In my last civic issues blog, I discussed the extensive issue of paid parental leave in the United States compared to other countries and what it meant for mothers and fathers. Today I would like to discuss the related topic of same sex couples and adoption. Obviously due to biological reasons, same sex couples are unable to have children through traditional reproductive practices, and so they are already at a disadvantage in the realm of being able to conceive a child. Adoption and foster care are common options that many same sex couples turn to when hoping to start a family. However, even after the Obergefell v. Hodges 2015 Supreme Court ruling and “its gay marriage decision to extend ‘to marriage-related benefits—which includes the right to adopt,'” same sex couple still face a variety of challenges when trying to adopt and/or foster children. These challenges can be seen at the state level, agency level, and also in terms of status.
First I would like to highlight some of the obstacles to adoption that same sex couples experience due to state laws. After the Obergefell ruling, some states did not approve of it entirely, although they had to follow it, and consequently began to form laws that would be a hindrance to adoption by same sex couples. Many of these laws are religious based and allow for such organizations, even state-funded welfare agencies, that are religiously based to turn away or not place children with same sex couples. According to findlaw.com, “Supporters of such restrictions argue that private agencies should not be compelled to abandon their sincerely held religious beliefs.” Since legislation such as this has begun, there have been many court case regarding them, although none have made it to the Supreme Court due to the legality of this falling under the first amendment and one’s right to uphold their religious beliefs.
In addition to state laws that allow agencies to refuse service to gay couples, there are many states across the US that simply do not have laws that specifically protect against discrimination on the terms of sexual orientation and gender for adoption and/or foster care. If we look at the following maps, the states highlighted in the same tan color of Florida are those which lack such legislation. As we can see, for most states they are the same for both foster care and adoption.
(for foster care)
(for adoption)
Now let us take a look at adoption on the agency level and how discrimination may appear or be allowed in different types. According to findlaw.com, the different types of adoption include public agency adoption, private agency placements, independent and open adoption, and international adoption.
As for public agency adoptions, it is illegal in the United States to refuse couples on account of sexual orientation, although such loopholes do exist in which a couple could be rejected. The example findlaw.com provides for such discrimination is that “[s]ocial workers who are uncomfortable with homosexuality may find the prospective adoptive parents unsuitable for ‘other reasons'” and due to the fact that local courts are the final factor in which a couple may be deemed suitable, the community in which they live and its beliefs is a major factor.
Private agency placements however evaluate couples on their own set considerations which can include sexual orientation, although it may not always be a factor.
For an independent adoption, the placement of a child with a couple or family is entirely determined by the families involved. This is because independent adoptions are carried out by those not associated with an agency such as a physician. Similarly, although not the same, “[a]n open adoption involves some amount of initial and/or ongoing contact between birth and adoptive families” in which they decide everything themselves. This means that for these situations, discrimination would not be at an agency level but determined by the beliefs of the families involved.
As for international adoption, the level of discrimination is often determined by the country in which a couple is trying to adopt from and its cultural beliefs which may affect one’s ability to find an agency that is open to a couple’s sexual orientation.
So why is this such an important topic? This is a relevant topic today, especially due to the recent change in power in the United States government. With the democratic candidate taking over the presidential office after a republican candidate, we are bound to see quite a bit of change in a variety of policies. Recently in June of 2020, the Trump administration argued that taxpayer organizations, such as the Catholic Social Services group in Philadelphia, Pennsylvania, should be able to refuse placing children with same sex couples, despite violation nondiscriminatory ordinances in the city in this instance. The brief that was filed by the Department of Justice stated that this was because “Philadelphia has impermissibly discriminated against religious exercise” according to NBC News. With many feminists falling under liberal views and holding views that support the LGBTQ+ community, this change in government will likely see support from feminists to enact a change in such policies that hinder same sex couples’ ability to adopt or foster children.
Sources:
https://www.findlaw.com/family/adoption/adoption-and-same-sex-couples-basics.html
https://www.lgbtmap.org/equality-maps/foster_and_adoption_laws
https://www.findlaw.com/family/adoption/adoption-and-same-sex-couples-types-of-adoption.html
I was surprised to learn about the Obergefell decision, especially given how recent it was and how it seems to go against a lot of the beliefs that are currently held by many Americans. I wasn’t aware of the many outlets that can allow facilitate adoption, and it’s unfortunate that there are so many barriers for couples within each service. I’m sure that this issue will look very different in a couple years, especially given how difficult the foster system can be for kids that hope to be adopted.
Hi Madison! This is a really interesting issue to discuss for your blog today! I did my paradigm shift essay from last semester on what are considered families in America, and I ended up doing a lot of research into LGBTQ families. This is a fairly new issue since it wasn’t until 2015 that gay marriage was even legalized across the country, and so now married LGBTQ couples have to face different issues regarding eligibility for adoption and foster care. This was really well researched! Thanks for another interesting blog!