Chapter 9: Legal considerations for LGBTQ Adoptive Parents

Laws surrounding adoption vary by state — and can be different for LGBTQ people. It’s important to know these laws well before embarking on an adoption process, and to contract with adoption professionals with extensive experience working with the LGBTQ community.

 

Video 10 - Laws

 

“There are many myths around adoption, and laws do vary state to state,” said Barnaby Murff, Chief Executive Officer, Extraordinary Families. “

LGBTQ people can adopt in all 50 states

First things first — LGBTQ people and couples can legally adopt and serve as foster care parents in every state in the country. This is thanks to the the Supreme Court ruling, on June 26, 2015, which struck down all bans on same-sex marriage in the country. This ruling, in turn, paved the way for gay adoption to become legal across the country.

On March 31, 2016, a Mississippi federal judge ruled that the state's ban on same-sex couples was unconstitutional, making Mississippi the last state to have such a law overturned. Since then, gay adoption has been legal in all 50 states and Washington, DC.

So-called “religious freedom” bills

Following the passage of nationwide marriage equality, adoption and foster care by LGBTQ people and couples became legal in all 50 states. However, many states have started passing bills that allow tax-funded child welfare agencies to legally discriminate against prospective LGBTQ parents on the basis of religious objections. (Some others have passed pro-LGBTQ bills forbidding this.) These laws also often target single people, and have even been used to target people of different faiths. 

States that have passed these so-called "religious freedom" bills include: Alabama, Mississippi, North Dakota, South Dakota, Tennessee, Texas, and Virginia. These bills, while incredibly  discriminatory, do not mean it is now illegal for LGBTQ to adopt in these states — rather, it is up to the discretion of individual state-funded child welfare agencies whether or not to work with certain individuals based on religious objections. "It may be harder in some states than others, but every state has at least one adoption agency that will work with LGBTQ individuals and couples," said Trey Rabun of Amara. 

The Hague Convention — international adoption

International adoptions by United States citizens have decreased in recent years, as many countries have tightened requirements thanks to standards imposted by the Hague Convention, signed by many global countries in 1993. The Convention is meant to safeguard children during the intercountry adoption process, and protect against child trafficking. 

Two main parts of the Hague Convention agreement include: 1) ensuring the child in question has been deemed eligible for adoption by the country of origin, and 2) Making sure due consideration has been given to trying to find an adoptive placement in the child's own country.

The Hague Convention has been a great tool to help deduce the incidence of child trafficking — and has also meant more children are being adopted in their home countries, rather than abroad. While rarer than it once was, there are plenty of children successfully adopted internationally by parents in the United States each year. 

Finding a Hague-accredited adoption agency

In addition to finding an LGBTQ-affirming adoption agency, parents hoping to adopt from abroad will also need to work with a Hague-accredited adoption agency that is licensed to facilitate intercountry adoptions. There are fewer of these agencies to choose from, but Spence Chapin, an agency based in New York and New Jersey — and a close partner of Gays With Kids — is one of them. 

Many countries prohibit adoption by LGBTQ adoptive parents 

Prospective parents hoping to build their families through international adoption are subjected to the rules of both the United States and the country of the child's origin — and many countries around the globe do not permit adoption by openly LGBTQ individuals or couples. 

There are some exceptions. Spence Chapin, an adoption agency based in New York and New Jersey, has successfully worked to place children from both South Africa and Colombia in LGBTQ adoptive homes. It's best to speak with an experienced international adoption lawyer about the best path forward for you. 

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