Adoption Law Considerations for Gay Men

Navigating Adoption Laws for LGBTQ Dads

Laws governing adoption are complex and varied. One reason is because adoption agencies are licensed at the state level and subject to state laws. Each state has its own set of laws and regulations.

Legal Challenges Facing LGBTQ Adoptive Parents

Adoptive LGBTQ parents may face some challenges arising from state legislation. Joint adoption (when a couple becomes the child’s legal parents) is possible for LGBTQ parents in EVERY state + Washington D.C., but some states have passed laws that permit state-licensed agencies to refuse to provide services to LGBTQ people, including married couples, if doing so “conflicts with their religious beliefs.” This can make finding an open and welcoming agency more difficult. Presently 10 states have passed such legislation:

Alabama
Kansas
Michigan*
Mississippi
North Dakota
Oklahoma
South Dakota
South Carolina
Virginia
Texas

* Applies to privately funded agencies only.

LGBTQ-friendly States

Eight states + Washington D.C. have passed joint adoption laws that prohibit discrimination based on sexual orientation and 6 of those* also include discrimination based on gender identity:

California*
Maryland
Massachusetts
Michigan**
Nevada
New Jersey*
New York*
Rhode Island*
Washington D.C.*

** Michigan is a unique case. State funded agencies are not allowed to discriminate but privately funded agencies are.

The Movement Advancement Project provides groundbreaking, independent research, including maintaining equality maps specific to state adoption and foster laws. For the most up-to-date information, visit: http://www.lgbtmap.org/equality-maps/foster_and_adoption_laws

What About the Other 30+ States?

Most other states have no laws specific to LGBTQ adoption, however at least 20 states do have some statewide protections that include sexual orientation. These protections include areas like employment and housing, and also include “public accommodations.” Most courts consider adoption agencies to fall under this category of protection.

What is Second Parent Adoption?

Some states do not permit unmarried couples to adopt jointly. Today, the majority of LGBTQ couples seeking to adopt are married, but when unmarried couples wish to adopt, and a match is made in a state that only allows married couples to adopt, one parent must first adopt the child. Later, the second parent would complete a second parent adoption to also become the child’s legal parent. Not all states permit second parent adoptions, so it’s important to know the laws in your state.

What Happens When Adoptive Parents and Birth Parents Reside in Different States?

The answer to this question is complicated. Sometimes the state where the child is born determines the law. But sometimes the laws of both states must be followed. Laws vary significantly between states making the process complex, especially concerning allowable expenses paid to the birth mother and the amount of time she has to reverse her decision. Some states are more favorable to adoptive parents than others. A legal professional well versed in interstate adoption is necessary to navigate interstate adoption.