Gay Adoption Policy Analysis

I. Delinieation and Overview of the Policy Under Analysis

Social attitudes about family life have undergone profound changes in recent decades. While public acceptance of homosexuality remains a deeply decisive issue, adoption by gays and lesbians has become increasingly acceptable, with 46% of the national population favoring gay adoption. (Pew Research Center, 2006) In New York State, statutes developed to permit gays to adopt are among the most permissive in the nation. New York Adoption Code 18 NYCRR 421.16 (h)(2) (2004) states that "applicants shall not be rejected solely on the basis of homosexuality", which expressly prohibits discrimination based on sexual orientation when determining who may adopt.

According to The Children's Defense Fund, 14,840 children in New York were awaiting adoption from foster care in 2006. Across the United States, there were 126,000 children waiting to be adopted from foster care in 2006. (Children's Defense Fund) Laws that ban gay people from adopting, or those that specifically don't prohibit discrimination in adopting and fostering are of critical importance to the LGBT community because labeling a group of people as unfit to parent can be construed as an attack on their humanity.

Laws protecting homosexuals in the process of adoption affect not only members of the LGBT community, but also the many children awaiting adoption. Children who grow up without families are much less likely to grow into responsible adults.(Casey Family Services, 2004) Those who age out of foster care are at high risk for dropping out of school, being unemployed, experiencing homelessness, and getting involved with drugs and criminal activity.

In the late 1970's and 1980's, it was recognized that children were lingering in the foster care system, being placed in a series of homes, and never part of a long term plan, other than to remain in care. The idea of permanency planning is based on the belieft that the preferred plan for a child who cannot return home is adoption, and that every child adoptable. (Leighninger, 2004) Permanency planning became a part of national social welfare policy with the passage of the Adoption Assistance and Child Welfare Act of 1980. (Leighninger, 2004) In an attempt to reduce the number of children in foster care, new permanency guidelines in the Adoption and Safe Families Act of 1997 have led to an increased number of children in the child welfare system who need homes, while there is a growing number of non-traditional families who want to adopt.

In addition to the terrible human costs of denying children access to qualified adoptive parents, excluding gays and lesbians from adopting would impose significant economic costs on a state, considering that foster care costs money. Prohibiting discrimination against homosexuals in an application to adopt came only a year after New York state enacted a Sexual Orientation Non Discrimination Act, which outlawed antigay discrimination in housing, employment, public accommodation, educations and credit throughout the sate. (Office of the NYS Attorney General, 2007)

II. Historical Analysis

Homosexuality has existed since humans have been documenting history. However, only since recent decades have laws been instituted to protect gays from discrimination in some instances. Historically, gays have been discriminated against for centuries, through denial of equal treatment in courts, housing, and employment, and by being targets for violence and harassment. (Human Rights Campaign, 2006) The federal government denies employment in the CIA, and the Army to gays who are open about their homosexuality. Homosexuality was also labeled a felony crime by imposed laws against sodomy, which weren't ruled unconstitutional until 2003. (Lawrence v. Texas, 2003) Homosexuals are often compared with other minority groups and many were inspired by the African American Civil Rights movement led by Martin Luther King, Jr.. His ideas and concepts about equality were adopted by the gay community. The gay rights movement is rooted in the Stonewall riots (1969), marking the first major attempt of gays to organize themselves and resist discrimination. (Human Rights Campaign, 2006) Today, gays continue to advocate and fight for equality under the law, including protesting the proposed Federal Marriage Amendment, the Defense of Marriage Act, and lobbying for sexual orientation, and gender identity to be added to existing hate crime bills.

Since the beginning of history and in cultures across the globe, children have been transferred from parents who couldn't or didn't want to care for them to others who wanted them for love, labor or property. In America, states began passing legislation concerning adoption in the nineteenth century, beginning with the Massachusetts Adoption of Children Act, enacted in 1851. (O'Brien & Zamostry, 2003) This act required judges to determine that adoptive parents had sufficient ability to raise a child, and is considered the first adoption law. This law also required written concsent of the birthparents and dissolved all legal ties between them and their biological child. (O'Brien & Zamostry, 2003) Most importantly, this act began the process of required court approval for all adoptions, and appointed state courts, rather than federal courts, to carry out the process.(Modell, 1994) Over the next 25 years, 24 other states followed in passing similar laws.

In following years, Charles Loring Brace, founder of the New York Children's Aid Society, concluded that orphan trains were the best solution in rescuing poor and vagrant children in New York City. Between 1854 and 1930, as many as 250,000 children from New York and surrounding areas were sent by train to Midwestern and western states to families interested in adopting orphans, in which no formal investigation was made, and no oversight provided. (Kahan, 2006) Notice to birthparents was not required, and it is estimated that approximately half the children transported to the west were not actually orphans. (Pfeffer, 2002) Brace was a missionary who wished to remove children of poor Catholic families, and place them in Protestant farming families. (Pfeffer, 2002) The orphan train placements served as a foster care system, without payment to the foster families, and were a cost effective way to manage poor children, in contrast to institutionalizing those who could not live at home. (Kahan, 2006)

An outcry against Brace's orphan trains in the early 1900's, led advocates of children to the other extreme, in which families were to be preserved at all costs. (Carp, 1998) Rather than split up families, child welfare reformers worked to prevent the factors which