LEGAL PROTECTION FOR ALL THE CHILDREN: DUTCH-AMERICAN COMIPARISON OF LESBIAN AND GAY PARENT ADOPTIONS Nancy g. Maxwell, Astrid A M. Mattijssen, and Charlene Smith Abstract The purpose of this is to examine the recent developments concerning same-gender parent adoptions in the Ur tates and the Netherlands, comparing the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States, where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents=or as >strangers=of the child. The section also includes an analysis of the recent Dutch case before the highest court in the Netherlands, the Hoge Raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, includ ing present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gend couples, and homosexuals in general, to adopt. The article then concludes with a comparison and This section examines the differences in the two countries= legal systems, the social statuson ns analysis of the dutch and al gal histories concerning same-gender co-parent adoptio homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender co- parent adoption is in the best interest of the children raised by same-gender couples Professor Nancy G. Maxwell is a Professor of Law at Washburn University School of Law Topeka, Kansas. She has co-taught comparative family law materials with Astrid Mattijssen for the for the Comparative Family Law class for Washburn Law School=s London Summer School Progan o comparative human rights courses at Washburn Law School, as well as teaching the American materia Astrid A.M. Mattijssen co-authored this article while she was a member of the legal staff of the Clara Wichmann Institute. the academic institute for women and law in the Netherlands. from 1992-98 She also served as a member of the State Committee on Opening-up Civil Marriage for Same-Sex Couples, known as the Kortmann Committee, in 1996-97. Since September 1998, she has been a legal staff member for the Dutch General Prosecutor, where she is responsible for the Expertise Centre on Discrimination ofessor Charlene Smith is a Professor of Law at Washburn University School of Law, Topeka Kansas. Professor Smith and Astrid Mattijssen have coordinated several comparative human rights classes regarding sexual orientation at Washburn Law School. They have also presented materials on discrimination against queers at the International Lesbian and Gay Association (ILGA) conferences and the 1998 Conference on Trade Unions, Homosexuality, and Work in Amsterdam The authors wish to thank Ineke de hondt. associate professor of private law. Utrecht University, The Netherlands, and Kees Waaldijk, Lecturer in Law, Leiden University, The Netherlands for their thoughtful advice during the writing of this article, as well as Annelies Henstra, PhD Student, Utrecht University, The Netherlands, and Scott Curry, attorney at law, Wichita, Kansas, USA, for their research assistance
LEGAL PROTECTION FOR ALL THE CHILDREN: DUTCH-AMERICAN COMPARISON OF LESBIAN AND GAY PARENT ADOPTIONS Nancy G. Maxwell, Astrid A.M. Mattijssen, and Charlene Smith1 Abstract The purpose of this article is to examine the recent developments concerning same-gender parent adoptions in the Unites States and the Netherlands, comparing the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States, where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents= or as >strangers= of the child. The section also includes an analysis of the recent Dutch case before the highest court in the Netherlands, the Hoge Raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, including present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gender couples, and homosexuals in general, to adopt. The article then concludes with a comparison and analysis of the Dutch and American legal histories concerning same-gender co-parent adoptions. This section examines the differences in the two countries= legal systems, the social status of homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender coparent adoption is in the best interest of the children raised by same-gender couples. 1 Professor Nancy G. Maxwell is a Professor of Law at Washburn University School of Law, Topeka, Kansas. She has co-taught comparative family law materials with Astrid Mattijssen for the comparative human rights courses at Washburn Law School, as well as teaching the American materials for the Comparative Family Law class for Washburn Law School=s London Summer School Program. Astrid A.M. Mattijssen co-authored this article while she was a member of the legal staff of the Clara Wichmann Institute, the academic institute for women and law in the Netherlands, from 1992-98. She also served as a member of the State Committee on Opening-up Civil Marriage for Same-Sex Couples, known as the Kortmann Committee, in 1996-97. Since September 1998, she has been a legal staff member for the Dutch General Prosecutor, where she is responsible for the Expertise Centre on Discrimination. Professor Charlene Smith is a Professor of Law at Washburn University School of Law, Topeka, Kansas. Professor Smith and Astrid Mattijssen have coordinated several comparative human rights classes regarding sexual orientation at Washburn Law School. They have also presented materials on discrimination against queers at the International Lesbian and Gay Association (ILGA) conferences and the 1998 Conference on Trade Unions, Homosexuality, and Work in Amsterdam. The authors wish to thank Ineke de Hondt, Associate Professor of Private Law, Utrecht University, The Netherlands, and Kees Waaldijk, Lecturer in Law, Leiden University, The Netherlands, for their thoughtful advice during the writing of this article, as well as Annelies Henstra, PhD Student, Utrecht University, The Netherlands, and Scott Curry, attorney at law, Wichita, Kansas, USA, for their research assistance
1. Introductio 2. Case law 2.1 American case law 2. 1. 1 Co-parent adoptions 2. 1.2 Stranger adopt 2.2 Dutch case Ian 3. Current status of Dutch legislation 3. Ad e 3.2 Joint parental authority 3.3 Reg 4. Proposed legislation concerning same-gender co-parent adoptions 4. 1 Dutch legislative proposal- Allowing same-gender co-parent adoptions 4. 2 American legislative proposals- Anti-homosexual backlash 5. Comparison and analysis of the Dutch and American legal history concerning same-gender co- parent adoptions 5.1 Differences in legal systems 5.2 Differences in the social status of homosexuals 5.3 Differences in the social status of adoption 5. 4 Differences in the underlying assumptions about family lany 6. Conclusion Append ix: Homosexual and Same-Gender Parent Adoption Articles 1. Introduction The lesbian baby boom made the front cover of the November 1996 Newsweek, which is widely distributed in both the Netherlands and the United States. Estimates are that 20.000 children are being reared in Dutch lesbian and gay families. The number in the United States varies from 1.5 to 5 million depending on which study is consulted. 4 The parents of these children nurture Barbara Kantrowitz, Gay Families Come Out, NEWSWEEK, Nov, 4, 1996, at 50 American >estimates range from 6 million to 14 million children with at least one gay parent. Adoption agencies report more and more inquiries from prospective parents-especially men-who identify themselves as gay, and sperm banks say they=re in the midst of what some call a Agayby boom@ propelled by lesbians. ld Rock star Melissa Etheridge made headlines when she announced that she and declined to reveal how the baby was conceived. Etheridge plans on adopting the baby after the bih a her long-time domestic partner, Julie Cypher, were going to have a baby. Etheridge and Cypher hay Mark miller, We=re a Family and We Have Rights, NEWS WEEK, Nov. 4, 1996, at 54 Hans Warmerdam and Annemies gort. MEER DAN GEWENST: HANDBOEK VOOR LESBISCHE EN HOMOSEKSUELE OUDERS(Amsterdam: Schorer, 1996) Garry Cooper, Network Briefs, FAM. THERAPY NETWORKER, July/Aug. 1997, at 15
Contents 1. Introduction 2. Case law 2.1 American case law 2.1.1 Co-parent adoptions 2.1.2 Stranger adoptions 2.2 Dutch case law 3. Current status of Dutch legislation 3.1 Adoption laws 3.2 Joint parental authority 3.3 Registered partnerships 4. Proposed legislation concerning same-gender co-parent adoptions 4.1 Dutch legislative proposal - Allowing same-gender co-parent adoptions 4.2 American legislative proposals – Anti-homosexual backlash 5. Comparison and analysis of the Dutch and American legal history concerning same-gender coparent adoptions 5.1 Differences in legal systems 5.2 Differences in the social status of homosexuals 5.3 Differences in the social status of adoption 5.4 Differences in the underlying assumptions about family law 6. Conclusion Appendix: Homosexual and Same-Gender Parent Adoption Articles 1. Introduction The lesbian baby boom made the front cover of the November 1996 Newsweek, 2 which is widely distributed in both the Netherlands and the United States. Estimates are that 20,000 children are being reared in Dutch lesbian and gay families.3 The number in the United States varies from 1.5 to 5 million depending on which study is consulted.4 The parents of these children nurture, 2 Barbara Kantrowitz, Gay Families Come Out, NEWSWEEK, Nov. 4, 1996, at 50. American >[e]stimates range from 6 million to 14 million children with at least one gay parent. Adoption agencies report more and more inquiries from prospective parents - especially men - who identify themselves as gay, and sperm banks say they=re in the midst of what some call a Agayby boom@ propelled by lesbians.= Id. Rock star Melissa Etheridge made headlines when she announced that she and her long-time domestic partner, Julie Cypher, were going to have a baby. Etheridge and Cypher have declined to reveal how the baby was conceived. Etheridge plans on adopting the baby after the birth. Mark Miller, We=re a Family and We Have Rights, NEWSWEEK, Nov. 4, 1996, at 54. 3 Hans Warmerdam and Annemies Gort, MEER DAN GEWENST: HANDBOEK VOOR LESBISCHE EN HOMOSEKSUELE OUDERS (Amsterdam: Schorer, 1996). 4 Garry Cooper, Network Briefs, FAM. THERAPY NETWORKER, July/Aug. 1997, at 15
ducate, pamper and generally raise them in the same ways heterosexual parents raise thei children. Even though children in same-gender relationships are reared by two loving parents, for most of these couples the nonbiological parent does not have the same legal options to establish the rights and responsibilities that heterosexual couples have in relation to the children they are raising. However, recent developments in both the United States and the Netherland have begun to change the precarious legal status of the nonbiological parent in these families The policies of both the Netherlands and the United States recognize that, if possible, it is best to have two parents in the household. For instance, if a parent dies and the remaining parent remarries, the adoption legislation in both countries makes it possible for the stepparent to adopt a child born of the previous union. In addition to the stepparent situation, it is the general policy in the United States that adoption is preferable either to institutionalization or foster care. On the other hand, in other than the stepparent context, adoption in the Netherlands has not been a A Breweays, DONOR INSEMINATION: FAMILY RELATIONSHIPS AND CHILD DEVELOPMENT IN LESBIAN AND HETEROSEXUAL FAMILIES (Leiden: Rijksuniversiteit Leiden, 1997)(in which the book=s general conclusion states that lesbian families do not raise their children differently from heterosexual families). Recently, at the Society for Research and Development on Child Development, papers were presented on studies of children in lesbian and non-lesbian homes. The studies were done in the U. S Britain, and the Netherlands. The findings showed there were no significant differences except in one aspect:>..90 percent of the lesbian coparents took an active role in raising the children, while onl bout 37 percent of the heterosexual fathers did the same. Cooper, supra note 4 For example, in cases of stepparent adoptions, the judge has the authority to waive certain statutory requirements, such as a social worker=s report on the appropriateness of the adoptive home. See MASS. ANN. LAwS ch 210, 5A(Law. Co-op. 1994). In other states, these reports may not be required at all in stepparent adoptions. See ARK. CODE ANN. 9-9-212(c)(Michie 1993): IND CODE ANN. 31-19-7 I Sec. 1 (West Supp. 1997); KAN. STAT. ANN. 59-2132(h)(1994); MONT. CODE ANN. 40-8-122(1) (1995),ND.CENT.CODE'14-15-11(5)(1991) Between 1980 and 1990, stepparent adoptions of Dutch children have more than tripled, from 105 in 1980 to 357 in 1990. Nora Holtrust. AAN MOEDERS KNIE. DE JURIDISCHE AFSTAMMINGSRELATIE TUSSEN MOEDER EN KIND(Nijmegen: Ars Aequi Libri, 1993), at p. 191 and pp 205-10 For instance, in Alabama, subsidies are given after an adoption, ALA. CODE26-10-25(1992): Florida says in its statute that >It]he Legislature finds that 7 out of 10 children placed in foster care do not return to their biological families after the first year and that permanent homes could be found for many of these children if their status were reviewed periodically .. = FLA STAT. ANN. 39.45(1)(West 1988) Maryland states that one of its goals is to >encourage efforts at adoption of the child, MD. CODE ANN FAM. LAW 5-544(1991); the Nebraska legislature states that >[t]he Legislature finds that there are children in temporary foster care situations who would benefit from the stability of adoption, = NEB. REV STAT. 43-155(1993): Nevada is particularly concerned about special-needs children and states that it has a >fundamental interest in promoting adoption for children with special needs because the care, emotional stability, and general support and encouragement required by such children can be best, and often only obtained in family homes with a normal parent-child relationship, NEV. REV. STAT. 127. 410, Art. I (b) (1995) See the new Dutch adoption laws, Stb. 1997, 772, Art. 227-232 Bw(1997)(allowing both unmarried heterosexual couples and single persons to adopt)
educate, pamper and generally raise them in the same ways heterosexual parents raise their children.5 Even though children in same-gender relationships are reared by two loving parents, for most of these couples the nonbiological parent does not have the same legal options to establish the rights and responsibilities that heterosexual couples have in relation to the children they are raising. However, recent developments in both the United States and the Netherlands have begun to change the precarious legal status of the nonbiological parent in these families. The policies of both the Netherlands and the United States recognize that, if possible, it is best to have two parents in the household.6 For instance, if a parent dies and the remaining parent remarries, the adoption legislation in both countries makes it possible for the stepparent to adopt a child born of the previous union.7 In addition to the stepparent situation, it is the general policy in the United States that adoption is preferable either to institutionalization or foster care.8 On the other hand, in other than the stepparent context, adoption in the Netherlands has not been a 5 A. Breweays, DONOR INSEMINATION: FAMILY RELATIONSHIPS AND CHILD DEVELOPMENT IN LESBIAN AND HETEROSEXUAL FAMILIES (Leiden: Rijksuniversiteit Leiden, 1997) (in which the book=s general conclusion states that lesbian families do not raise their children differently from heterosexual families). Recently, at the Society for Research and Development on Child Development, papers were presented on studies of children in lesbian and non-lesbian homes. The studies were done in the U.S., Britain, and the Netherlands. The findings showed there were no significant differences except in one aspect: >. . . 90 percent of the lesbian coparents took an active role in raising the children, while only about 37 percent of the heterosexual fathers did the same.= Cooper, supra note 4. 6 For example, in cases of stepparent adoptions, the judge has the authority to waive certain statutory requirements, such as a social worker=s report on the appropriateness of the adoptive home. See MASS. ANN. LAWS ch. 210, ' 5A (Law. Co-op. 1994). In other states, these reports may not be required at all in stepparent adoptions. See ARK. CODE ANN. ' 9-9-212(c) (Michie 1993); IND. CODE ANN. ' 31-19-7- 1 Sec. 1 (West Supp. 1997); KAN. STAT. ANN.' 59-2132(h) (1994); MONT. CODE ANN. ' 40-8-122(1) (1995); N.D. CENT. CODE ' 14-15-11(5) (1991). 7 Between 1980 and 1990, stepparent adoptions of Dutch children have more than tripled, from 105 in 1980 to 357 in 1990. Nora Holtrust, AAN MOEDERS KNIE: DE JURIDISCHE AFSTAMMINGSRELATIE TUSSEN MOEDER EN KIND (Nijmegen: Ars Aequi Libri, 1993), at p. 191 and pp. 205-10. 8 For instance, in Alabama, subsidies are given after an adoption, ALA. CODE ' 26-10-25 (1992); Florida says in its statute that >[t]he Legislature finds that 7 out of 10 children placed in foster care do not return to their biological families after the first year and that permanent homes could be found for many of these children if their status were reviewed periodically . . .,= FLA. STAT. ANN. ' 39.45(1) (West 1988); Maryland states that one of its goals is to >encourage efforts at adoption of the child,= MD. CODE ANN., FAM. LAW ' 5-544 (1991); the Nebraska legislature states that >[t]he Legislature finds that there are children in temporary foster care situations who would benefit from the stability of adoption,= NEB. REV. STAT. ' 43-155 (1993); Nevada is particularly concerned about special-needs children and states that it has a >fundamental interest in promoting adoption for children with special needs because the care, emotional stability, and general support and encouragement required by such children can be best, and often only, obtained in family homes with a normal parent-child relationship,= NEV. REV. STAT. ' 127.410, Art. 1(b) (1995). See the new Dutch adoption laws, Stb. 1997, 772, Art. 227-232 BW (1997) (allowing both unmarried heterosexual couples and single persons to adopt)
widely accepted legal solution for children whose parents are unable, or unwilling, to care for them. In fact, it has only been in 1997 that the Dutch legislat ure extended adoption rights to persons other than married couples; in April of 1998, single persons and unmarried heterosexual couples were allowed to adopt for the first time in modern Dutch history. While both the Netherlands and the United States have policies allowing stepparent adoptions, legal obstacles have existed in both countries if the adoption petitioners were lesbians or gay men, even if these individuals were the de facto parents of the children they sought to adopt. However, recent court decisions in several of the United States have granted same-gender parent adoptions, and a legislative proposal in the Netherlands would allow same-gender couples to adopt, jointly, the children they have been raising together The purpose of this article is to examine these recent changes and compare the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents= or as >strangers=*of the child. The section also includes an analysis of the In the United States, there are over 100,000 children who are eligible for adoption. See Proclamation No. 7145, 3 C.F.R., 1998 Comp., p. 111, 63 Fed. Reg. 59, 203(1998). >Preliminary reports from 42 states for federal fiscal year 1998 project adoptions of at least 36, 000 foster children, which includes increases of 7, 859 over the average number of adoptions from the previous three years. Joe Kroll, 1998 U.S. Adoptions from Foster Care Projected to Exceed 36,000, North American Council on AdoptableChildrenAdoptalk,Winter1999,http://members.aolcom/nacac/1998adoptions.htmlAbout 50 to 100 Dutch children are available for adoption each year. DE GROTE ALMANAK VOORINFORMATIE EN ADVIES (Utrecht: NIZW, 1997), at 525; Kamerstukken 11994/95, 22700, nr 5, p. 13. In 1996, 704 foreign-born children were adopted by Dutch citizens; in 1995, there were 661; and in 1994, only 594 Persbericht Ministerie van Justitie. 13 maart 1997 Wet van 24 december 1997 tot herziening van het afstammingsrecht alsmede van de regeling van adoptie,SYb.1997,772,Art.227232BW(1997) n The persons adopting must be 18 years older than the child, and the parents(the legal parents, not a donor or biological father who has not recognized the child) must consent to the adoption request; Stb 997, 772, Art. 228 lid I sub c and d Bw(1997). The criteria for adoptions by couples require that the couples have cohabited for three continuous years before the adoption request and that they have taken care of and brought up the child for at least one year; Stb. 1997, 772, Art. 227 lid 2 BW(1997); Sib. 1997, 772, Art. 228 1 f. BW(1997). A single person must have taken care of and brought up the child for three continuous years before he or she can adopt; Stb. 1997, 772, Art. 228. 1.f. BW(1997) 12 Wijziging van Boek 1 van het Burgerlijk Wetboek(adoptie door personen van hetzelfde geslacht) Kamerstukken 1/1998/99, 26 673, nr 2(voorstel van wet)en nr 3(memorie van toelichting). For an English translation of the text of the bill, see the summary translation by Kees Waaldijk(Leiden University),postedtotheInternetonjUly28,1999,http://www.coc.nl/index.html?file=marriage >Co-parent= adoptions refer to those adoptions in which a person in a same-gender relationship who does not have a legal relationship to the child adopts his or her partner=s child, without severing his or her partner=s parental rights to the child >Stranger= adoptions refer to those adoptions in which neither adoptive parent has a prior legal relationship with the child
widely accepted legal solution for children whose parents are unable, or unwilling, to care for them.9 In fact, it has only been in 1997 that the Dutch legislature extended adoption rights to persons other than married couples;10 in April of 1998, single persons and unmarried heterosexual couples were allowed to adopt for the first time in modern Dutch history.11 While both the Netherlands and the United States have policies allowing stepparent adoptions, legal obstacles have existed in both countries if the adoption petitioners were lesbians or gay men, even if these individuals were the de facto parents of the children they sought to adopt. However, recent court decisions in several of the United States have granted same-gender parent adoptions, and a legislative proposal in the Netherlands12 would allow same-gender couples to adopt, jointly, the children they have been raising together. The purpose of this article is to examine these recent changes and compare the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States, where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents= 13 or as >strangers= 14 of the child. The section also includes an analysis of the 9 In the United States, there are over 100,000 children who are eligible for adoption. See Proclamation No. 7145, 3 C.F.R., 1998 Comp., p. 111, 63 Fed. Reg. 59,203 (1998). >Preliminary reports from 42 states for federal fiscal year 1998 project adoptions of at least 36,000 foster children, which includes increases of 7,859 over the average number of adoptions from the previous three years.= Joe Kroll, 1998 U.S. Adoptions from Foster Care Projected to Exceed 36,000, North American Council on Adoptable Children, Adoptalk, Winter, 1999, http://members.aol.com/nacac/1998_Adoptions.html. About 50 to 100 Dutch children are available for adoption each year. DE GROTE ALMANAK VOOR INFORMATIE EN ADVIES (Utrecht: NIZW, 1997), at 525; Kamerstukken II 1994/95, 22 700, nr. 5, p. 13. In 1996, 704 foreign-born children were adopted by Dutch citizens; in 1995, there were 661; and in 1994, only 594. Persbericht Ministerie van Justitie, 13 maart 1997. 10 Wet van 24 december 1997 tot herziening van het afstammingsrecht alsmede van de regeling van adoptie, Stb. 1997, 772, Art. 227-232 BW (1997). 11 The persons adopting must be 18 years older than the child, and the parents (the legal parents, not a donor or biological father who has not recognized the child) must consent to the adoption request; Stb. 1997, 772, Art. 228 lid 1 sub c and d BW (1997). The criteria for adoptions by couples require that the couples have cohabited for three continuous years before the adoption request and that they have taken care of and brought up the child for at least one year; Stb. 1997, 772, Art. 227 lid 2 BW (1997); Stb. 1997, 772, Art. 228.1.f. BW (1997). A single person must have taken care of and brought up the child for three continuous years before he or she can adopt; Stb. 1997, 772, Art. 228.1.f. BW (1997). 12 Wijziging van Boek 1 van het Burgerlijk Wetboek (adoptie door personen van hetzelfde geslacht), Kamerstukken II 1998/99, 26 673, nr. 2 (voorstel van wet) en nr. 3 (memorie van toelichting). For an English translation of the text of the bill, see the summary translation by Kees Waaldijk (Leiden University), posted to the Internet on July 28, 1999, http://www.coc.nl/index.html?file=marriage 13 >Co-parent= adoptions refer to those adoptions in which a person in a same-gender relationship who does not have a legal relationship to the child adopts his or her partner=s child, without severing his or her partner=s parental rights to the child. 14 >Stranger= adoptions refer to those adoptions in which neither adoptive parent has a prior legal relationship with the child
recent Dutch case before the Hoge raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, including present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gender couple of the Dutch and American legal histories concerning same-gender co-parent adoptions. Thesis and homosexuals in general, to adopt. The article then concludes with a comparison and analysis section examines the differences in the two countries= legal systems, the social status of homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender co- parent adoption is in the best interest of the children raised by same-gender couples 2. Case law 2.1 an case law Many gay men and lesbians have children. Gay men may have children from prior marriages they may find a willing surrogate to carry their child, they may father children born to lesbian friends, or they may adopt a child as a single parent. Lesbians may also have children from previous marriages or they may adopt a child as a single parent; most often, however, lesbian couples decide that one or both of the women will have children by alternative insemination, 6 ither with a known donor or an anonymous donor through the services of a sperm bank. In many of these situations, the co-parent wants to ad opt the children so there is legal protection for the children who are being raised in a two-parent household. 8 homo. There is only one state in the United States that has specific legislation prohibiting sexuals from ad opting children, Florida. 9 In the other 49 states, however, it is possible for Kantrowitz, supra note 2: Warmerdam and Gort, supra note 3 The term >alternative insemination= is used in place of >artificial insemination= because of the connotation of the word >artificial, which implies that the child conceived under this procedure is not real. >Alternative insemination= as used in this article refers to medically assisted alternative insemination as well as self-insemination Craig w. Christensen, Legal Ordering of family Values: The Case of gay and Lesbian Families ZOL.REV.1299,1351(199 See infra notes 25-28 for citations to the American cases. See also the Dutch case HR 5 september 1997, NJ1998, 686, rek nr. 8940 FLA STAT. ANN. 63.042(3)(West 1985). New Hampshire also had a statute prohibiting homosexuals from adopting children, N H. REV. STAT. ANN. 170-B: 4(1994 ). However, on May 3, 1999 the statute was repealed, H B. No. 90, 1999 Sess.(NH 1999). The Florida statutory prohibition may be challengeable under a recent U.S. Supreme Court decision, Romer v. Evans, 517 U.S. 620, 116.Ct. 1620
recent Dutch case before the Hoge Raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, including present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gender couples, and homosexuals in general, to adopt. The article then concludes with a comparison and analysis of the Dutch and American legal histories concerning same-gender co-parent adoptions. This section examines the differences in the two countries= legal systems, the social status of homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender coparent adoption is in the best interest of the children raised by same-gender couples. 2. Case law 2.1 American case law 2.1.1 Co-parent adoptions Many gay men and lesbians have children.15 Gay men may have children from prior marriages, they may find a willing surrogate to carry their child, they may father children born to lesbian friends, or they may adopt a child as a single parent. Lesbians may also have children from previous marriages or they may adopt a child as a single parent; most often, however, lesbian couples decide that one or both of the women will have children by alternative insemination,16 either with a known donor or an anonymous donor through the services of a sperm bank.17 In many of these situations, the co-parent wants to adopt the children so there is legal protection for the children who are being raised in a two-parent household.18 There is only one state in the United States that has specific legislation prohibiting homosexuals from adopting children, Florida.19 In the other 49 states, however, it is possible for 15 Kantrowitz, supra note 2; Warmerdam and Gort, supra note 3. 16 The term >alternative insemination= is used in place of >artificial insemination= because of the connotation of the word >artificial,= which implies that the child conceived under this procedure is not real. >Alternative insemination= as used in this article refers to medically assisted alternative insemination as well as self-insemination. 17 Craig W. Christensen, Legal Ordering of Family Values: The Case of Gay and Lesbian Families, 18 CARDOZO L. REV. 1299, 1351 (1997). 18 See infra notes 25-28 for citations to the American cases. See also the Dutch case HR 5 september 1997, NJ 1998, 686, rek.nr. 8940. 19 FLA. STAT. ANN. ' 63.042(3) (West 1985). New Hampshire also had a statute prohibiting homosexuals from adopting children, N.H. REV. STAT. ANN. ' 170-B:4 (1994). However, on May 3, 1999, the statute was repealed, H.B. No. 90, 1999 Sess. (NH 1999). The Florida statutory prohibition may be challengeable under a recent U.S. Supreme Court decision, Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620
lesbians and gays to file a petition in court requesting to adopt a child, either as a single person seeking to adopt or as joint petitioners seeking to adopt together. The court then must decide whether the petition falls within, or outside, the language of the state=s adoption code Consequently, same-gender co-parent adoption petitions have been attempted in several states in the United States Because there is no specific legislation that authorizes same-gender co-parent adoption in these states, individuals in civil-law countries may assume, incorrectly, that when the state courts issue rulings on same-gender co-parent adoptions, the courts= decisions are not >law. =20 This is a misunderstanding of the status of a court=s decision in the common-law system. When an appellate state court interprets its state=s adoption code concerning whether to allow same gender co-parent adoptions, that interpretation attaches to the adoption code and the court=s interpretation becomes the law of the state. Under the common law, in all subsequent adoption cases, the adoption code must be applied accord ing to the appellate court=s interpretation. It through this lawmaking ability of the common-law courts that the law concerning same-gender co-parent adoptions has been established in several states, even though that state=s legislation does not address, specifically, these types of adoptions Both trial and appellate courts+have ruled on same-gender co-parent adoptions 134 L Ed 2d 855(1996), in which a Colorado law was declared unconstitutional. The Colorado law had the effect of prohibiting any discrimination protection for gays and lesbians; the Supreme Court found the law violated the equal protection clause of the fourteenth amendment to the U.S. Constitution. The American Civil Liberties Union is preparing a lawsuit in Florida to challenge the constitutionality of the Florida statute, see Joan Lowy, Resistance Organizes Natiomvide Against Gays Adopting, THE COMMERCIAL APPEAL (Memphis, TN), Mar. 14, 1999 at A21, 1999 WL 4140884 Kamerstukken 111996797, 22770, nr. 22, p 2. Verslag van een onderzoek naar de wetgeving landen van ontangst(Den Haag: Ministerie van Justitie, 1996), pp. 19-29 and pp 24-25. This quote intake interlandelijike adoptie en toepassing daanan in de praktijk in een aantal landen van herkomst misstates the status of the cases that have been decided in the u.s. state courts I To suggest that adoption petitions may not be filed by unmarried partners of the same opposite sex because the legislature has only expressed a desire for these adoptions to occur in the traditional nuclear family constellation of the 1930s ignores the reality of what is happening in the population .. Courts have long construed statutes to meet the changing needs of our growing society, providing the interpretation honors the inherent legislative purpose. In the Matter of an Adoption by S M.Y. of Camilla, 163 Misc. 2d 272, 279-80, 620 N.Y.S.2d 897, 902 This will remain the law of the state unless the legislature enacts legislation specifically prohibiting same-gender co-parent adoptions A lower trial court=s interpretation of a state statute must be followed by the parties in the case but that interpretation does not apply in any other of the states courts A state appellate court=s interpretation of a state statute becomes state-wide law, and the appellate court=s ruling must be followed in all of that state=s lower courts
lesbians and gays to file a petition in court requesting to adopt a child, either as a single person seeking to adopt or as joint petitioners seeking to adopt together. The court then must decide whether the petition falls within, or outside, the language of the state=s adoption code. Consequently, same-gender co-parent adoption petitions have been attempted in several states in the United States. Because there is no specific legislation that authorizes same-gender co-parent adoptions in these states, individuals in civil-law countries may assume, incorrectly, that when the state courts issue rulings on same-gender co-parent adoptions, the courts= decisions are not >law.= 20 This is a misunderstanding of the status of a court=s decision in the common-law system. When an appellate state court interprets its state=s adoption code concerning whether to allow samegender co-parent adoptions,21 that interpretation attaches to the adoption code and the court=s interpretation becomes the law of the state. Under the common law, in all subsequent adoption cases, the adoption code must be applied according to the appellate court=s interpretation.22 It is through this lawmaking ability of the common-law courts that the law concerning same-gender co-parent adoptions has been established in several states, even though that state=s legislation does not address, specifically, these types of adoptions. Both trial23 and appellate courts24 have ruled on same-gender co-parent adoptions. 134 L.Ed.2d 855 (1996), in which a Colorado law was declared unconstitutional. The Colorado law had the effect of prohibiting any discrimination protection for gays and lesbians; the Supreme Court found the law violated the equal protection clause of the fourteenth amendment to the U.S. Constitution. The American Civil Liberties Union is preparing a lawsuit in Florida to challenge the constitutionality of the Florida statute, see Joan Lowy, Resistance Organizes Nationwide Against Gays Adopting, THE COMMERCIAL APPEAL (Memphis, TN), Mar. 14, 1999 at A21, 1999 WL 4140884. 20 Kamerstukken II 1996/97, 22 770, nr. 22, p. 2. Verslag van een onderzoek naar de wetgeving inzake interlandelijke adoptie en toepassing daarvan in de praktijk in een aantal landen van herkomst en landen van ontvangst (Den Haag: Ministerie van Justitie, 1996), pp. 19-29 and pp. 24-25. This quote misstates the status of the cases that have been decided in the U.S. state courts. 21 To suggest that adoption petitions may not be filed by unmarried partners of the same or opposite sex because the legislature has only expressed a desire for these adoptions to occur in the traditional nuclear family constellation of the 1930's ignores the reality of what is happening in the population. . . . Courts have long construed statutes to meet the changing needs of our growing society, providing the interpretation honors the inherent legislative purpose. In the Matter of an Adoption by S.M.Y. of Camilla, 163 Misc. 2d 272, 279-80, 620 N.Y.S.2d 897, 902 (1994). 22 This will remain the law of the state unless the legislature enacts legislation specifically prohibiting same-gender co-parent adoptions. 23 A lower trial court=s interpretation of a state statute must be followed by the parties in the case, but that interpretation does not apply in any other of the state=s courts. 24 A state appellate court=s interpretation of a state statute becomes state-wide law, and the appellate court=s ruling must be followed in all of that state=s lower courts
Among these courts, there have been three sstate appellate courts that have denied the adoptions requested by same-gender co-parents, while six states= higher appellate courts" and at least seven states= lower trial courts have decided in favor of same-gender co-parent adoptions Colorado: In re Adoption of T K.J. and K.A. K, Children, 931 P2d 488( Colo. Ct. App. 1996) NO. 95CA0531, 95CA0532, rehearing denied(1996), cert. denied. (1997): Connecticut: In re Adoption Baby Z, 247 Conn. 474, 1999 WL 33449(1999): Wisconsin: In re Angel Lace M, et al., 184 Wis.2d 492, 516N W2d 678(1994). There also have been two trial courts in Pennsyl vania that have ruled against same-gender co-parent adoption petitions, In re Adoption of R B F and R C F, PICS Case No 98-2395(C P. Lancaster Oct. 22, 1998)Cullen, J. and In re Adoption of CC G. and Z.C.G., reported by Danielle Rodier, Another Setback for Same-Sex Parents= Rights, PENNSYLVANIA LAW WEEKLY, July 19, 1999,http://www.lawnewsnetwork.comHowever,inanotherPennsylvaniatrialcourtthejudgehas granted a same-gender co-parent adoption petition, see In re Adoption of E.O.G.& A.S.G., 14 Fiduc Rep 2d 125(Pa C P. York County Apr 28, 1994) District of Columbia: In re MM D. &B. H M, 662 A2d 837(D. C. Cir. 1995): Illinois: In re Petition of K M. and D M, 274 Ill. App. 3d 189, 653 N E2d 888, 210 Ill. Dec. 693(1995); Massach usetts Adoption of Galen, 425 Mass. 201, 680 N.E. 2d 70(1997), Adoption of Tammy, 416 Mass. 205, 619 N E 2d 315(1993), Adoption of Susan, 416 Mass. 1003, 619 N.E. 2d 323(1993): New Jersey: In re Adoption of Two Children by H NR, 285 N.J. Super. 1, 666 A 2d 553(1995); New York: Matter of Jacob, 86 N.Y. 2d 651, 636 NY S2d 716, 660 N E 2d 397(1995)(also involving Matter of Dana, which the court combined with Matter of Jacob); Vermont: Adoptions of B L.V. B. and E.L. V B, 160 Vt. 368 628A.2d1271,27ALR.5th819(1993) Because most trial-court decisions are not published, an accurate number of how many states= trial courts have granted same-gender co-parent adoptions is difficult to obtain, particularly since adoption cases in many states are confidential. According to a 1996 report by the Lambda Legal Defense Fund, courts in at least 21 states have granted same-gender co-parent adoptions. John Cloud, A Differer Fathers= Day, TIME, Dec. 29, 1997-Jan. 5, 1998, at 106 Alaska: In re A.O. L. No. 1JU-85-25-PA(Alaska 1st Jud. Dist. July 23, 1985), In re Adoption of a Minor(C), No. 1-JU-86-73 P/A (Alaska Ist Jud. Dist. Feb 6, 1987): California: In re Adoption of N.L. D, No. 18086(Cal. Super. Ct. San Francisco County Sep. 4, 1987), In re Adoption Petition of Achtenberg, No. AD 18490( Cal. Super Ct. San Francisco County, 1989), In re Adoption of Carol, No 18573(Cal. Super. Ct. San Francisco County, 1989), In re Adoption of Nancy M., No. 18744(Cal. Super Ct. San Francisco County, 1990); Emily Doskow reported being the attorney of record for more than 50 adoptions in the county courts of California in Adoption Options for Gay and Lesbian Couples: An Interiew with Emily Doskow, 20 FAM. ADVOC. 40, 44(Summer 1997; hereinafter cited as Adoption Options); Indiana: In re Adoption of Hentgen-Moore, No. 91CO1-9405-AD-009(Ind Cir. Ct. White County Mar. 24, 1995): Oregon: In re Adoption of M.M.S.A., No D8503-61930(Or Cir. Ct Multnomah County Sept 4, 1985); Pennsylvania: In re Adoption of E.O.G.& A.S.G., 14 Fiduc Rep. 2d 125(Pa. C. P. York County Apr. 28, 1994): Texas: Suzanne Bryant reported an adoption in a Texas court, Suzanne Bryant, Second Parent Adoptions: A Model Brief, 2 DUKE J GENDER L. POL=Y 233 na (Spring 1995): Washington: Interest of E. B.G. No. 87-5-00137-5(Wash. Super Ct. Thurston County Mar 29, 1989), In re Adoption of Child A and Child B, No. 88-5-00088-9(Wash. Super Ct. 1988), In re Adoption of Child No. I and Child No. 2, No 89-5-00067-7(Wash. Super. Ct. Thurston County 1989) John Stevenson reported an adoption in a Washington state court, John Steve Judge Postpones Decision on Lesbian Custody: Lawyer Argues that N C. >Public Policy= Invalidates Adoption, HERALD SUN (DURHAM, N.C. ) July 11, 1997 at CI
Among these courts, there have been three25 state appellate courts that have denied the adoptions requested by same-gender co-parents, while six states= higher appellate courts26 and at least27 seven states= lower trial courts28 have decided in favor of same-gender co-parent adoptions. 25 Colorado: In re Adoption of T.K.J. and K.A.K., Children, 931 P.2d 488 (Colo. Ct. App. 1996), NO. 95CA0531, 95CA0532, rehearing denied (1996), cert. denied, (1997); Connecticut: In re Adoption of Baby Z, 247 Conn. 474, 1999 WL 33449 (1999); Wisconsin: In re Angel Lace M., et al., 184 Wis.2d 492, 516 N.W.2d 678 (1994). There also have been two trial courts in Pennsylvania that have ruled against same-gender co-parent adoption petitions, In re Adoption of R.B.F. and R.C.F., PICS Case No. 98-2395 (C.P. Lancaster Oct. 22, 1998) Cullen, J. and In re Adoption of C.C.G. and Z.C.G., reported by Danielle Rodier, Another Setback for Same-Sex Parents= Rights, PENNSYLVANIA LAW WEEKLY, July 19, 1999, http://www.lawnewsnetwork.com However, in another Pennsylvania trial court, the judge has granted a same-gender co-parent adoption petition, see In re Adoption of E.O.G. & A.S.G., 14 Fiduc. Rep.2d 125 (Pa. C. P. York County Apr. 28, 1994). 26 District of Columbia: In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. Cir.1995); Illinois: In re Petition of K.M. and D.M., 274 Ill.App.3d 189, 653 N.E.2d 888, 210 Ill. Dec. 693 (1995); Massachusetts: Adoption of Galen, 425 Mass. 201, 680 N.E.2d 70 (1997), Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993), Adoption of Susan, 416 Mass. 1003, 619 N.E.2d 323 (1993); New Jersey: In re Adoption of Two Children by H.N.R., 285 N.J. Super. 1, 666 A.2d 553 (1995); New York: Matter of Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397 (1995) (also involving Matter of Dana, which the court combined with Matter of Jacob); Vermont: Adoptions of B.L.V.B. and E.L.V.B., 160 Vt. 368, 628 A.2d 1271, 27 A.L.R.5th 819 (1993). 27 Because most trial-court decisions are not published, an accurate number of how many states= trial courts have granted same-gender co-parent adoptions is difficult to obtain, particularly since adoption cases in many states are confidential. According to a 1996 report by the Lambda Legal Defense Fund, courts in at least 21 states have granted same-gender co-parent adoptions. John Cloud, A Different Fathers= Day, TIME, Dec. 29, 1997-Jan. 5, 1998, at 106. 28 Alaska: In re A.O.L. No. 1JU-85-25-P/A (Alaska 1st Jud. Dist. July 23, 1985), In re Adoption of a Minor (C), No. 1-JU-86-73 P/A (Alaska 1st Jud. Dist. Feb. 6, 1987); California: In re Adoption of N.L.D., No. 18086 (Cal. Super. Ct. San Francisco County Sep. 4, 1987), In re Adoption Petition of Achtenberg, No. AD 18490 (Cal. Super. Ct. San Francisco County, 1989), In re Adoption of Carol, No. 18573 (Cal. Super. Ct. San Francisco County, 1989), In re Adoption of Nancy M., No. 18744 (Cal. Super. Ct. San Francisco County, 1990); Emily Doskow reported being the attorney of record for more than 50 adoptions in the county courts of California in Adoption Options for Gay and Lesbian Couples: An Interview with Emily Doskow, 20 FAM. ADVOC. 40, 44 (Summer 1997; hereinafter cited as Adoption Options); Indiana: In re Adoption of Hentgen-Moore, No. 91CO1-9405-AD-009 (Ind. Cir. Ct. White County Mar. 24, 1995); Oregon: In re Adoption of M.M.S.A., No. D8503-61930 (Or. Cir. Ct. Multnomah County Sept. 4, 1985); Pennsylvania: In re Adoption of E.O.G. & A.S.G., 14 Fiduc. Rep.2d 125 (Pa. C. P. York County Apr. 28, 1994); Texas: Suzanne Bryant reported an adoption in a Texas court, Suzanne Bryant, Second Parent Adoptions: A Model Brief, 2 DUKE J. GENDER L. & POL=Y 233 n.a (Spring 1995); Washington: Interest of E.B.G. No. 87-5-00137-5 (Wash. Super. Ct. Thurston County Mar. 29, 1989), In re Adoption of Child A and Child B, No. 88-5-00088-9 (Wash. Super Ct. 1988), In re Adoption of Child No. 1 and Child No. 2, No. 89-5-00067-7 (Wash. Super. Ct. Thurston County 1989); John Stevenson reported an adoption in a Washington state court, John Stevenson, Judge Postpones Decision on Lesbian Custody: Lawyer Argues that N.C. >Public Policy= Invalidates Adoption, HERALDSUN (DURHAM, N.C.), July 11, 1997 at C1
Regard less of the differences in the outcome of the decisions, however, the courts= analyses sually start from the same place, with an examination of the statutory language of the state=s adoption code. Most of the court decisions initially point out that adoption was unknown in the common law- adoption has been created totally by legislative enactment. Consequently the courts must use rules of statutory construction and interpretation to determine whether same- gender co-parent adoptions are permitted within the adoption code. As mentioned earlier, however, the adoption codes are silent on this issue Generally the courts decid ing this issue start from the foundational rule of statutory construction, the plain-meaning rule. According to this rule, the court must apply the statutory language accord ing to its plain meaning. To ascertain the plain meaning of the statutory language, ours often resort to common dictionary definitions of the words. When the words themselves are ambiguous in their meaning or application, however, the courts also consider the legislative intent of the words for add itional guidance. The use of this statutory-interpretation procedure however, has resulted in contradictory decisions in the cases involving same-gender co-parent dopt In the decisions of the three appellate courts that denied the adoption petitions filed by same-gender co-parents, the courts first relied on the plain meaning of the words of the adoption code to find that the words did not include situations involving same-gender co-parent adoption petitions. The courts used a strict, formalistic construction of the words involved in the codes For example, if the code stated that a single person, a married couple, or a stepparent were allowed to adopt a child, the court would find that a same-gender couple did not fit within this statutory language. The same-gender couple was not adopting as a >single person= because the adoption petition was for a >joint= adoption, and since same-gender couples were not >married they could not adopt as a >married couple. Finally, because the same-gender couple was not married, there could be no >stepparent= or >spouse= within the formalistic use of the plain- meaning rule 29 gene It also appears that in the three states in which the appellate courts denied the same co-parent adoptions, the adoptions were more highly regulated. For example, the Connecticut statute required that, if the child was not being adopted by the legal parent=s >spouse= or >blood relative, then the only way the adoption could occur was by the natural parent=s rights being terminated and a state agency >placing= the child for adoption. 30 In addition, the three appellate courts that denied the adoptions found that the legislative intent did not support these adoptions because the legislative history was silent on the issue, nt adon udges to conclude the legislature probably did not contemplate same-gender co- parent adoptions. Consequently, the courts deferred to the legislature to decide this issue, stating that the legislature was a more appropriate body to determine the question of same- gender co. parent adoptions. 31 See In re Adoption of Baby Z, 247 Conn. 474, 1999 WL 33449(1999) social mores of the public at large is the role of the democratic process and not of the courts. hp (9 31 >The determination whether this legislative decision is or is not in keeping with the changi Adoption of T KJ and K.A. K, Children, 931 P 2d 488, 496(Colo. Ct. App. 1996), NO. 95CA0531 5CA0532, rehearing denied(1996), cert. denied.(1997). >I write separately only to encourage the
Regardless of the differences in the outcome of the decisions, however, the courts= analyses usually start from the same place, with an examination of the statutory language of the state=s adoption code. Most of the court decisions initially point out that adoption was unknown in the common law - adoption has been created totally by legislative enactment. Consequently, the courts must use rules of statutory construction and interpretation to determine whether samegender co-parent adoptions are permitted within the adoption code. As mentioned earlier, however, the adoption codes are silent on this issue. Generally the courts deciding this issue start from the foundational rule of statutory construction, the plain-meaning rule. According to this rule, the court must apply the statutory language according to its plain meaning. To ascertain the plain meaning of the statutory language, courts often resort to common dictionary definitions of the words. When the words themselves are ambiguous in their meaning or application, however, the courts also consider the legislative intent of the words for additional guidance. The use of this statutory-interpretation procedure, however, has resulted in contradictory decisions in the cases involving same-gender co-parent adoptions. In the decisions of the three appellate courts that denied the adoption petitions filed by same-gender co-parents, the courts first relied on the plain meaning of the words of the adoption code to find that the words did not include situations involving same-gender co-parent adoption petitions. The courts used a strict, formalistic construction of the words involved in the codes. For example, if the code stated that a single person, a married couple, or a stepparent were allowed to adopt a child, the court would find that a same-gender couple did not fit within this statutory language. The same-gender couple was not adopting as a >single person= because the adoption petition was for a >joint= adoption, and since same-gender couples were not >married,= they could not adopt as a >married couple.= Finally, because the same-gender couple was not married, there could be no >stepparent= or >spouse= within the formalistic use of the plainmeaning rule.29 It also appears that in the three states in which the appellate courts denied the samegender co-parent adoptions, the adoptions were more highly regulated. For example, the Connecticut statute required that, if the child was not being adopted by the legal parent=s >spouse= or >blood relative,= then the only way the adoption could occur was by the natural parent=s rights being terminated and a state agency >placing= the child for adoption.30 In addition, the three appellate courts that denied the adoptions found that the legislative intent did not support these adoptions because the legislative history was silent on the issue, leading the judges to conclude the legislature probably did not contemplate same-gender coparent adoptions. Consequently, the courts deferred to the legislature to decide this issue, stating that the legislature was a more appropriate body to determine the question of same-gender coparent adoptions.31 29 See In re Adoption of Baby Z, 247 Conn. 474, 1999 WL 33449 (1999). 30 Id. 31 >The determination whether this legislative decision is or is not in keeping with the changing social mores of the public at large is the role of the democratic process and not of the courts.= In re Adoption of T.K.J. and K.A.K., Children, 931 P.2d 488, 496 (Colo. Ct. App. 1996), NO. 95CA0531, 95CA0532, rehearing denied (1996), cert. denied, (1997). >I write separately only to encourage the
Interestingly, two of the three courts= decisions actually stated that granting the requested adoptions would be, in fact, in the best interests of the children. However, a majority of the judges decided that the statutory language and legislative intent required the exercise of jud icial restraint, preventing the courts from granting the adoptions The vigorous dissents in the Wisconsin and Connecticut Supreme Court decisions expressed dismay with the majority opinions= unwillingness to apply the statutory-interpretation provisions in the adoption and children=s codes, which state that the codes are to be >liberally construed to effect the objectives contained in this section =33 or that the codes must be >liberally construed in the best interests of the child=34 Even in the Colorado case which did not contain a dissenting opinion, Judge Ruland concurred specially, stating >. if one assumes again that the adoption is in the best interests of the child then why should the child be deprived of the legal commitments and benefits from a decree which provides a second parent to that child? =>Judge Ruland ended his concurring opinion with a statement in which he hoped >that the issue will be addressed soon either by the general Assembly or in an appropriate court proceed ing [challenging the adoption code as violating constitutionally mandated equal protection rights ]=3 Although three state appellate courts have declined to grant same-gender co-parent adoptions, a much larger number of courts have granted the adoption petitions. In granting same-gender co-parent adoptions, these courts also have applied the plain-meaning rule of statutory construction, as well as relying on the legislative intent of the adoption codes. The use of the plain-meaning rule has resulted in the courts, in general, finding the codes= language >ambiguous- because the codes do not address, directly the situation in which a same gender couple is seeking to adopt a child together, particularly if one of the petitioners is the Wisconsin legislature to visit ch. 48 in light of all that is occurring with children in our society. The legislators, as representatives of the people of this state, have both the right and the establish the requirements for a legal adoption, for custody and for visitation. This court cannot play that role. We can only interpret the law, not rewrite it. In re Angel Lace M, et al., 184 Wis. 2d 492, 519-20 516N w 2d 678, 687(1994)(Geske, J, concurring 32 >In the present case, everyone involved agrees that the adoption is in Angel=s best interests.= In re Angel Lace M, et al. 184 Wis. 2d 492, 523, 516 N. w2d 678, 688(1994)(Heffernan, CJ dissenting). >We recognize that all the child care experts involved in this case have concluded that the proposed adoption would be in Baby Z=s best interests. In re Adoption of Baby Z, 247 Conn. 474, 1999 WL33449,21(1999 In re Angel Lace M, et al. 184 Wis.2d 492, 521, 516 Nw2d 678, 687(1994)(Heffernan, C.J. In re Adoption of Baby Z, 247 Conn. 474, 1999 WL 33449, 29(1999)(Berdon, J, dissenting) In re Adoption of T KJ and K.A. K, Children, 931 P 2d 488, 497(Colo. Ct. App. 1996), NO 95CA0531, 95CA0532, rehearing denied(1996), cert. denied.(1997)(Ruland, J, specially concurring) See supra, notes 26, 27, and 28
Interestingly, two of the three courts= decisions actually stated that granting the requested adoptions would be, in fact, in the best interests of the children.32 However, a majority of the judges decided that the statutory language and legislative intent required the exercise of judicial restraint, preventing the courts from granting the adoptions. The vigorous dissents in the Wisconsin and Connecticut Supreme Court decisions expressed dismay with the majority opinions= unwillingness to apply the statutory-interpretation provisions in the adoption and children=s codes, which state that the codes are to be >liberally construed to effect the objectives contained in this section,= 33 or that the codes must be >liberally construed in the best interests of the child.= 34 Even in the Colorado case, which did not contain a dissenting opinion, Judge Ruland concurred specially, stating >. . . if one assumes again that the adoption is in the best interests of the child, then why should the child be deprived of the legal commitments and benefits from a decree which provides a second parent to that child?= 35 Judge Ruland ended his concurring opinion with a statement in which he hoped >that the issue will be addressed soon either by the General Assembly or in an appropriate court proceeding [challenging the adoption code as violating constitutionally mandated equal protection rights.]= 36 Although three state appellate courts have declined to grant same-gender co-parent adoptions, a much larger number of courts have granted the adoption petitions.37 In granting same-gender co-parent adoptions, these courts also have applied the plain-meaning rule of statutory construction, as well as relying on the legislative intent of the adoption codes. The use of the plain-meaning rule has resulted in the courts, in general, finding the codes= language >ambiguous= because the codes do not address, directly, the situation in which a samegender couple is seeking to adopt a child together, particularly if one of the petitioners is the Wisconsin legislature to visit ch. 48 in light of all that is occurring with children in our society. The legislators, as representatives of the people of this state, have both the right and the responsibility to establish the requirements for a legal adoption, for custody and for visitation. This court cannot play that role. We can only interpret the law, not rewrite it.= In re Angel Lace M., et al., 184 Wis.2d 492, 519-20, 516 N.W.2d 678, 687 (1994) (Geske, J., concurring). 32 >In the present case, everyone involved agrees that the adoption is in Angel=s best interests.= In re Angel Lace M., et al., 184 Wis.2d 492, 523, 516 N.W.2d 678, 688 (1994) (Heffernan, C.J., dissenting). >We recognize that all the child care experts involved in this case have concluded that the proposed adoption would be in Baby Z=s best interests.= In re Adoption of Baby Z, 247 Conn. 474, 1999 WL 33449, 21 (1999). 33 In re Angel Lace M., et al., 184 Wis.2d 492, 521, 516 N.W.2d 678, 687 (1994) (Heffernan, C.J., dissenting). 34 In re Adoption of Baby Z, 247 Conn. 474, 1999 WL 33449, 29 (1999) (Berdon, J., dissenting). 35 In re Adoption of T.K.J. and K.A.K., Children, 931 P.2d 488, 497 (Colo. Ct. App. 1996), NO. 95CA0531, 95CA0532, rehearing denied (1996), cert. denied, (1997) (Ruland, J., specially concurring). 36 Id. 37 See supra, notes 26, 27 , and 28
child=s legal parent. In attempting to deal with this ambiguity, the courts have adopted one of two main analyses. The most common analysis is that the same-gender co-parent adoption is analogous to the codes= provisions authorizing stepparent adoptions. Consequently, since the co parent adoptions are factually similar to stepparent adoptions, the courts apply these provisions to grant the adoptions. This approach is known as the >functional equivalent= analysis and, most commonly, it is applied in situations in which the co-parent is seeking to adopt, with the consent of the legal parent. This is the approach also used by america=s most eminent legislative stud group, the National Conference of Commissioners on Uniform State Laws, which incorporated the adoption of a child by a same-gender co-parent into the Uniform Adoption Act, + under the provision entitled >Adoption of Minor Stepchild by Stepparent. The official Comment to the code cites, with approval, state-court decisions that have used the >fi unction al equivalent= approach in granting these adoptions. #I The other, less common, analysis is to treat the adoption request as a joint petition of doption by two single adults. In this situation, the legal parent and the co-parent file a joint petition of adoption, usually with the legal parent also filing a consent to the adoption by the co Matter of Jacob, 86 N.Y. 2d 651, 636 N.Y.S2d 716, 660N E 2d 397(1995)(also involving Matter of Dana, which the court combined with Matter of Jacob); Adoptions of B L.V. B. and E.L. V B 160Vt.368,628A.2d1271,27ALR5th819(1993) The National Conference of Commissioners on Uniform State Laws is a legislative study group and is comprised of numerous committees, the membership of which includes eminent judges, lawyers, and law professors who study and propose legislation in an area of law in which the committee members have particular expertise UNIF. ADOPTION ACT4-102 Standing to Adopt Minor Stepchild, 4-102(1994),9 U.L.A Comment, Electronic Pocket Part Update(1998). The Uniform Adoption Act was proposed by th National Conference of Commissioners on Uniform State Laws in 1994. The Uniform Act does not have the force of law, but is the National Conference=s proposal of what its ittee members believe a model code for adoption should include. Legislatures in the U.S. states can enact the Uniform Adoption Act as law if the majority of legislators vote in favor of the Uniform Act In addition to permitting individuals who are within the formal definition of >stepparent= to adopt a minor stepchild under this article, Section 4-102 allows an individual who is a de facto stepparent, but is not, or is no longer, married to the custodial parent, to adopt as if he or she were a de jure stepparent. To file a petition under this Article, the de facto stepparent or >second parent= has to have the consent of the court and the custodial parent, whose parental rights will not be terminated by an adoption under this Article. In addition, for the court to grant the petition, the other requirements of this Article have to be met, including the court=s determination that the adoption is in the minor adoptee=s best interests. See e.g., Adoption of B L V B, 628 A2d 1271(Vt. 1993)(de facto stepmother allowed to adopt her unmarried [female) partner=s biological children because it >serves no legitimate state interest= to deny the children >the security of a legally recognized relationship with their second parent). See similar analysis in Matter of Evan, 153 Misc. 2d 844, 583 N.Y.S. 2d 997(Surr. 1992) UNIF. ADOPTION ACT'4-102 Standing to Adopt Minor Stepchild, 4-102(1994), U. L.A. Comment Electronic Pocket Part Update (1998)
child=s legal parent. In attempting to deal with this ambiguity, the courts have adopted one of two main analyses. The most common analysis is that the same-gender co-parent adoption is analogous to the codes= provisions authorizing stepparent adoptions. Consequently, since the coparent adoptions are factually similar to stepparent adoptions, the courts apply these provisions to grant the adoptions. This approach is known as the >functional equivalent= analysis and, most commonly, it is applied in situations in which the co-parent is seeking to adopt, with the consent of the legal parent.38 This is the approach also used by America=s most eminent legislative study group, the National Conference of Commissioners on Uniform State Laws,39 which incorporated the adoption of a child by a same-gender co-parent into the Uniform Adoption Act,40 under the provision entitled >Adoption of Minor Stepchild by Stepparent.= The official Comment to the code cites, with approval, state-court decisions that have used the >functional equivalent= approach in granting these adoptions.41 The other, less common, analysis is to treat the adoption request as a joint petition of adoption by two single adults. In this situation, the legal parent and the co-parent file a joint petition of adoption, usually with the legal parent also filing a consent to the adoption by the co- 38 Matter of Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397 (1995) (also involving Matter of Dana, which the court combined with Matter of Jacob); Adoptions of B.L.V.B. and E.L.V.B., 160 Vt. 368, 628 A.2d 1271, 27 A.L.R.5th 819 (1993). 39 The National Conference of Commissioners on Uniform State Laws is a legislative study group and is comprised of numerous committees, the membership of which includes eminent judges, lawyers, and law professors who study and propose legislation in an area of law in which the committee members have particular expertise. 40 UNIF. ADOPTION ACT ' 4-102 Standing to Adopt Minor Stepchild, ' 4-102 (1994), 9 U.L.A. Comment, Electronic Pocket Part Update (1998). The Uniform Adoption Act was proposed by the National Conference of Commissioners on Uniform State Laws in 1994. The Uniform Act does not have the force of law, but is the National Conference=s proposal of what its committee members believe a model code for adoption should include. Legislatures in the U.S. states can enact the Uniform Adoption Act as law if the majority of legislators vote in favor of the Uniform Act. 41 In addition to permitting individuals who are within the formal definition of >stepparent= to adopt a minor stepchild under this Article, Section 4-102 allows an individual who is a de facto stepparent, but is not, or is no longer, married to the custodial parent, to adopt as if he or she were a de jure stepparent. To file a petition under this Article, the de facto stepparent or >second parent= has to have the consent of the court and the custodial parent, whose parental rights will not be terminated by an adoption under this Article. In addition, for the court to grant the petition, the other requirements of this Article have to be met, including the court=s determination that the adoption is in the minor adoptee=s best interests. See e.g., Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993) (de facto stepmother allowed to adopt her unmarried [female] partner=s biological children because it >serves no legitimate state interest= to deny the children >the security of a legally recognized relationship with their second parent=). See similar analysis in Matter of Evan, 153 Misc. 2d 844, 583 N.Y.S.2d 997 (Surr. 1992). UNIF. ADOPTION ACT ' 4-102 Standing to Adopt Minor Stepchild, ' 4-102 (1994), 9 U.L.A. Comment, Electronic Pocket Part Update (1998)
