate legislative members so that acceptance can become universal but the process is slow.

The best approach for same sex couples anticipating possible adoption is to investigate the laws and procedures in their particular jurisdiction. Consulting an attorney experienced in same sex adoption within the jurisdiction is an absolute necessity. There are simply too many nuances in the inherent nature of these proceedings to take a chance that something will be missed or overlooked to consider partaking in such action without the services of an expert.

The likelihood is that all jurisdictions within the United States will eventually afford gay and lesbian couples the full measure of parenting rights that… [END OF PREVIEW] . . . READ MORE

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