Joanna L. Grossman

When Same-Sex Couples Adopt: Problems of Interstate Recognition

By JOANNA L. GROSSMAN
Tuesday, June 9, 2009

The number of children raised by lesbian and gay parents has skyrocketed in the last two decades. According to 2000 census data, nearly 600,000 American households are anchored by a same-sex couple, and nearly a quarter of them are raising children. Yet, two recent cases – one from New York and one from Florida – are a potent reminder of the potential conflicts created by states' taking different approaches to the legal recognition of same-sex parenting. While the legal landscape has developed in a much more tolerant way for same-sex parenting than it has for same-sex marriage, significant obstacles remain, particularly when co-parents split and relocate.

Same-Sex Parenting: Parents' Rights in a Nutshell

The basic legal questions raised by same-sex parenting range from whether someone can adopt the biological child of a same-sex partner, to whether a same-sex spouse is entitled to a presumption of parentage for children born to the other during the marriage, to whether a same-sex couple can jointly adopt a child that is biologically related to neither of them. These legal issues have been actively litigated in many states, producing a patchwork of rules that vary from state to state.

As compared with same-sex marriage, which is currently authorized in only six states (Massachusetts, Connecticut, Iowa, Vermont, Maine and New Hampshire, in order of authorization), same-sex parenting has eked out legal protection in many states. Indeed, the intense public and political focus on same-sex marriage has permitted the law governing same-sex parenting to develop quietly in the courts.

One core issue is whether lesbians and gays possess the ability to legally adopt children – either as individuals, or as part of a same-sex couple. At one end of the legal spectrum is a state like New York, which permits both so-called "second parent" adoptions (where an individual adopts the legal or biological children of a same-sex partner) and joint adoptions by same-sex couples, as I discussed in an earlier column. Along the middle of the spectrum lie states that permit second-parent adoptions, but not joint adoptions, or vice-versa. There also appear to be states in which same-sex couples are permitted, in practice, to adopt despite the lack of a statute or judicial ruling on the subject.

The marked trend, however, is towards permitting same-sex couples and gay and lesbian individuals to adopt on the same terms as other couples and individuals. This trend makes sense given that a significant number of studies, which I have discussed in a previous column, suggest that children with gay parents "fare as well in emotional, cognitive, social, and sexual functioning as do children whose parents are heterosexual." The Iowa Supreme Court, in a recent ruling validating same-sex marriage – which I discussed earlier -- agreed that the bulk of the research supports these findings.

But there is another end of the spectrum, where four outlier states reside: Florida, Mississippi, Arkansas, and Utah. Section 63.042 of the Florida Code provides that "No person may adopt if that person is a homosexual." This categorical ban on adoption by homosexuals is the only one in the nation, enacted amid a vocal anti-gay campaign by celebrity Anita Bryant, which sought, among other things, to "Save Our Children" from gay parents.

Florida's ban was upheld by a federal appellate court five years ago in Lofton v. Department of Children and Family Services, and the U.S. Supreme Court unfortunately declined to review the case. A state trial judge did invalidate the ban in 2008, but such a ruling has little import unless affirmed by other courts in the state, especially ones higher in the food chain.

Mississippi and Utah bar same-sex couples from jointly adopting children, although neither state bans gay or lesbian individuals from adopting individually. And in the November 2008 elections, Arkansas voters enacted a referendum that prevents gays and lesbians – as well as unmarried straight couples who live together -- from adopting children, albeit indirectly. Arkansas' Act 1 prevents any individual who is "cohabiting with a sexual partner outside of a marriage which is valid under the constitution and laws of this state" from adopting or becoming a foster parent to a child. Since same-sex marriage can neither be celebrated nor recognized in Arkansas, this law deprives gays and lesbians from adopting unless they remain single. The law is under challenge, but its facial neutrality – that is, the fact that it technically applies to straight and gay cohabiting couples alike -- makes the success of the challenge less likely.

That states vary in their recognition of same-sex parenting rights presents an additional set of complications. What happens when same-sex partners become parents in one state, but then move to a state that does not accord the same protection to the parties' respective parent-child relationships? Two recent rulings illustrate aspects of the interstate recognition problem.

Embry v. Ryan: The Problem of Moving to Florida

The first of these rulings is Embry v. Ryan. While engaged in a romantic relationship with Lara Embry, Kimberly Ryan conceived and gave birth to a daughter in Washington State in 2000. Embry adopted the child a few months after her birth, and the couple jointly raised her until their relationship ended in 2004. The parties entered into a custody and visitation agreement after their break-up, but by 2007, the relationship had deteriorated to the point that Ryan refused to allow Embry to have any contact with the child.

Before splitting, Ryan and Embry had moved to Florida, a state, as noted above, that is uniquely hostile to lesbian and gay parenting. When Embry petitioned a Florida court for a declaratory judgment as to parental responsibility and rights, Ryan pointed to Florida's ban on gay adoption in response. She argued that because same-sex adoption is contrary to Florida's public policy, the state courts are not required to give full faith and credit to the Washington adoption.

The Florida appellate court rightly noted the flaws in Ryan's argument. The Full Faith and Credit clause of the U.S. Constitution requires that states give effect to judgments from sister states. Although the principles of full faith and credit can be complicated, the Supreme Court has made clear that a "final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land." There is no "public policy" exception to this command. (There may be such an exception, by contrast, when states are asked to honor the laws or public acts of sister states, but state court "judgments" have always received the most exacting form of full faith and credit.)

Moreover, Florida law specifically states that adoption decrees from other states must be recognized "as though the judgment were issued by a court of this state." There is no exception for gay second-parent adoptions built into this Florida provision, even though a separate provision in the same section specifically addresses the non-rights of gays and lesbians as would-be adoptive parents.

It thus makes no difference, in the end, whether Florida would have allowed Embry to adopt Ryan's biological child. Authorizing and recognizing are two distinct legal acts, and Florida here was clearly required to recognize and give effect to a valid adoption decree from the State of Washington – even though the State of Florida would not itself have authorized such a decree with respect to a same-sex couple.

New York's Ruling In re Sebastian: Anticipating the Florida Problem

A recent ruling in New York, In re Sebastian, outlines both the minefield of same-sex parenting rights as well as a potential fix to the situation. As the court noted in the first sentence of its ruling: "This case presents important questions about the ways in which a child's "parents' are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society."

The parties to the case, Ingrid and Mona, had been engaged in a longstanding intimate relationship, which culminated in marriage in the Netherlands (the first country to authorize same-sex marriage) in 2004. In New York, in 2008, the couple became parents together. Mona's eggs were fertilized in vitro by sperm from an anonymous donor; the resulting embryo was implanted into Ingrid's uterus. The procedure was successful, resulting in the birth of their son, Sebastian.

Unlike in many cases involving questions regarding same-sex couples and parentage, Mona and Ingrid came before a New York court without being in conflict with one another. The reason they are in court, instead, is simply that Mona seeks to adopt the child they both continue to raise. Although there are many aspects to this case, I'll focus here on just one question: whether Mona should be permitted to "adopt" the child when New York law already grants her full parentage rights by virtue of her marriage to Ingrid.

Mona's existing rights flow from two basic principles: First, New York recognizes her marriage to Ingrid, and, second, legal spouses are presumed to be parents of children born during the relationship. New York, unlike many other states, recognizes valid same-sex marriages from other jurisdictions, including foreign countries. This recognition fits into New York's long tradition of recognizing valid marriages from elsewhere, even when its own laws would not have permitted them in the first instance. Thus, as I have described in a prior column, a New York appellate court has given effect to a same-sex marriage from Canada, and Governor David Paterson issued an order extending the ruling to all state agencies.

Mona's parentage rights flowing from the marriage are not as plainly secure as the marriage itself, but New York law does strongly protect such rights within marital relationships. Although the state parentage laws contemplate the rights of "husbands" regarding children born to their "wives," the same principles can be applied to another woman. Moreover, Mona's claim is even stronger in this case than if she were connected to Sebastian by marriage alone; having donated the eggs used to conceive the child, she is also biogenetically related to him.

Despite the strong basis in this case for claiming full parentage rights, Mona sought to adopt Sebastian. In her view, a decree of adoption would be stronger protection for her parent-child relationship, particularly if the couple were to move to another state. The New York surrogate's court, which heard the initial petition, agreed.

Although adoption is traditionally used to create parent-child relationships where they do not already exist, the court here concluded that adoption could be used to shore up rights that might otherwise be vulnerable to challenge, particularly if the couple moved out of state. Although the State of New York provides many possible ways for Mona to establish her parental status with respect to Sebastian – her marriage to Ingrid, an acknowledgment of parental status by Ingrid, a petition to be listed on the child's birth certificate, or a "paternity" proceeding – none would provide protection as strong as an adoption decree.

The court in In re Sebastian thus anticipated the question broached in Embry: What must be done to make the rights of same-sex parents portable across the country? Here, the court correctly concluded that an adoption decree provides security for parentage rights that the other methods of establishing such rights do not. As the court observed, only adoption is "presumptively subject to Full Faith and Credit." Thus, it concluded that, although an "adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States."

Adoption Decrees Can Be Both Sword and Shield for Same-Sex Couples

Because states retain control of most issues of family law, including the rights of same-sex couples and gay and lesbian parents, problems of interstate conflict and recognition abound. But both the Florida and New York courts here have shown how an adoption decree can be used as both sword and shield in the fight for the rights of gay and lesbian parents and the best interests of their children. Ideally, however, state legislatures should establish future frameworks that better meet the needs of all families.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.