Court Urged to Consider Harms of Bans to Adopted and Waiting Foster Children

The Donaldson Adoption Institute (DAI) announced their participation as lead amicus on an amici curiae brief filed by law firm Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with the U.S. Supreme Court in the case Obergefell, et al. v. Hodges, et al. (No. 14-556), which challenges the constitutionality of same-sex marriage bans in states under the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit.  The amici curiae brief focuses on the harmful impact of state same-sex marriage bans on adopted children and the child welfare system in the United States.

The amici include some of the most respected nonprofit organizations dedicated to improving child welfare policy and practice.  Joining DAI in signing the brief are the Center for the Study of Social Policy, Child Welfare League of America, First Focus, North American Council on Adoptable Children, and Voice for Adoption. 

The brief, drafted by Mintz Levin, argues the crucial point that adopted children in states that prohibit same-sex couples from marrying and adopting jointly (or adopting as “second parents”) have legal ties to only one parent, and consequently, those children and families suffer numerous and profound harms, including the following:

▪ Health and Safety:  Non-legal parents are restricted or prevented from making critical medical decisions on behalf of their adopted children;

▪ Financial Insecurity:  Adopted children with only one legal parent are in danger of not receiving survivor benefits or child support in the event of the non-legal parent’s death or separation from the legal parent, and non-legal parents cannot claim their adopted children as dependents, depriving them of financial benefits, such as the Earned Income Tax Credit; and

▪ Psychological Harms:  Adopted children in families headed by same-sex parents are particularly vulnerable to the stresses that stem from not having family permanency or stability.

In addition, the states’ “optimal family” rationale against same-sex marriage – that families headed by two biological parents are superior and ideal – stigmatizes families with adopted children as sub-optimal.

In states that limit joint or second-parent adoption to married couples, state bans on same-sex marriage adversely impact the more than 100,000 children waiting to be adopted by discouraging qualified, willing, and happy families -- families that tend to be more motivated to adopt -- from adopting.  Of those tens of thousands of children, more than half (54%) have been waiting longer than two years, while a significant portion (13%) have been waiting longer than five years.  Discouraging same-sex couples from adopting means that many of the children waiting to be adopted will have to wait longer, and some will “age out” of foster care without having a stable, permanent family. 

“Studying the modern family -- including those headed by gay and lesbian individuals and couples -- and providing practical resources for individuals, families, professionals and policymakers is one of our four key pillars,” said April Dinwoodie, Chief Executive of DAI.  “We are grateful for the partnership with the law firm Mintz Levin, as well as the other child welfare amici who supported this important effort, which underscores the harms of same-sex marriage bans on adopted children in families headed by same-sex parents.”

Mintz Levin drafted and filed the brief on a pro bono basis as part of the firm’s longstanding support of human rights involving the LGBT community:

“We are proud to be partnering with DAI and the other child welfare organizations in order to
afford same-sex couples the same opportunities as others to build strong, loving families in which to raise children, particularly those children in need of adoptive parents,” said Susan M. Finegan, Chair of Mintz Levin’s Pro Bono program and a Member of the firm’s Litigation Practice. 

About The Donaldson Adoption Institute

The Donaldson Adoption Institute’s mission is to better the lives of everyone touched by adoption by providing leadership that improves laws, policies and practices through sound research, analysis, education and advocacy. Since its founding in 1996, DAI has taken a holistic approach by considering the needs of adopted persons, birth/first parents, adoptive parents, their extended families and professionals.

Read DAI’s research on adoption by gays and lesbians, finding no child-centered reason to prevent these individuals and couples from becoming adoptive parents, and recommending that gay and lesbian parents have the opportunity to provide permanent, loving homes for children living in temporary care.