Depending on the type of adoption same-sex parents are interested in -- public, private, independent, open, or international -- there may be different considerations involved in disclosing sexual orientation. How open prospective adoptive parents are about their homosexuality depends upon the couples' personal feelings on disclosure and whether direct questions are asked.
One important point for all prospective adoptive parents to be aware of is the difference between not sharing private information, and deliberately lying at any time in the adoption process. Although it's completely legal to omit information regarding sexual orientation, it's illegal to lie about it when confronted directly. Failing to tell the truth during the adoption process is considered fraud, and raises the chance that the adoption will be halted, or at least disrupted.
The following is a discussion of how different types of adoption may affect same-sex couples pursuing an adoption.
Public Agency Adoption
For prospective gay and lesbian parents, success in adopting from the public child welfare system no longer depends on the state adoption law in light of the U.S. Supreme Court's Pavan v. Smith decision in 2017. While it's illegal for public agencies in the United States to reject adoptive parents on the basis of sexual orientation, that's not a guarantee that prejudices don't exist. Social workers who are uncomfortable with homosexuality may find the prospective adoptive parents unsuitable for "other reasons."
Each state decides independently who can adopt. Since the final decision is made by judges at the county level, the availability of adoption as an option to openly gay and lesbian couples is influenced by the political and social community in which the family lives. The court's decision hinges on the "best interests" of the child, a concept interpreted differently by different judges, although the prospective parents' sexual orientation may not be considered.
Private Agency Placements
Private agencies establish their own criteria for the prospective adoptive parents. Age, religion, fertility status, marital status and sexual orientation all may be agency considerations. Some private agencies may disregard sexual orientation, and will present the prospective parent as a single adopter who lives with another adult, who will share the responsibilities of raising the child. This omission of sexual orientation is based on the agency's judgment and relevancy to the applicant's parenting qualifications.
Independent and Open Adoption
An independent adoption is an adoption facilitated by those other than caseworkers associated with an agency. The facilitator may be a physician, an attorney, or other intermediary. In an independent adoption the placement decision (within the provisions of the state statute) is completely up to the families involved. However, independent adoption does not necessarily mean an open adoption.
An open adoption involves some amount of initial and/or ongoing contact between birth and adoptive families. The adoptive and birth parents agree upon the birth parents' role, future communication, and the degree of openness prior to adoption. Being honest with the birth parents from the first contact allows gay and lesbian adoptive parents the opportunity to have a relationship without the possibility of a disrupting secret.
Adopting a child from a foreign country may involve finding an agency willing to accept the adoptive parents' sexual orientation, disclosing the information to the contacts in the sending country, and presenting the information to the foreign government. However, conservative or religious countries (and often developing countries) may not be as receptive to gay and lesbian couples.
Adoptive parents need to be aware that foreign governments and courts are making placement decisions based on their cultural standards and what they feel is in the best interest of the child.
Learn About Your Adoption Options: Contact an Attorney Today
Now that you understand how different types of adoption may affect same-sex couples seeking a child, you'll likely have many other questions before you start the process. This is a life-changing event, so having a legal professional is often your best move. Find an experienced adoption law attorney sympathetic to the challenges of LGBT adoptive parents today.