Adoption should be about the best interests of the children involved, not the marital status, gender, or sexual orientation of the parents. A number of recent rulings and pending cases show how wrong courts can be when they stray from this basic principle.
I wrote extensively about X. and others v. Austria, when it was argued last fall in the European Court of Human Rights. Austria allows a second-parent adoption by a mother's male, unmarried partner, but not by a mother's female partner. Last month, the ECHR ruled in favor of the plaintiffs. The Court found that it was unlawful discrimination on the basis of sexual orientation. This is the good news.
The bad news is the ECHR's previous ruling against the lesbian couple in Gas and DuBois v. France. France does not allow any unmarried partner to adopt. Gas and DuBois were unable to complete a second parent adoption because they were not married; an unmarried different-sex couple would also be unable to do a second-parent adoption in France. This is because, like some American states, the adoption by the nonbiological mother or father would automatically cut off the rights of the biological mother, unless the couple was married. The ECHR said that this was not discrimination on the basis of sexual orientation because the rule applied to same-sex and different-sex couples. The ECHR further said, essentially, that marriage is special and there is no discrimination if a country treats married couples differently from unmarried couples. In X and others v. Austria, the ECHR reiterated that a country need not allow any unmarried partner to adopt.
Last month, the Puerto Rico Supreme Court ruled that it was not unconstitutional to deny a second parent adoption to a lesbian couple. News reports leave it at that, but I discovered today, reading an English translation of the opinion, that Puerto Rico does allow a man who is not married to a mother to adopt her child without terminating her parental rights. Specifically, the statute says that a single parent's rights are not terminated by an adoption of the child by someone of a different sex. The court said this was not sex discrimination because it applies equally to men and women. In other words, a man would not be able to adopt a child of his male partner. (Really.) With the moral force of the ECHR ruling in X and others v. Austria, and the powerful anti-discrimination norm articulated by the Inter-American Court of Human Rights last year in Atala v. Chile, this case should go next to the Inter-American Commission on Human Rights (the first step to the Court). The mothers' lawyers have filed for reconsideration. Perhaps they will head to the Inter-American Commission next.
Finally, the conflation of adoption and marriage is showing up tomorrow in Detroit when Federal District Court Judge Bernard Friedman hears argument in the case of April DeBoer and Jayne Rowse, who last year challenged the constitutionality of denying them the ability to complete second-parent adoptions of their three children in Michigan. At an initial hearing on the case last year, Judge Friedman suggested the underlying problem was the state's ban on same-sex marriage and invited the couple to challenge that ban, which they did. The state's motion to dismiss will be heard tomorrow.
But the problem is not the marriage ban. Adoptions are evaluated individually based on the best interests of the children. Requiring a couple to marry in order to both be parents of a child they are raising together is bad law and bad policy. If a child has two functional parents, nothing should stand in the way of a court finding that they can both be legal parents through adoption. When the highest court in New York approved second parent adoptions close to two decades ago, the challengers were both a lesbian couple and an unmarried different-sex couple. Lambda Legal reprsented both couples. Judge Friedman should not have turned the case into a case about marriage. And the couple and their lawyer should have insisted that is not what it's about. (In contrast, the ACLU, in Fisher-Borne v. Smith, is challenging the constitutionality of North Carolina's ban on second-parent adoption as a matter rightly distinct from the state's ban on same-sex marriage.)