Adoption by Gay and Lesbian Couples: Politics & Parenting

"In many states only one partner of a same-sex couple can be a legal parent."

Posted Dec 13, 2011

When you adopt a child, you have to learn the rules, study the laws, take note of the current events that could impact your adoption

I wanted to find out what issues were at the forefront for gay and lesbian couples and singles adopting. I was fortunate to speak with three individuals who each provided a wealth of insight that pertain to individuals now. Thank you again to William Singer, who commented about the law; Adam Pertman who provided insight about policy and politics, and Eric McIntyre spoke of parenting and the family. 



WILLIAM S. SINGER is a member of the American Academy of Adoption Attorneys. The American Academy of Adoption Attorneys is a national association of approximately 340 attorneys who practice, or have otherwise distinguished themselves, in the field of adoption law. The Academy's work includes promoting the reform of adoption laws and disseminating information on ethical adoption practices.

There was much I wanted to know: Is there a current story in the news that reflects the issues and inequities same-sex couples face when adopting? And what do lawmakers most misunderstand about same-sex families when it comes to adoption? How does custody work with same-sex couples, if the couple is not married, adopts, and breaks up? Is it the same in states where marriage is recognized? Conversely, I was wondering about the issue when a gay or lesbian child (perhaps an older child?--or not) is adopted by a couple whose partners are neither...are there ever issues that we might want to address for an adoptee whose perspective might not be covered as broadly. Legal issues?

Finally, do the upcoming elections have a bearing on lawmaking as they relate to adoption? Do you foresee changes? If so, what do you see? Are there trends in the law? Is there a law or ruling that worries you? And, what does the public most misunderstand about the process of same-sex adoption? What do same-sex couples most misunderstand about it?

Here is what William Singer wrote to me via email: 

"You seem to be operating from the premise that adoption law is the same for same-sex couples no matter where they live.  Unfortunately, that assumption is incorrect.

"Each state has its own adoption cases and statutes.  No two states are the same.  Presently, approximately 24 states and D.C. allow same-sex couples to both be equal parents of the same child.  In some states, depending on whether a couple has a legally recognized relationship or jointly decided to conceive a child, both mothers can appear on the birth certificate from the moment of birth.

"Gay male couples do not have that option.  Except in an assisted reproduction matter in a few states, one would have to adopt.

"Thus, in many states only one partner of a same-sex couple can be a legal parent.  Those situations can lead to all sorts of bad outcomes -- someone who has held herself out to be a parent not being recognized as such by a hospital or school to the extreme examples (of which there are many) where the bio or legal mother has cut off all contact with the non-bio/nonlegal mother after a tumultuous break-up.  These "bad bio mom" cases, of which there have been too many, have had a variety of outcomes.

"In some of those states which do allow both same-sex parents to be come legal parents, the parents can do a joint adoption.

"In the foreign countries from which most American seek children to adopt, I am not aware of any which allows a same-sex couple to adopt a child from that country.  In those situations, one parent does the adoption abroad and the second parent adopts the child upon return to the U.S. (if their state allows it).

"In addition, many states do not have laws against discrimination covering LGBT people, so an adoption agency could discriminate against a same-sex couple without consequences in those states.

"Generally, lawmakers are no more ignorant than the general public about these issues.  That said, some legislators are driven by open hostility to LGBT people.  Check out Rep. Sally Kern in OK who has said that gay people are more of a threat to this country than terrorists.

"If a same-sex couple lives in a state where they can both become legal parents, at the time of the divorce no extra weight should be given to the person who is the biological parent or the parent who adopted first.

"We attorneys who practice LGBT law are trying to stem the epidemic of "bad bio mom" cases. We have produced a document called "Protecting Families."

"These "bad bio mom" cases have given an opportunity for groups hostile to LGBT rights to exploit the situation and win court rulings that have been harmful to the entire LGBT community.  If you want more information about this issue, I can tell you about the decision last December by the NC Supreme Court voiding EVERY same-sex adoption in its state because of one lawsuit.  On the other hand, NE Supreme Court just issued a decision that is beneficial to our community."



Adam Pertman, Executive Director, Evan B. Donaldson Adoption Institute a national nonprofit that is the pre-eminent research, policy and education organization in its field. Pertman - a former Pulitzer-nominated journalist - is also Associate Editor of Adoption Quarterly, and the author of Adoption Nation: How the Adoption Revolution is Transforming Our Families - and America and Gay and Lesbian Adoption: A New Dimension in Family Diversity, both published in 2011. 

MEREDITH: Do the upcoming elections have a bearing on lawmaking as they relate to adoption? Do you foresee changes? If so, what do you see? Are there trends in the law? Is there a law or ruling that worries you? 

ADAM PERTMAN: With some exceptions, adoption law is state-based, so there are 50 elections coming up that might affect it - but are unlikely to for many reasons. Two of the big ones are: most adoptions are of children from foster care, and reforms in this realm (which are direly needed) require resources/investment, and we live at a time of financial retrenchment. Second, at least at the state level, much adoption-related policy is more or less bipartisan, which is to say neither party understands the realities very well and both generally move in the same directions. 

One stark exception is LGBT adoption; in this area of life, there are obviously sharp partisan divides and they extend beyond adoption to parenting itself and marriage. So, for instance, a party change in the House (which I think is unlikely to happen) could bring enactment of legislation - the Every Child Deserves a Family Act, which was initially based on the Adoption Institute's work - that would bolster gay/lesbian adoption. And, presumably, if enough progressive candidates win at the state level, that improves the prospects for gay-friendly laws and policies being enacted.  

MEREDITH: What does the public most misunderstand about the process of same-sex adoption? 

ADAM PERTMAN: Two major things: First, there's a mythology out there, propagated by some on the right but also by generations of institutionalized homophobia, that gay parents are somehow inferior or that the children they raise are somehow at risk; the research (and experience) belies those notions, and many Americans simply don't know that. Second, people simply don't understand the process. They have some unformed vision of adoption entailing prospective parents - gay and straight - engaging in a form of child shopping, as though they go into a building, see the selection, and say, "I'll take that one." They simply haven't been educated to know that adoptive parents, particularly from foster care (from which most lgbt adoptions and most adoptions in general take place) are vetted and trained. They may not parent a child until they've been deemed as qualified. Bad parents obviously slip through the cracks, but the process should allay most people's concerns.

MEREDITH: What do same-sex couples most misunderstand about it? 

ADAM PERTMAN: A lot, because gay/lesbian people aren't any more educated about adoption than is the population at large; plug alert: One reason "Adoption Nation" was named one of the 10 books every lgbt parent should read is because it provides an honest (and optimistic) lay of the land. If I were to pick one thing, I'd say that many think they simply cannot adopt or that the process is so onerous that they might not get through it, either because of their sexual orientation or because it's so bureaucratic or both. Our research simply shows they're misinformed; most agencies will work with them and professionals, especially in the foster world, are increasingly turning to them. The Institute's latest report on this subject, can be found by clicking HERE. Anything that's not in this one will be in our previous report on the subject (we've done three in all). 



Eric McIntyre, 41, and his partner Scott Fagan, 42, adopted their son, Jacob, last year. They live in Manhattan and own and operate a catering business, Tip of the Tongue.  Scott was born in NY on the Upper West Side.  Eric was born in Sacramento, CA.  They have been together for 14 years, are now married in NY state and have lived there for 13 years.

MEREDITH: Please tell me about the circumstances of your adoption. How old was your child (or children)? How about you and your partner? Where do you live? Are the laws same-sex couple-adopter friendly? 

ERIC: Our son was a newborn when we took custody of him. [Theirs was a domestic adoption.] We pursued an open adoption plan which allows adoptive parents to develop a relationship with the birthmother prior to the birth of the child.  Our birthmother picked us out of a group of, I think, 5 couples (that's the number I remember her telling me). She picked us in late January 2011, and our son was born on April 10, 2011. We live in Brooklyn, NY, 2 blocks away from Prospect Park.  The laws in NY and Indiana (the state in which Jacob was born) are no different for same-sex couples than heterosexual couples, and thus "same-sex adopter friendly."

MEREDITH: Were you turned down by any agencies? Some agencies turn down interfaith couples or single adopters. Did you encounter any "no's?"

ERIC: We were never turned down by an agency or attorney. That said, we only contacted 2 agencies and 1 private-adoption attorney. We spent most of our research talking to adoptive parents, both gay and straight, to see what agencies and/or attorneys they worked with and who they recommended. So by the time we made calls, we knew we would pick one of the three places we contacted. The key point is that we knew, before making the calls, that they had no opposition to working with same sex couples. We're not big shoppers, so we weren't interested in speaking to more than 3 places. In the end, we decided private adoption was the best option for us, so we hired the private-adoption attorney. Private adoption is much different than working with an agency. I can elaborate if it's of interest to you.

MEREDITH: What surprised you most about the process of adoption? Can you describe what went more smoothly than you expected? And what didn't?

ERIC: The first surprising thing was although everyone warned me that finding a birthmother was the most challenging part ("Buckle up, you're in for a ride," said one friend), I was surprised, indeed floored at times, by the amount of crazy conversations I had with what seemed to be the most insane human beings I have encountered. The amount of calls it took to find "the one" was astounding, and the conversations really drove home the point that I had zero control in making the decision, that is the decision for the birthmother to either go through with the adoption, or pick us as a couple. Secondly, I was surprised (although in hindsight it makes sense) that many women had not made up their minds to pursue adoption when they called. I had 3 women change their minds and keep their child. I simply wasn't prepared for it. I had another have a miscarriage, and I wasn't prepared for that. Like I said, in hindsight, it makes clear sense that these are real possibilities.

The easiest part of adoption was the legal process. It could not have gone smoother in either NY or Indiana. We were both surprised at how seamless it was in Indiana. The attorney who worked with us through our NY attorney was outstanding.

MEREDITH: What would you tell other same-sex couples to help them be better prepared if they asked you? Is it the same thing you'd tell anyone? Or does the advice differ?

ERIC: My advice to anyone, gay or straight, is to hang in there when it seems like you will never adopt, because although there are some adoptive couples who have an easy time, most have to go through a lot of emotional searching before finding the one - a lot! But it WILL happen. We resigned ourselves to believing it wasn't going to happen to us, but it did, and we couldn't be happier with the way it turned out.


Enormous thanks to Jonathan Korzen, Media Consultant, American Academy of Assisted Reproductive Technology Attorneys, for assistance with this feature. Also, thanks to Judith Sperling-Newton, for preliminary information.