The History of Gay Adult Adoption
With the Supreme Court ruling in Obergefell v. Hodges in 2015 it is easy to forget the many obstacles same sex partners had to overcome in order to be legally considered married. “What they are seeking, they stress, is an equal right to enter the long-standing institution of marriage, with access to that institution being a ‘fundamental right”(1). It wasn’t even until 1961 that Illinois decriminalized “sodomy,” and up until 1969 homosexuality was still categorized as a mental illness by the American Psychiatric Association.However, in all seven states, enforcement of these rulings was stayed pending a decision by a higher court. “People today really have a hard time remembering, let alone feeling, what it was like to be an outlaw — to be truly strangers to the law — shoved out of every legal system, and then persecuted”(2).
Typically when one thinks of adoption, the image of a young child being taken in by new loving parents comes to mind. Now imagine that your adopted “child” is your lover, long time partner, and an adult. Welcome to the world of Gay/Lesbian Adult Adoption.
The history of Gay/Lesbian adult adoption has been kept quiet by both the straight and gay communities. It’s not too difficult to imagine why. Imagine explaining to your loved ones that your partner is legally considered your parent or child. Due to the hush-hush nature of this topic, there are not many solid statistics regarding the number of adoptions of this nature. What is known is that this type of adoption became most popular and used during the 1970s and 1980s. So why would someone want to legally adopt or be adopted by their partner? Adult adoption created a sort of makeshift marriage that legally considered the two parties family-even though technically it would be a “parent-child” relationship.
“Same sex partners do not have a constitutional right to marry. In addition, adult adoption establishes only the legal relationship of parent and child. Thus the use of adoption to create what some courts have termed a “pseudo-marriage” has encountered some judicial opposition”(3).
The benefits of a legal marriage are quite palpable. Among these benefits are; the tax free transfer of property upon death of a spouse, social security pension, joint filing of taxes, insurance benefits, hospital visitation rights, and first of kin rights in emergency situations. Since Gays and Lesbians could not legally marry, adult adoption created something that was legally very similar.
“Historically, more frequently than not, adoption has served as a legal mechanism for achieving economic, political and social objectives rather than the stereotype parent-child relationship. (citation omitted) Adoption is often utilized by adults for strictly economic purposes, especially inheritance. Other considerations include insurance, tax impact, and … [housing]. Such a material concern is one of sober life reality and should not be regarded by the court as a cynical device to evade the strictures of the . . . policy of the adoption law” (4).
Some possible motivating factors that drove Gays and Lesbians to adult adoption are as follows: inheritance, next-of-kin regulations, employment benefits, and the creation of a family unit. All of the previous mentioned motivating factors are possible through a legal parent-child relationship.
The process through which an adult could adopt another adult was quite extensive. The adoptee would have to legally disown themselves from any previous familial ties. “First, his biological mother had to legally disown him. Then a social worker was dispatched to the Rustin-Naegle home in Manhattan to determine if it was fit for a child. “She was apprised of the situation and knew exactly what was happening,” Naegle told me. “Her concern, of course, was that he wasn’t some dotty old man that I was trying to take advantage of, and that I wasn’t some naive young kid that was being preyed upon by an older man””(5).
This is not to say that these adoptions went on without a hitch so to say. Since adoption is a state controlled process, if the state in question did not agree with this practice they could prevent the adoption from happening. They would do this with certain stipulations such as a specific age difference and/or consent of the current legal guardian. “In a well-known case from 1984, Adoption of Robert Paul P., New York’s highest court denied an adult gay adoption because, well, the court thought it was icky. In slightly more technical terms, the justices were concerned that the adoption wasn’t intended to create a filial, father–son relationship, but to protect an intimate same-sex relationship”(6). So basically if the state thought you were up to some “gay” stuff and not truly a parental-child relationship they could deny you the adoption process.
For couples in this pseudo-marriage that survived to see legislation passed in their states acknowledge same-sex marriage; many would choose to get married and annul their previous adoption. As previously mentioned, the supreme court ruling in Obergefell v. Hodges legalized same-sex marriage on a national level back in 2015, which was a pivotal moment in American LGBTQ History (7). Due to this decision this type of martial adoption does not need to exist.
References:
1 “Obergefell v. Hodges.” Ballot Pedia. Accessed April 19, 2017. https://ballotpedia.org/Obergefell_v._Hodges.
2 Green, Elon. “The Lost History of Gay Adult Adoption.” The New York Times Magazine. October 19, 2015. Accessed April 12, 2017. https://www.nytimes.com/2015/10/19/magazine/the-lost-history-of-gay-adult-adoption.html?_r=0.
3 Peter N. Fowler, Adult Adoption: A “New” Legal Tool for Lesbians and Gay Men, 14 Golden Gate U. L. Rev. (1984). http://digitalcommons.law.ggu.edu/ggulrev/vol14/iss3/12
