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A New York Court Authorizes A Lesbian Couple's Joint Adoption of A Child:
Part of a Growing Same-Sex Adoption Trend

Monday, Apr. 19, 2004

On last week's episode of "ER," the popular prime-time medical drama, the ending credits rolled as Dr. Kerry Weaver was crying, "Henry's my son, Henry's my son," into a closing door.

"No," the man trying to slam the door replied. "He's Sandy's son."

Sandy -- Kerry's lesbian partner, a firefighter -- had just died from injuries she sustained when a burning building collapsed. Earlier this season, Sandy had given birth to a son, Henry, conceived through artificial insemination. (The couple had originally planned for Kerry to be the biological mother, but she miscarried in a previous season.) Sandy and Kerry had always talked about "our son;" and Kerry had repeatedly talked about being Henry's mother.

Sandy's family was supportive of her relationship with Kerry and their co-parenting of Henry--until Sandy died, that is. It was her brother slamming the door in Kerry's face, after explaining to Kerry that Sandy's parents had taken Henry.

The episodes to come will undoubtedly test the validity of Kerry and Henry's mother-son relationship, since Kerry had not (to the viewer's knowledge) adopted him and was not biologically related to him.

"ER," of course, imitates life, and real-life gay co-parents face similar issues when the law may not recognize their functional parent-child relationships. Kerry is, like many of these co-parents, a "legal stranger" to Henry, despite her heartfelt belief that she is his mother.

The legal issues facing gay or unmarried co-parents have been actively litigated in most states. The latest addition is the decision of a New York appellate court, which held, for the first time, that two unmarried adults can jointly adopt a child who is neither one's biological child.

This is a victory for same-sex couples, and unmarried opposite-sex couples. It is also a victory for the children -- for the adults acting as their parents can now be recognized as such.

The Recent Trend Allowing Adoption by Gay or Lesbian Couples

The first state adoption laws were passed in the 1840s, and eventually every state has followed suit. (There is no natural right to adopt another person, in the absence of a statute making it possible.) Generally, states agree that both married couples and single persons can adopt children.

However, states diverge over the treatment of two other categories of potential adopters: single individuals who are homosexual; and couples, whether opposite-sex or same-sex, who are not married.

The New York decision is part of a recent judicial trend of allowing gay adoptions, and broadly interpreting statutes that present various obstacles to such adoptions. At least twenty-two states have now explicitly recognized gay and lesbian "co-parent adoptions" -- a term used to describe the situation when one adult legally adopts the biological child of his or her partner.

California is the latest to recognize co-parent adoptions, with an opinion from its Supreme Court last August. In Sharon S. v. Superior Court, the Court effectively validated the more than 20,000 co-parent adoptions to which lower courts in California had given the green light. The state agency that oversees adoptions had an official policy of permitting such adoptions.

The 6-1 ruling interpreted an adoption statute that neither expressly permitted nor expressly barred adoption by a second parent that preserves the child's legal relationship with her birth parent. (The ruling was significant because this wording is typical of other states' statutes as well.)

The California Supreme Court majority recognized the many benefits to a child of transforming a person who acts like a parent from a "legal stranger" to a "legal parent." And it thus allowed the co-parent adoption.

States That Have Bucked the Growing Trend

A few states have taken positions against gay adoption, but they are outliers, given the growing trend in favor of it.

Today, only one state, Florida, categorically refuses to allow homosexuals to adopt children. That ban was recently upheld in a surprising opinion from the U.S. Court of Appeals for the Eleventh Circuit in Lofton v. Department of Children and Family Services. In that case -- also discussed in a prior column by Joanne Mariner -- the Court said that a gay man could not adopt the HIV-positive child he had raised from the ages of two months to ten years.

The Eleventh Circuit accepted Florida's argument that the adoption statute promoted placement of adoptive children in marital families. It also accepted Florida's argument that heterosexual individuals were more likely to be better parents than homosexual ones. (As I have discussed in an earlier column, however, current research undermines any such claim.)

And in recent years, two other states -- Mississippi and Utah -- have passed statutes prohibiting same-sex couples from becoming adoptive parents together, although neither bans gay or lesbian individuals from adopting as individuals. (The Utah statute also bans heterosexual unmarried couples from adopting.)

A few years ago, in Arkansas, a bill to ban gays and lesbians from adopting was introduced, but failed to make it out of committee.

Finally, in other states, adoption agencies or courts may take a parent's sexual orientation into account when deciding whether, respectively, to recommend or approve any petition to adopt a child.

New York's Decision in Matter of Adoption of Carolyn B.

New York does not prohibit single persons from adopting. Nor does it prohibit gay or lesbian individuals from adopting children. (It does, however, prohibit a person from adopting another adult when the two are in an intimate relationship.) And like California, New York's highest court, the Court of Appeals, has already recognized the validity of a co-parent adoption in its 1995 opinion in In re Matter of Jacob.

The issue in Carolyn B. was whether a set of would-be adoptive parents could adopt a child biologically related to neither of them.

The trial judge denied the couple's petition to adopt, citing N.Y. Domestic Relations Code § 110, which provides that "[a]n adult married person or an adult husband and his adult wife together may adopt another person." This statute, like those in many other states, neither expressly proscribes a joint adoption, nor expressly authorizes it.

In Jacob, the Court considered two petitions for co-parent adoption: one by the unmarried boyfriend of a child's biological mother (with the biological father's consent), and the other by the lesbian partner of a child's biological mother. In both cases, the trial court had denied the petitions because section 110 did not authorize adoptions by "unmarried couples."

But because only one adult was seeking to adopt in those cases, the Court did not have to grapple with the statutory language quoted above. Simply because the co-parent was in a relationship with the biological parent did not mean that they were adopting "together," the Court concluded.

This conclusion was guided by the well-established principle of New York law that adoption is "a means of securing the best possible home for a child." This was certainly advanced, the Court reasoned, by "allowing the two adults who actually function as a child's parents to become the child's legal parents." Legal parentage comes with a variety of financial, personal, and emotional protections that often elude functional parentage.

That brings us to Carolyn B., in which two women were seeking to adopt a child together--with whom neither of them had a pre-existing parent-child relationship. Their petition was unopposed and the adoption agency recommended "with pleasures and without reservation" that the adoption be permitted to take place. Yet, as in Jacob, the Family Court dismissed the petition because of section 110 failure to explicitly countenance joint adoptions by unmarried couples.

The appellate division reversed, and held section 110 to be no bar to the adoption. The same considerations of legislative language, policy and history that had influenced the Court of Appeals in Jacob drove the decision here.

It is consistent, the appellate court noted, with "both the letter and the spirit of the statute as it has developed: 'encouraging the adoption of as many children as possible regardless of the sexual orientation or marital status of the individuals seeking to adopt them.'"

An opposite conclusion in Carolyn B. would have been nonsense not only because children are better off with legal parents than without them, but also because the statute would clearly have permitted the two women to file successive petitions for adoption. The first could file as a single individual, seeking to adopt a child with no other legal parents. Once approved, the second could petition for a co-parent adoption--of her partner's legally adopted child--per the ruling in Jacob. This two-step procedure would serve the interests of no one.

Same-Sex Adoptions in Broader Context

In sum, while there are still outlier states, a general consensus has emerged that gays and lesbians ought to be able to adopt--and probably ought to be able to do so jointly.

That leads to an interesting contrast. Recently, courts, legislatures, and politicians have been grappling with the recent surge in gay marriage advocacy and opposition. But at the same time, those same bodies are quietly recognizing rights for gays and lesbians that have traditionally been reserved for heterosexuals--the right to jointly adopt, the right to sue for wrongful death, as I have discussed in a previous column, and the right to make reciprocal medical decisions, to name a few.

These rights are not a substitute for the right to marry, of course. But they do bring same-sex couples into closer parity with opposite-sex ones -- and unlike the gay marriage issue, these decisions have generated little publicity and little backlash. That alone is a sign of hope for equality.

Joanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University. Her other columns on discrimination and family law issues may be found in the archive of her columns on this site.

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