Gay adoption has achieved three notable gains recently in Argentina and New South Wales (advancing in both by legislative action, both in the face of strong opposition by the Catholic Church), and in Mexico City, where the Constitutional Court ruled that the city’s law on gay marriage also permitted adoption by same sex couples. Less high profile cases which you may ahve missed also illustrate how queer families are gaining legal acceptance in many parts of the world – even in states like Florida, which has a constitutional ban on gay adoption.
Vanessa Alenier and Melanie Leon : Taking on the Florida Ban in Court
Whereas a few years ago, opposition to gay equality as demonstrated in the ban was exploited by some conservatives as a vote catcher, it is becoming obvious that this has now become something of an electoral liability. Bill McCollum, the AG who has been responsible for fiercely defending it, became a laughing stock and saw his political career nosedive after reports that George Rekers, his extravagantly paid “expert adviser” had taken a rent boy on a European trip. McCollum lost his bid for the Republican gubernatorial nomination. Now, the current governor Charlie Crist says he is unlikely to defend the law in court. It is entirely plausible that after November, neither the new governor nor AG will support it. For that, we will have to wait and see.
Until the state supreme court rules, it is in any case a dead letter. Lower courts have now approved four gay adoptions in specific cases, regularly finding that the ban is unconstitutional. As these appeals wind their way up the appeals process, other courts will approve adoptions for still more gay and lesbian parents. Then, if the state Supreme Court does in fact rule in favour of the ban, it will no doubt head to the federal courts. Given recent judgements on DOMA, DADT and Prop 8, I cannot see the ban surviving federal judicial scrutiny.
From the Miami Times:
Vanessa Alenier and Melanie Leon faced the Florida third district court of appeal Wednesday in an attempt to keep their adopted son, a relative of Alenier's.
"Wholesome environments is not a synonym for straight," attorney Alan Mishael said.
And From Proud Parenting:
Robert Lamarche became the fourth Floridian who is gay to publicly emerge as an adoptive parent. He is the first gay Floridian from north of Miami-Dade to publicly disclose an adoption. A judge approved the adoption last month, in a Broward County juvenile courtroom. In her decision, Judge Hope T. Bristol wrote that the adoption, "is in the minor's best interest." The state law, Bristol wrote, is unconstitutional - and the state is not objecting to the adoption. Lamarche is adopting a teenage boy he has fostered for about two years.
New South Wales last month became the third Australian territory to legislate for gay adoption, following Western Australia and ACT. But in a move paralleling the process in Florida, a Victoria court has approved a gay adoption even in the absence of legislative sanction.
In an elaborate legal manoeuvre also used elsewhere, a male couple wanting to adopt a child they had already been fostering for several years designated one of them as a sole parent to get around a provision that gay couples may not adopt. The adoption was approved.
The boy's adoptive father said it had felt like they were going on trial for their sexuality, and the possibility of losing their son had been ''hell''.
''It's been a nightmare … in this limbo state.''
He said it had been a strain on him and his partner to decide who would be the one to adopt, but the outcome was just: ''We feel as though we've done our bit to help pave the path for others.''
Opponents (such as the Catholic Church) regularly claim that they base their stance on “the best interests of the child”. What is important here is that courts, as in Florida, are finding that when it comes down to specific children not abstract principles, “the best interests of the child” frequently demand approval for adoption by gay parents.
The man's partner said he could understand why some people thought every child should have a mother and a father but many children had neither.
He said when they first fostered their son, they had thought he had a speech impediment but then realised he had trouble speaking only because he had been so neglected. He is now confident and articulate, and his dads say he is thriving.
Even if one concedes the debatable claim that children are somehow better off with one mother and one father (and I don’t), quite often this is just not an option.
Karen Field, chief executive of Drummond Street Relationship Centre, said many foster-care agencies actively marketed themselves to gay couples and the state was heavily reliant on the assistance of gay foster carers.
She said the double standard that did not allow gay couples to adopt was ridiculous.
''In worst-case scenarios, you could have someone who could end up not being able to access a child that they've raised for a number of years.''
In the UK, the principle of gay adoption is established, enshrined in law, and well accepted. The challenge here has been to resist the claims of the Church for special treatment and dispensation from the equality provisions in the law.Earlier this year they appeared to have won their case when amendments to the legislation made provision for the possibility of such exemptions - but the only Catholic charity which has not adapted to equality for gay couples lost its application to the charity commission for such an exemption.
Irrespective of the provisions of national legislation, EU human rights provisions are increasingly holding member states to a union –wide standard of equality. In France, just such a referral to the EU could change the rules for adoption right across Europe.
A French gay couple who were denied the right to adopt a child will have their case heard by Europe's top rights court, in a case that has won support from rights and gay groups.
In 2006, Valerie Gas applied for an adoption order for the daughter of her long-term partner Nathalie Dubois.
Gas and Dubois had lived together since 1989, and Dubois had a daughter in 2000 from an anonymous donor.
French courts rejected the adoption request, saying it was not in the interests of the child and could deprive Dubois of her rights in respect of the child.
The couple complained to the European Court of Human Rights (ECHR) in 2007 that the ruling was discriminatory, amd infringed their right to respect for their private life.
In its admissibility decision published on Wednesday, the court found that the case "raised serious issues of fact and law" that required examination.