Whether or not a person who is gay, lesbian or transgender is allowed to adopt depends on the laws of the state where she or he lives, policies of the agency or attorney and other factors. Such adoptions are at the center of much controversy.
New Hampshire rescinded its ban on homosexual adoption in 1999. Florida law continues to ban adoption by homosexuals as of this writing, as not in "the best interests of the child," while other states do not mention sexual preference criteria for eligibility to adopt. Consequently, a homosexual person may theoretically adopt. In 1991, Florida law was challenged by a South Florida man, and a circuit court declared the law to be discriminatory. This case did not overturn state law, although it could be cited in other cases.
When the partner of a homosexual or bisexual person wishes to adopt a biological child of one of them or they both wish together to adopt an unrelated child, they will often encounter difficulties. For example, some states require a biological mother to relinquish her parental rights before another woman can adopt her child; however, a lesbian mother would not wish to sign consent but would prefer to share parenting with her partner.
In a few cases cited by attorney Emily C. Patt, the biological parent retained parental rights while at the same time an unrelated person was allowed to adopt the child. As a result, a child can have a biological parent and a "psychological parent" as well.
In a 1985 Alaska case, Adoption of a Minor Child, a minor child's GUARDIAN AD LITEM recommended that a lesbian couple be allowed to adopt a child they had both parented since birth. The adoption was allowed because the court determined the mother's lesbian relationship was not a factor in whether she would be a good parent. Same-sex couples have also been allowed to adopt in California and Oregon.
Increasingly, both gay and lesbian parents are permitted to become adoptive parents, although in the vast majority of cases, it is one of the partners who adopts rather than both.
Joan H. Hollinger, editor-in-chief, Adoption Law and Practice (New York: Matthew Bender, 1989).
Emily C. Patt, "Second Parent Adoption: When Crossing the Marital Barrier Is in a Child's Best Interests," Berkeley Women's Law Journal 3 (1987-88): 96-132.
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©2000 by Christine Adamec and William Pierce, Ph.D. Reprinted from The Encyclopedia of Adoption, 2nd Edition (2nd Edition) with permission of Facts On File, Inc.