Explained in our previous article, Part 1 | How Obergefell Changed Adoption for Same Sex Couples As We Know It, same-sex adoption is now available for married LGBT couples.
The Supreme Court’s marriage cases have expanded family building options for LGBT couples and single people, but they were not a silver bullet. This post will look at some of the hurdles that still remain.
Despite Marriage Equality Ruling, Hurdles Still Exist for Same Sex Couples Adopting
Are there any states that still have barriers to LGBT people adopting?
The Supreme Court’s opinion only addressed the right of same-sex couples to marry; it did not directly address differential treatment of same-sex and different-sex couples. Some states still have laws on the books that make it harder for us as LGBT people to adopt. For instance, Mississippi law forbids two people of the same-gender from adopting. After an adoption is finalized, Texas and Louisiana will not issue an amended birth certificate naming two mothers or two fathers as the child’s parents – whether the adoption is finalized in those states or another state. But the refusal of those states to issue birth certificates reflecting the child’s legal parents does not affect the parental rights of the mother or father who is not listed on the birth certificate. It is difficult to imagine how those laws can continue to be justified after Obergefell, but they are still valid for the time being and families should consider those restrictions when presented with a potential placement from those states.
Utah and Virginia used to restrict adoption to same-sex couples. However, when marriage equality came to those states last year, they had no choice but to permit equal access to adoption. Florida was notable in that it was the only state that prohibited “homosexuals” from adopting, but that law was invalidated by the Florida courts several years ago and formally repealed earlier this year.
Is it possible for unmarried same-sex couples to adopt jointly?
The Supreme Court’s decision only addressed marriage rights. It did not address whether LGBT people, married or unmarried, should be able to access certain rights, such as adoption rights. There are a handful of states that specifically allow unmarried couples, gay or straight, to adopt jointly. There are several states that do not allow any unmarried couples to adopt. And finally there are states where the law is not clear and the practice varies from judge to judge. Unmarried couples are in the same place they were before the Supreme Court’s ruling.
Brian Esser is a solo practitioner whose practice focuses on building families through adoption, surrogacy, and assisted reproductive technology, and protecting families through proper estate planning.