How Different Types of Adoption May Affect Same-Sex Couples

Same-sex couples have equal protection under the 14th Amendment. This is the law of the land. In 2015, the U.S. Supreme Court ruled that same-sex couples had the right to marry. Although this decision did not extend to adoption, the principles remain the same. Government agencies cannot have different rules for same-sex couples and heterosexual couples.

A married couple's sexual orientation should not affect their prospects for any type of adoption. In 2022, Congress passed the Respect for Marriage Act, clarifying the federal definition of marriage. Before this Act, legal marriage was between a man and a woman. Now marriage refers to any two people whose marriage is valid under state law. This includes same-sex marriage.

Yet, some adoption types can complicate the process for lesbian and gay couples. This article discusses how different types of adoption may affect same-sex couples.

How Same-Sex Adoptions May Differ by Type

Most same-sex couples should expect the same treatment as heterosexual couples in public adoptions. Public agencies cannot discriminate against gay couples. The adoption process is the same for gay couples as for straight couples. Things like a home study and visits from social workers should not change because the couple is not heterosexual.

Once an adoption is complete, the gay and lesbian adoptive parents are the adopted child's parents on the birth certificate. They are the child's legal parents, with the same parental rights and responsibilities as any other parent.

Some states allow state-licensed adoption agencies to refuse to work with same-sex couples if it conflicts with their religious beliefs. This is not true in states like New York and Massachusetts.

Unmarried gay and lesbian couples may encounter issues if they want to adopt. The law protects gay couples from discrimination by public agencies. But private agencies may choose not to work with same-sex couples because of their sexual orientation. Some agencies make this decision based on marital status.

These considerations may not apply to unmarried couples of any sexual orientation. States like Utah do not allow unmarried couples to adopt. Only married couples and single people can adopt in Utah. There are exceptions for cases where the adoptive parent is a relative of the child or the adoption falls under the Child Welfare Act.

Types of Adoptions for Same-Sex Couples

Gay and lesbian couples have many adoption choices to expand their families.

Second-Parent Adoption for Unmarried Partners

In unmarried gay couples where one partner is the child's biological parent, both partners may co-parent. In these cases, the couple can opt for second-parent adoption. In second-parent adoptions, the non-biological parent files a petition for adoption.

The rest of the adoption process remains the same. A social worker conducts a home study and prepares a report for the court. Once the adoption is complete, the non-biological partner is the child's legal parent. The non-biological parent has the same legal rights as the biological parent.

Stepparent Adoption for Married Same-Sex Couples

In some relationships, one of the parties was a single parent before they married. Married gay couples in this situation can seek a stepparent adoption. In stepparent adoptions, the stepparent files a petition for adoption. In some states, if the child is at least 10, the child must consent. Depending on the state where the couple lives, a home study may not be optional.

After the court issues the adoption decree, the parents can apply for a new birth certificate. The new birth certificate will include the stepparent's name.

Gay and lesbian adoptive parents have the same legal rights as heterosexual adoptive parents. This means gay parents have to provide for their child. They ensure their child's physical and emotional well-being as well as nurture the child's self-esteem.

Foster Care and Public Agency Adoption

Gay couples can be foster parents in most states and Washington, D.C. Other states may allow waivers for individual state-contracted agencies to reject LGBTQ foster care applicants.

Many children in the foster care system are available for public agency adoption. In an ideal world, the foster care system would be short-term. Children would receive care until they could return to their parents. This is not the case for many children; some become available for adoption.

Mississippi was the last state with adoption laws that discriminated based on sexual orientation. In 2000, the Mississippi Legislature passed a law banning same-sex couples from adopting. By the decision in Obergefell v. Hodges, the U.S. Supreme Court effectively overturned this law in 2015. However, Mississippi's state law banning adoption by gay persons remained on the books until overturned via a federal court lawsuit in 2016 filed on behalf of gay married couples seeking to adopt. The public child welfare system no longer depends on state adoption laws. 

Despite this, some states tried other ways to prevent gay couples from adopting. Until 2017, Arkansas refused to put both parents' names on the birth certificate for same-sex couples. Since Arkansas treated same-sex parents differently than heterosexual parents, this law was unconstitutional.

Private Agency Placements

Private agencies establish their own criteria for prospective adoptive parents. Some of these criteria include the following:

• Age
• Religion
• Fertility status
• Marital status
• Sexual orientation

Other private agencies are LGBTQ-friendly. Private adoptions can be preferable for some LGBTQ families for this reason. According to the Human Rights Campaign, "many LGBTQ adults choose to adopt through private agencies, especially those agencies with demonstrated sensitivity to LGBTQ applicants."

Independent and Open Adoption

Parties other than agency social workers can facilitate independent adoption. The facilitator may be a physician, an attorney, or other intermediary. In an independent adoption, the placement decision is entirely up to the families involved. Often, the birth mother will choose her child's parents. This means unmarried couples, gay men, gay women, transgender individuals, or single adults can adopt a child.

Open adoption involves contact between the birth family and adoptive families. The adoptive and birth parents agree upon the birth parents' role in the child's life.

International Adoption for Same-Sex Couples

Adopting a child from a foreign country is another option. This involves finding an international adoption agency open to the parents' sexual orientation. LGBTQ rights are not consistent in other countries. The adoption agency may disclose the LGBT parents' status to their government.

In foreign adoptions, the best interest of the child is not the only consideration. Cultural standards can also influence placement decisions.

LGBTQ Adoption Discrimination Laws Vary

Only 28 states and the District of Columbia have laws prohibiting discrimination as it concerns the LGBTQ community and foster care or adoption. This includes states like Illinois, New York, and Massachusetts. States like Florida have no laws that specifically bar discrimination in adoption for gay and lesbian couples.

There are four categories of state laws regarding same-sex adoption:

• States that clearly ban discrimination based on "sexual orientation and gender identity"
• States that clearly ban discrimination based on sexual orientation
• States with no laws clearly banning discrimination based on either sexual orientation or gender identity
• States that allow state-licensed adoption agencies to discriminate against "LGBTQ people and same-sex couples" based on a conflict with their religious beliefs

Get Help With Your Adoption Type

Different types of adoption may affect same-sex couples seeking a child. Gay couples should speak to a local family law attorney to understand their rights.