HOMOSEXUAL ADOPTIONS

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The desire to become a parent and raise a child is perhaps as prevalent among lesbian and gay men as it is among heterosexuals. The reasons for wanting a child are also just as complex. Some believe that having a child ensures their immortality; others wish to gratify their parents' insistence on grandchildren; still others feel the basic human urge to parent and nurture. For many lesbian women and gay men, however, the only undesired consequence of their sexual orientation is the inability to have a child with the person they love. One solution to this problem has been adoption. However, the jurisdictions granting homosexual adoptions have been few and far between. This in part, has been due to the law's reluctance to keep pace with and face the realities of evolving social patterns in which gay and lesbians live together as life partners and subsequently choose to raise a family in the same manner as heterosexuals. These relationships are not, however, viewed by the law as constituting the "traditional" family.

This lag may stem from the feeling, by many of those in opposition to "alternative" families, that the "traditional nuclear" family forms the bedrock of society. Some people believe that the nuclear family is the only domestic relation unit or that it alone is the only uniquely situated to transmit society's most important values, while new types of loving relationships are seen as a threat to the very order of things. The problem with this objection is that it ignores the negative attributes of nuclear families and the positive characteristics of alternative families. "Close scrutiny of same-sex couples by the courts, however, would reveal that these alternative family arrangements preserve traditional family qualities, values, stability, commitment, affection and support, as well."(Bartlett, 87) When a household becomes the functional equivalent of a family, the law should not treat it any differently than the "traditional" family (88). There is still, evidence that courts and social commentators are beginning to extend token recognition to diversity, alternative lifestyles and the movement of the family away from the traditional nuclear model.

Courts currently do not recognize that the realities of a child's life do not depend upon legal rules. Their lives are more complex that than the one-mother/one-father model suggests. Variation from the one-mother/one-father prescription for parenthood is common (). Communal child rearing, surrogacy, open adoption stepfamilies, and extramarital births all destroy the myth of family homogeneity.

In the American legal system, the solution to the inconsistencies and uncertainties lays within the law. One solution consistently proposed by commentators is the need for the legislature to develop an expand legal definition of "parent."(5) It is felt that lesbian-mother and gay-father families, if not considered "nontraditional families" are ill served by rigid definitions of parenthood. "Current theories underlying the legal definition of parent, wholly deny the existence of nontraditional families"(Melton 10)

For example, the first theory is that every child should have one mother and one father, neither more nor less; the second theory is that those two persons identified as mother and father should have all the rights and responsibilities of parenthood, while non-parents should have little or none.

These statutory limitations lead to an unfair result when a same-sex couple mutually decide to raise a family together prior to the birth of any children and after a child is born by one, if they wish the other to legally adopt that child. Under this new definition of "parent," all those considered parents would be accorded the rights and responsibilities of parenthood, while none will be accorded on those who do not meet this definition (11). In addition, commentators propose that the concept of parenthood would be a status available to individuals regardless of their gender.

A recent state court decision, which accurately illustrates the weaknesses in current domestic relations law regarding the definition of "parent", is Allison D. v. Virginia M. (6). Allison and Virginia were in a committed lesbian relationship and began living together in 178. They decided to have children and function as co-parents, sharing all rights and responsibilities. Virginia was artificially inseminated by semen of an unknown donor. In 181, Virginia gave birth to a son named A.D.M to include the surnames of both women. Before, during, and after the pregnancy, the petitioner and respondent shared the household and the child support expenses. In November of 18, when the child was almost two-and-one-half years old, the parties separated. The two worked out a visitation plan and it went on for years until Virginia started to limit Alison's visits and subsequently terminated all contact between the child and Alison. Alison claimed in her petition seeking visitation rights that she stood " in loco parentis" to the child and therefore must be considered a "parent" within the meaning of Domestic Relations Law section 70 (). Relying on case law, the Supreme Court dismissed the action and refused to define "parent" in Domestic Relations Law 70 to include, someone standing "in loco parentis". In the court's opinion, "the biological parent of a child is the parent within the meaning of statute; the court declines to adopt the definition of parent as someone taking standing in loco parentis" (101). As a result, the court preserved the bonds of parenthood with Virginia, the biological mother, because they considered it critical to the child's well-being to protect the child from the traumatic and painful loss of a parent and did not find any "extraordinary" circumstances to grant visitation rights to petitioner where the child was properly in the custody of his mother (101).

In light of the dissent's view, courts or legislatures looking for guidance in developing a new definition of parenthood would best serve the interest of children by focusing on two criteria the legally unrelated adult's performance of parenting functions and the child's view of that adult as a parent.

In resolving the law's failure to recognize the reality of today's family formations and definition of "parent," commentators have further recommended that the legislature enact a "second-parent" adoption statute (Bowman and Cornish 5). Second-parent adoption is a particularly promising alternative because it allows same-sex couples to avoid the restrictions in current state adoption statutes, which provide that one cannot adopt a child unless either the natural parent waives all parental rights or the adoption stepparent is married to the legal parent (5). Specifically, enactment of a second-parent adoption order would provide a legitimate method for partners in same-sex couples to adopt each other's children without requiring the biological or adoptive parent to give up their parental rights. As such, this statutory modification would place lesbian and gay partners on equal footing with heterosexual natural or adoptive parents, by providing them with equal access to judicial system as well as equal rights to custody of and visitation with their children (55). Meanwhile, courts may believe that by granting sole parental rights to the biological parent in a lesbian-mother or gay-father family, they are discouraging the formation of these families. However, this cause-and-effect relationship does not exist. The formation of lesbian-mother families, as well as gay-father families, will continue, regardless of whether courts and legislatures recognize nonbiological mothers or fathers as equitable parents. The sole question is whether the judicial system will remain true to its stated goal of protection the "best interest of all children" by acknowledging the realities of life in gay and lesbian families and according those families' children all the rights and privileges that have been found to be in the best interest of all children. Currently, the law's unwillingness in some jurisdictions, to recognize and preserve parent-child relationships in nontraditional families sacrifices the best interests of the children in those families (61).

Furthermore, there is no evidence to suggest that the psychological health and emotional well-being of children raised in gay or lesbian households is comprised in any way. Research now existing on the psychological well-being of children raised in such families point to two conclusions (1) little difference exists in the overall mental health of children raised in homosexual households; and () the quality of parenting, not the parents sexual orientation, is the most crucial factor for a child's healthy growth and development (65). Arguably, assertions from the law or otherwise, that the emotional and psychological health of a child who is raised in a homosexual environment are adversely affected, is clearly mistaken.

In conclusion, it is cause for hopefulness that courts, legislatures, and scholars are struggling to devise new doctrines to address the needs of children in families that do not fit the one mother/one father model. The courts now realize that if children can adjust to stepfathers, adoptive fathers, live-in fathers, intermittent fathers and absent fathers, they can adjust to two fathers or two mothers. Thus, as more and more parents are revealing their sexual orientation, it is necessary to eliminate the antiquated stereotypes, fears, taboos and misconceptions that permeate custody and adoption proceeding involving gay and lesbian parents. Instead, homosexual couples must be viewed as having a relationship capable of legal recognition with concomitant legal rights and principles. Once it is recognized that these couples' family interest are essentially identical to those of heterosexual couples, denial of legal protections and rights become objectionable.

BIBLIOGRAPHY

1. Bartlett, Katherine. Rethinking Parenthood as an Exclusive Status. Baltimore Harper, 1-15

. Melton, Rebecca. Legal Rights of Unmarried Heterosexual Couples.

Minneapolis U of Minnesota 10-11

. Bowman, Craig and Blake Cornish. A More Perfect Union. Chicago

Harmondsworth, 1

HOMOSEXUAL ADOPTIONS

BY

SHEREE GARDNER

ENGLISH COMPOSITION 106

April 0, 001

The desire to become a parent and raise a child is perhaps as prevalent among lesbian and gay men as it is among heterosexuals. The reasons for wanting a child are also just as complex. Some believe that having a child ensures their immortality; others wish to gratify their parents' insistence on grandchildren; still others feel the basic human urge to parent and nurture. For many lesbian women and gay men, however, the only undesired consequence of their sexual orientation is the inability to have a child with the person they love. One solution to this problem has been adoption. However, the jurisdictions granting homosexual adoptions have been few and far between. This in part, has been due to the law's reluctance to keep pace with and face the realities of evolving social patterns in which gay and lesbians live together as life partners and subsequently choose to raise a family in the same manner as heterosexuals. These relationships are not, however, viewed by the law as constituting the "traditional" family.

This lag may stem from the feeling, by many of those in opposition to "alternative" families, that the "traditional nuclear" family forms the bedrock of society. Some people believe that the nuclear family is the only domestic relation unit or that it alone is the only uniquely situated to transmit society's most important values, while new types of loving relationships are seen as a threat to the very order of things. The problem with this objection is that it ignores the negative attributes of nuclear families and the positive characteristics of alternative families. "Close scrutiny of same-sex couples by the courts, however, would reveal that these alternative family arrangements preserve traditional family qualities, values, stability, commitment, affection and support, as well."(Bartlett, 87) When a household becomes the functional equivalent of a family, the law should not treat it any differently than the "traditional" family (88). There is still, evidence that courts and social commentators are beginning to extend token recognition to diversity, alternative lifestyles and the movement of the family away from the traditional nuclear model.

Courts currently do not recognize that the realities of a child's life do not depend upon legal rules. Their lives are more complex that than the one-mother/one-father model suggests. Variation from the one-mother/one-father prescription for parenthood is common (). Communal child rearing, surrogacy, open adoption stepfamilies, and extramarital births all destroy the myth of family homogeneity.

In the American legal system, the solution to the inconsistencies and uncertainties lays within the law. One solution consistently proposed by commentators is the need for the legislature to develop an expand legal definition of "parent."(5) It is felt that lesbian-mother and gay-father families, if not considered "nontraditional families" are ill served by rigid definitions of parenthood. "Current theories underlying the legal definition of parent, wholly deny the existence of nontraditional families"(Melton 10)

For example, the first theory is that every child should have one mother and one father, neither more nor less; the second theory is that those two persons identified as mother and father should have all the rights and responsibilities of parenthood, while non-parents should have little or none.

These statutory limitations lead to an unfair result when a same-sex couple mutually decide to raise a family together prior to the birth of any children and after a child is born by one, if they wish the other to legally adopt that child. Under this new definition of "parent," all those considered parents would be accorded the rights and responsibilities of parenthood, while none will be accorded on those who do not meet this definition (11). In addition, commentators propose that the concept of parenthood would be a status available to individuals regardless of their gender.

A recent state court decision, which accurately illustrates the weaknesses in current domestic relations law regarding the definition of "parent", is Allison D. v. Virginia M. (6). Allison and Virginia were in a committed lesbian relationship and began living together in 178. They decided to have children and function as co-parents, sharing all rights and responsibilities. Virginia was artificially inseminated by semen of an unknown donor. In 181, Virginia gave birth to a son named A.D.M to include the surnames of both women. Before, during, and after the pregnancy, the petitioner and respondent shared the household and the child support expenses. In November of 18, when the child was almost two-and-one-half years old, the parties separated. The two worked out a visitation plan and it went on for years until Virginia started to limit Alison's visits and subsequently terminated all contact between the child and Alison. Alison claimed in her petition seeking visitation rights that she stood " in loco parentis" to the child and therefore must be considered a "parent" within the meaning of Domestic Relations Law section 70 (). Relying on case law, the Supreme Court dismissed the action and refused to define "parent" in Domestic Relations Law 70 to include, someone standing "in loco parentis". In the court's opinion, "the biological parent of a child is the parent within the meaning of statute; the court declines to adopt the definition of parent as someone taking standing in loco parentis" (101). As a result, the court preserved the bonds of parenthood with Virginia, the biological mother, because they considered it critical to the child's well-being to protect the child from the traumatic and painful loss of a parent and did not find any "extraordinary" circumstances to grant visitation rights to petitioner where the child was properly in the custody of his mother (101).

In light of the dissent's view, courts or legislatures looking for guidance in developing a new definition of parenthood would best serve the interest of children by focusing on two criteria the legally unrelated adult's performance of parenting functions and the child's view of that adult as a parent.

In resolving the law's failure to recognize the reality of today's family formations and definition of "parent," commentators have further recommended that the legislature enact a "second-parent" adoption statute (Bowman and Cornish 5). Second-parent adoption is a particularly promising alternative because it allows same-sex couples to avoid the restrictions in current state adoption statutes, which provide that one cannot adopt a child unless either the natural parent waives all parental rights or the adoption stepparent is married to the legal parent (5). Specifically, enactment of a second-parent adoption order would provide a legitimate method for partners in same-sex couples to adopt each other's children without requiring the biological or adoptive parent to give up their parental rights. As such, this statutory modification would place lesbian and gay partners on equal footing with heterosexual natural or adoptive parents, by providing them with equal access to judicial system as well as equal rights to custody of and visitation with their children (55). Meanwhile, courts may believe that by granting sole parental rights to the biological parent in a lesbian-mother or gay-father family, they are discouraging the formation of these families. However, this cause-and-effect relationship does not exist. The formation of lesbian-mother families, as well as gay-father families, will continue, regardless of whether courts and legislatures recognize nonbiological mothers or fathers as equitable parents. The sole question is whether the judicial system will remain true to its stated goal of protection the "best interest of all children" by acknowledging the realities of life in gay and lesbian families and according those families' children all the rights and privileges that have been found to be in the best interest of all children. Currently, the law's unwillingness in some jurisdictions, to recognize and preserve parent-child relationships in nontraditional families sacrifices the best interests of the children in those families (61).

Furthermore, there is no evidence to suggest that the psychological health and emotional well-being of children raised in gay or lesbian households is comprised in any way. Research now existing on the psychological well-being of children raised in such families point to two conclusions (1) little difference exists in the overall mental health of children raised in homosexual households; and () the quality of parenting, not the parents sexual orientation, is the most crucial factor for a child's healthy growth and development (65). Arguably, assertions from the law or otherwise, that the emotional and psychological health of a child who is raised in a homosexual environment are adversely affected, is clearly mistaken.

In conclusion, it is cause for hopefulness that courts, legislatures, and scholars are struggling to devise new doctrines to address the needs of children in families that do not fit the one mother/one father model. The courts now realize that if children can adjust to stepfathers, adoptive fathers, live-in fathers, intermittent fathers and absent fathers, they can adjust to two fathers or two mothers. Thus, as more and more parents are revealing their sexual orientation, it is necessary to eliminate the antiquated stereotypes, fears, taboos and misconceptions that permeate custody and adoption proceeding involving gay and lesbian parents. Instead, homosexual couples must be viewed as having a relationship capable of legal recognition with concomitant legal rights and principles. Once it is recognized that these couples' family interest are essentially identical to those of heterosexual couples, denial of legal protections and rights become objectionable.

BIBLIOGRAPHY

1. Bartlett, Katherine. Rethinking Parenthood as an Exclusive Status. Baltimore Harper, 1-15

. Melton, Rebecca. Legal Rights of Unmarried Heterosexual Couples.

Minneapolis U of Minnesota 10-11

. Bowman, Craig and Blake Cornish. A More Perfect Union. Chicago

Harmondsworth, 1

BIBLIOGRAPHY

1. Bartlett, Katherine. Rethinking Parenthood as an Exclusive Status. Baltimore Harper, 1-15

. Melton, Rebecca. Legal Rights of Unmarried Heterosexual Couples.

Minneapolis U of Minnesota 10-11

. Bowman, Craig and Blake Cornish. A More Perfect Union. Chicago

Harmondsworth, 1

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