Samiksha Jaiswal (Editor)

LGBT adoption

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LGBT adoption

LGBT adoption is the adoption of children by lesbian, gay, bisexual and transgender (LGBT) persons. This may be in the form of a joint adoption by a same-sex couple, adoption by one partner of a same-sex couple of the other's biological child (step-child adoption) and adoption by a single LGBT person. Joint adoption by same-sex couples is legal in 25 countries and in some territories. Furthermore, 2 countries have legalized step-child adoption. Opponents of LGBT adoption question whether same-sex couples have the ability to be adequate parents (see LGBT parenting) while other opponents question whether natural law implies that children of adoption possess a natural right to be raised by heterosexual parents. Since constitutions and statutes usually fail to address the adoption rights of LGBT persons, judicial decisions often determine whether they can serve as parents either individually or as couples.

Contents

LGBT parenting

The existing body of research on outcomes for children with LGBT parents includes limited studies that consider the specific case of adoption. Moreover, where studies do mention adoption they often fail to distinguish between outcomes for unrelated children versus those in their original family or step-families, causing research on the more general case of LGBT parenting to be used to counter the claims of LGBT-adoption opponents. One study has addressed the question directly, evaluating the outcomes of adoptees less than 3-years old who had been placed in one of 56 lesbian and gay households since infancy. Despite the small sample, and the fact that the children have yet to become aware of their adoption status or the dynamics of gender development, the study found no significant associations between parental sexual orientation and child adjustment.

Arguments

Adoption of children by LGBT people is an issue of active debate. In the United States, for example, legislation to stop the practice has been introduced in many jurisdictions; such efforts have largely been defeated. There is agreement between the debating parties, however, that the welfare of children alone should dictate policy. Supporters of LGBT adoption suggest that many children are in need of homes and claim that since parenting ability is unrelated to sexual orientation, the law should allow them to adopt children. Opponents, on the other hand, suggest that the alleged greater prevalence of depression, drug use, promiscuity and suicide among homosexuals (and alleged greater prevalence of domestic violence) might affect children or that the absence of male and female role models during a child's development could cause maladjustment. Catholic Answers, a Catholic religious group, in its 2004 report on gay marriage addressed parenting by homosexual partners via adoption or artificial insemination. It pointed to studies finding higher than average abuse rates among heterosexual stepparent families compared with same-sex parents. The American Psychological Association, however, notes that an ongoing longitudinal study found that none of the lesbian mothers had abused their children. It states that fears of a heightened risk of sexual abuse by gay parents are not supported by research.

Several professional organizations have made statements in defense of adoption by same-sex couples. The American Psychological Association has supported adoption by same-sex couples, citing social prejudice as harming the psychological health of lesbians and gays while noting there is no evidence that their parenting causes harm. The American Medical Association has issued a similar position supporting second parent adoption by same-sex partner, stating that lack of formal recognition can cause health-care disparities for children of same-sex parents.

Britain's last Catholic adoption society announced that it would stop finding homes for children if forced by legislation to place children with same-sex couples. The Muslim Council of Britain also sided with Catholic adoption agencies on this issue. Catholic Charities of Boston also ended its founding mission of adoption work rather than comply with state laws conflicting with its religious practices.

Proponents of adoption by gay parents usually cite the following arguments:

  • The right of a child to have a family, guardians or people who can take care of their wellbeing
  • Human rights – child's and parent's right to have a family life
  • There are little or no differences between children raised by same-sex or straight couples. For that reason, sexual orientation of the parents has no relevance when it comes to raising a child
  • Evidence confirming that despite those opposed to LGBT+ parenting, same-sex couples can provide good conditions to raise a child
  • For the children, adoption is a better alternative to orphanage
  • Less formalities for step-parents in everyday life, as well as the situation of a death of a biological parent of a child
  • In some countries single same-sex people can adopt, therefore banning LGBT parenting (especially adoption) is artificial
  • Opponents of adoption by LGBT people usually cite the following arguments:

  • Same-sex couples would make children develop defined unwanted traits
  • Same-sex parents lack parental competence
  • Cases of parental abuse
  • Religious reasons
  • Violations of a child's rights
  • Public opinion

    A 2006 poll by the Pew Research Center found a close divide on gay adoption among the United States public, while a 2007 poll by CNN and Opinion Research Corp. said 57% of respondents felt gays should have the right to adopt and 40% said they should not. In the United Kingdom in 2007, 64% of people said they thought gay couples should be allowed to adopt and 32% said they should not. 55% of respondents thought that male couples should be able to adopt and 59% of people thought that lesbian couples should be able to adopt. In Brazil, a 2010 poll asked, "Do you support or oppose allowing gay couples to adopt children?" The poll found that 51% opposed adoption by same-sex couples and 39% supported it. An opinion poll conducted in late 2006 at the request of the European Commission indicated that Polish public opinion was generally opposed to both same-sex marriage and to adoption by gay couples. The Eurobarometer 66 poll found that 74% of Poles were opposed to same-sex marriage and 89% opposed adoption by same-sex couples.

    National debates

    As of March 2017, there are national debates on LGBT parenthood in the following countries:

  • Australia
  • Northern Territory
  • Chile
  • Czech Republic (step-child or partial adoption)
  • Germany (full joint adoption)
  • Hungary
  • Italy (full joint adoption)
  • Legal status

    Full joint adoption by same-sex couples is currently legal in 25 countries:

  • Andorra (2014)
  • Argentina (2010)
  • Austria (2016)
  • Belgium (2006)
  • Brazil (2010)
  • Canada (first jurisdiction 1996, last jurisdiction 2011)
  • Colombia (2015)
  • Denmark (2010)
  • Greenland (2016)
  • Faroe Islands (2016)
  • Finland (2017)
  • France (2013)
  • Iceland (2006)
  • Ireland (2016)
  • Israel (2008)
  • Luxembourg (2015)
  • Malta (2014)
  • Netherlands (2001)
  • New Zealand (2013)
  • Norway (2009)
  • Portugal (2016)
  • South Africa (2002)
  • Spain (2005)
  • Sweden (2003)
  • United Kingdom
  • England and Wales (2005)
  • Scotland (2009)
  • Northern Ireland (2013)
  • United States (first jurisdiction 1993, last jurisdiction 2016)
  • Uruguay (2009)
  • Full joint adoption by same-sex couples is currently legal in the following subnational jurisdictions:

  • Australia:
  • South Australia (2017)
  • Queensland (2016)
  • Australian Capital Territory (2004)
  • New South Wales (2010)
  • Tasmania (2013)
  • Victoria (2016)
  • Western Australia (2002)
  • Crown Dependencies and British Overseas Territories:
  • Bermuda (2015)
  • Gibraltar (2014)
  • Guernsey (2016)
  • Isle of Man (2011)
  • Jersey (2012)
  • Pitcairn Islands (2015)
  • Mexico:
  • Coahuila (2014)
  • Mexico City (2010)
  • Campeche (2016)
  • Colima (2016)
  • Michoacán (2016)
  • Morelos (2016)
  • The following countries permit step-child adoption in which the partner in a relationship can adopt the natural, and in case of Germany, the adopted child of his or her partner:

  • Estonia (2016)
  • Germany biological (2005) and adopted (2013) (step-child adoption of adopted children in practice makes it a joint adoption, but in "two steps").
  • Italy (2016 – on a case-by-case basis)
  • Slovenia (2011)
  • Switzerland (not yet in effect)
  • Since 2014 in Croatia, a similar institution called partner-guardianship exists. It allows a life partner who is not a biological parent of their partner's child or children to gain parental responsibilities on a temporary or permanent basis.

    South Africa

    South Africa is the only African country to allow joint adoption by same-sex couples. The 2002 decision of the Constitutional Court in the case of Du Toit v Minister of Welfare and Population Development amended the Child Care Act, 1983 to allow both joint adoption and stepparent adoption by "permanent same-sex life partners". The Child Care Act has since been replaced by the Children's Act, 2005, which allows joint adoption by "partners in a permanent domestic life-partnership", whether same- or opposite-sex, and stepparent adoption by a person who is the "permanent domestic life-partner" of the child's current parent. Same-sex marriage has been legal since 2006, and is equivalent to opposite-sex marriage for all purposes, including adoption.

    Asia

    LGBT adoption rights in Asia, especially Western Asia are currently debated yet have changed to be more inclusive of the LGBT+ communities. Most Asian nations still either criminalise people of the LGBT+ community or do not have anti-discrimination laws, preventing LGBT+ adoption, whilst some Asian countries allow almost all rights. For example, Israel allows LGBT+ members to serve in its defence force and adopt, but it is the only country in its region to legalize adoption. All other countries state that even marriage is illegal, affecting the other rights of LGBT peoples. As depicted on the right, the image shows the legal status of adoption with same sex couples in part of Western Asia. Almost all of the area has either criminalised homosexuality or have ambiguous/unknown laws in place.

    Israel

    A January 2005 ruling of the Israeli Supreme Court allowed stepchild adoptions for same-sex couples. Israel previously allowed limited co-guardianship rights for non-biological parents. In February 2008, a court in Israel ruled that same-sex couples were now permitted to adopt a child regardless of whether the child is biologically related or not to either parent. This marked a watershed in granting equal rights to all gay people in Israel. isRealli, the official blog of the State of Israel, frequently publishes updates on gay adoption news in Israel. The site also has a complete timeline of gay rights milestones in Israel.

    Europe

    In February 2006, France's Court of Cassation ruled that both partners in a same-sex relationship can have parental rights over one partner's biological child. The result came from a case where a woman tried to give parental rights of her two daughters to her partner, with whom she was in a civil union. In the case of adoption, however, in February 2007, the same court ruled against a lesbian couple where one partner tried to adopt the child of the other partner. The court stated that the woman's partner cannot be recognized unless the mother withdrew her own parental rights. On 17 May 2013, French President François Hollande signed into law the bill that opened marriage and adoption rights linked to it for same sex couples.

    In 1998, a nursery school teacher from Lons-le-Saunier, living as a couple with another woman, had applied for an authorization to adopt a child from the département (local government) of Jura. The adoption board recommended against the authorization because the child would lack a paternal reference, and thus the president of the département ruled against the authorization. The case was appealed before the administrative courts and ended before the Council of State, acting as supreme administrative court, which ruled against the woman. The European Court of Human Rights concluded that these actions and this ruling were a violation of Article 14 of the European Convention on Human Rights taken in conjunction with Article 8.

    On 2 June 2006, the Icelandic Parliament unanimously passed a proposal accepting adoption, parenting and assisted insemination treatment for same-sex couples on the same basis as heterosexual couples. The law went into effect on 27 June 2006.

    In Bulgaria, according to the Ministry of Justice the laws regarding adoption "lack a norm, concerning the sexual orientation of the individuals". Therefore, a single gay person or same-sex couples may adopt.

    On 17 May 2013, the Portuguese parliament approved a bill in first reading allowing "co-adoption" of the biological or adopted child of the same-sex spouse or partner, where that spouse or partner is the only legally recognized parent of the child (e.g. the mother with the natural father not being registered). However, in October 2013 members of parliament opposed to the bill proposed a referendum on the issue and killed a motion to have the second vote in the plenary; the motion on the possible referendum was then considered, but the Constitutional Court declared it unconstitutional. On 14 March 2014, the original bill was rejected in second reading. On 20 November 2015, 5 proposals from several left-wing parties were voted favourably by the new parliament as result of the 4 October General Elections.

    In July 2014 through Life Partnership Act Croatia recognized an institution similar to step-child adoption called partner-guardian. A partner who is not a biological parent of a child can share parental responsibilities with a biological parent or parents if they agree to it, or if the court decides it is in the best interest of a child. Additionally, a biological parent or parents can temporarily give a partner who is not a biological parent full parental responsibilities. A partner who is not a biological parent can also gain permanent parental responsibilities through an institution of partner-guardian if both biological parents of a child have died, or exceptionally if a second biological parent of a child is unknown, and if the court decides it is in the best interest of a child.

    In January 2015, the Constitutional Court of Austria found the existing laws on adoption to be unconstitutional and ordered the laws to be changed by 31 December 2015 to allow joint adoption by same-sex couples in Austria.

    On 6 April 2015, the Children and Family Relationships Bill 2015 passed by Parliament in March 2015 which extends full adoption rights to cohabiting couples and those in civil partnerships was promulgated by the President of Ireland. The law went into effect a year later on 6 April 2016.

    On 20 November 2015 the Portuguese Parliament approved; by 141 votes against 87 with 2 abstentions; a diploma presented by all the parties (except the right-wing PàF) to allow same-sex adoption. On January 26, 2016, the conservative Portuguese President Anibal Cavaco Silva vetoed the bill and a week later the Portuguese Parliament overridden the veto. The law went into effect on March 1, 2016.

    On 22 June 2016 the Italian Supreme Court of Cassation upheld a lower court's decision to approve a request for a lesbian to adopt her partner's daughter. Prosecutors had appealed against the decision by the Rome court of appeal. Decisions by the supreme court set a precedent.

    Mexico

    In Mexico City, the Legislative Assembly of the Federal District passed legislation on 21 December 2009 enabling same-sex couples to adopt children. Eight days later, Head of Government ("Mayor") Marcelo Ebrard signed the bill into law, which officially took effect on 4 March 2010.

    On 24 November 2011, the Coahuila Supreme Court struck down the state's law barring same-sex couples from adopting, urging the state's legislature to amend the adoption law as soon as possible. On 12 February 2014, the state's congress overwhelmingly approved the measure more than two years following the supreme court decision.

    On 3 February 2017 the SCJN emitted tesis 08/2017 in which it is stated that the family of the LGBT community doesn't end with a couple, but that it also extends onto the right to have and raise children. Therefore LGBT couples wishing to form a family and adopt children will be legally protected and can't be limited by any governmental entity.

    Australia

    In Australia, same-sex adoption is legal in most places, except within the Northern Territory. The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as 'other people significant to the care, welfare and development' of the child. But the lesbian co-mother and gay co-father(s) will be treated in the same way as a social parent is treated under the law; they will not be treated in the same way as a birth parent. In May 2007, the Victorian Law Reform Commission in Victoria released its final report recommending that the laws be modified to allow same sex couples to adopt children have not been implemented yet, while all other recommendations have been implemented. On the 9 December 2015, the Victorian state parliament passed a bill that allows same-sex couples to adopt children. The bill received royal assent on 15 December 2015 and went into effect on 1 September 2016.

    New Zealand

    The Marriage (Definition of Marriage) Amendment Act 2013, which came into force on 19 August 2013, allowed same-sex marriage and permitted married same-sex couples to jointly adopt children. Previously, an LGBT individual was able to adopt children, but same-sex couples could not adopt jointly.

    Currently there are no specific barriers preventing an LGBT individual from adopting children, except that a male individual cannot adopt a female child. The same-sex marriage law became effective from 19 August 2013, and since then married same-sex couples were able to adopt children jointly. Unmarried couples of any sex and couples in a civil union can now jointly adopt children, under a New Zealand High Court ruling in December 2015. The ban breached the New Zealand Bill of Rights Act 1990. The minimum age to adopt in New Zealand is 20 years for a related child, and 25 years or the child's age plus 20 years (whichever is greater) for an unrelated child.

    South America

    In Argentina, Brazil, Colombia, French Guiana, and Uruguay same-sex couples can jointly adopt. A government-sponspored adoption law in Uruguay allowing LGBT adoption was approved by the lower house on 28 August 2009, and by the Senate on 9 September 2009. In October 2009, the law was signed by President and took effect. According to Equipos Mori Poll's, 53% of Uruguayans are opposed to same sex adoption against 39% that support it. Interconsult's Poll made in 2008 says that 49% are opposed to same sex adoption against 35% that support it. On 4 November 2015, in a 6-2 Constitutional Court ruling, Colombia decided to allow adoption by LGBT peoples. In Chile, same-sex couples are allowed to apply to adopt a child. If applicants are approved as suitable to adopt, legally only one of them would be the legal parent of the child. A 2017 survey, shows that 45% of Chileans support same sex adoption, whilst 50% are opposed.

    Summary of laws by jurisdiction

    Notes on the Northern Territory:

  • Within the Northern Territory, single people require a court order and de facto couples of any gender cannot jointly adopt a child. Only married heterosexual couples can adopt a child.
  • References

    LGBT adoption Wikipedia


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