The bizarre world of "second-parent" adoption laws.

The bizarre world of "second-parent" adoption laws.

The bizarre world of "second-parent" adoption laws.

The law, lawyers, and the court.
Jan. 3 2003 5:26 PM

Mum and Mummer

The bizarre world of "second-parent" adoption laws.

This week, a Virginia baby made news by coming into the world at 12:01 a.m. on Jan. 1, 2003. Unaware of the fog of reporters, flashbulbs, and the weight of history upon her, the infant probably just wanted a nap, a shower, and a cold beer. But she will quickly discover that her situation is unusual: The New Year's baby has two mommies.

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Born to birth mother Helen Rubin and her partner, Joanna Bare, the Virginia New Year's baby was conceived through artificial insemination (the father, whose name has not been released, will play no role in the child's upbringing). What makes the case so interesting is that the mommies were forced to move last week from Virginia to Maryland because in Virginia, Bare would likely have been prohibited from adopting the baby and assuming shared legal responsibility for her. Rubin would have been the sole parent, and Bare would have been reduced to the legal status of "roommate" (a la Three's Company ... .)

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

It's virtually impossible to know how many same-sex couples have adopted children around the country, since most adoption records are sealed. The Lambda Legal Defense Fund estimates 6 million to 10 million gay parents are caring for 6 million to 14 million children in this country. Many of those families are step- or blended families, and adoption is increasingly the way to formalize these relationships. Virginia is not one of the truly medieval states that expressly prohibit "second-parent" adoptions—that is, adoptions by unmarried partners (gay or straight). Still, there is not a single case of a Virginia court sanctioning such an adoption, and Bare was right not to take her chances there.

Adoption is a purely statutory matter in the United States, and all adoption law is promulgated at the state level. So, the adoption laws in the country are a confused patchwork from the outset. All state laws purport to advance "the best interest of the child," but that is where the commonalities end. Until 1973, most states prohibited any gay adoption because homosexuality was commonly held to be a mental disorder. Three states (Florida, Utah, and Mississippi) still prohibit gay adoptions altogether, and only eight states plus the District of Columbia explicitly prohibit courts from discriminating against a same-sex second parent. All of which means that for most people in the majority of states, courts may or may not discriminate against a gay couple seeking to adopt jointly, so long as they can root out some "best interests of the child" justification for doing so.

Gay couples should be warned: Along with the privileges and joys of inclusion in formerly restrictive legal classifications such as co-parents come obligations. Last month a Pennsylvania Superior Court ruled that a lesbian partner of a woman who bore five children over the course of their relationship owed child support, despite the fact that she had never formally adopted the children in the first place. "It is clear from the record that [the partner] acted as a 'co-parent' with mother in all areas concerning the children's conception, care and support," wrote the court. This result is one of the first appellate decisions to recognize a gay partner as a functional co-parent, even in the absence of formal adoption. That's because Pennsylvania has been one of the most progressive states in the country in terms of sanctioning gay adoptions.

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The real problem facing opponents of gay adoption is that while they may feel religiously or morally outraged at the possibility of a child being reared in such an environment, the legal test for an uncontested adoption is simply whether it's in the best interest of the child. And rarely should a court find that being embraced by a loving household is worse for a child than languishing in foster care. Since there are no laws barring parents who just happen to be gay from bearing and raising children alone, the argument against allowing their gay partner to adopt their child becomes that being loved by two gay parents is somehow worse than being loved by just one. Which makes no sense at all.

In the Fort Worth Star-Telegram last month, Michael Craven, executive director of the Dallas-based Center for Decency, put forth his best argument for barring gay adoptions. "If you allow gay couples to adopt, what moral basis do you have to stop same-sex pedophiles from adopting if you lose all moral boundaries?" he asked.

Well, you'd have those laws that prohibit pedophiles from adopting, for one thing …

A report published in 1995 by the American Psychological Association stated that, having reviewed 43 studies, "the results of existing research comparing gay and lesbian parents to heterosexual parents … are quite uniform: common stereotypes are not supported by the data." This is why the American Academy of Pediatrics issued a policy last February stating that it supported the right of gay couples to adopt children—whether they do so jointly or by adopting a partner's child. It's also why so many gay parents have been able to adopt singly, regardless of state laws; adoption agencies do not inquire into a prospective parent's sexual orientation. They are more interested in placing children in stable, loving homes.

The American public is still not persuaded. In an ABC news poll from earlier this year, only 47 percent of adults surveyed believed that gay couples should be allowed to adopt as a matter of law. And this ambivalent public support doubtless explains why state laws on gay adoption are in such disarray. No one can muster a decent argument for banning gay adoption, and there's no evidence that it harms children. But we're still encumbered by the notion that having two mommies or two dads is somehow more harmful to a child  than having one mommy and no dad, or no mommy or dad at all. As the Supreme Court stands poised this term to recognize that what gay couples do in their bedrooms is well and truly private, it's time for the rest of us to accept that shared custody of their children deserves to be both public and legal.