This summer we witnessed history in the making as on June 24, 2011 the New York State Legislature passed the Marriage Equality Act, legalizing same-sex marriage in the state of NY. The new law provides same-sex married couples with the same benefits as opposite-sex couples, such as eligibility for health insurance coverage, hospital visitations, inheritance laws, children having two legal parents, and etc. Without a doubt, for the New York LGBT community, the new law is one more victory in a fight for equality. However, since the laws nationwide provide a very disparate treatment when it comes to things such as, for instance, adoption, the fight for equality is far from over.
When an opposite-sex married couple decides to adopt a child, this couple can choose a baby from any of the fifty states. In fact, practically all states require for opposite-sex married couples to file a joint petition. Conversely, when a same-sex married (or unmarried) couple decides to adopt a child, they do not have the same luxury. Although states prohibiting adoption by same-sex couples do not expressly state such prohibition, it can, nevertheless, be inferred from their expressly stated prohibitions.
For instance, under Wisconsin Statute §48.82, an unmarried couple cannot adopt jointly. At the same time, under Wisconsin Statute §765.001(2), same-sex couples cannot marry. Furthermore, even if one partner in the couple adopts a baby, a second-parent adoption is prohibited in WI pursuant to the 1994 case, Angel Lace M. (516 N.W.2d 678). Given this hostile statutory and case law, the chances of a Wisconsin judge consenting to a voluntary termination of parental rights when the adoptive parents are a same-sex married couple are slim to none.
Similarly, in the State of Utah, pursuant to Utah Code §78-30-1(3)(b), “a child may not be adopted by a person who is cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state.” Coincidentally (or not), in 2004, the state of Utah passed a constitutional amendment banning same-sex marriage.
Therefore, New York same-sex couples who are rejoicing at their new right to marry are still far from being equal. Such newly married couple that decides to adopt a baby is limited to the following options – adopting jointly only from a state that allows joint adoption by a same-sex couple or having one of the partners adopt individually from any state and then doing a second-partner adoption in New York. Not so equal after all…