Sunday, August 30, 2009

Gay Adoption and International Comity

In 2004, I wrote a law review article about international adoption and international comity, which is the requirement that governments recognize the legal acts of other governments. That’s why my parents married in France under French law are considered married in America under American law. And that’s why my children, adopted in China under Chinese law are considered my children in America under American law. But there's an "out" in international comity -- a government need not recognize judicial acts that are "repugnant" to the law and public policy of that government.

At the time I wrote the article, no countries in international adoption were allowing gay and lesbian couples to adopt. I hypothesized what would happen if a country allowed adoption by gay couples (gay and lesbian couples usually have one member of the couple adopt the child as a single person, then the other parent seeks a domestic “second-parent” adoption.) Now, Uruguay is poised to approve adoption by gay and lesbian couples -- their Senate has passed a bill, now the House has passed a bill, it goes back to the Senate to be reconciled, and the President has agreed to sign it).

So here’s what I wrote in 2004:

Consider the following hypothetical:

Brad Davis enters a committed, long-term relationship with Christopher Martin, and they decide to adopt a child. The country of Gayswana has recently opened its doors to adoption by gay couples. Brad and Christopher adopt Maya, carefully following all the laws and regulations of Gayswana. They then return to the state of Utopia, where they have resided together for five years. After parenting Maya for five years, Brad and Christopher seek to enroll her in public school. The school questions Maya's Gayswana birth certificate and looks askance at the foreign adoption decree. So, Brad and Christopher decide to go to state court in Utopia and seek a state court decree recognizing the Gayswana adoption decree.

Should Utopia recognize the judicial decree of adoption from Gayswana, or is it repugnant to the law and policy of the state? Incidentally, Utopia adoption statutes recite bluntly, “No person eligible to adopt under this statute may adopt if that person is a homosexual.” [Incidentally, that's the Florida statute].

If Utopia were to follow the ruling in Tsilidis, where a state statute limiting adult adoption to married couples justified invalidating an adult adoption by a single man in Greece, Maya's adoption from Gayswana would be repugnant to the laws and policy of the state. In fact, it would appear to be a stronger argument that the adoption was repugnant where the statute explicitly prohibited the adoption under Utopia law. Perhaps the Utopian court would take more seriously the language of Justice Cardozo: a foreign decree is not repugnant and will be recognized unless doing so “would violate some fundamental principle of justice, some prevalent conception of good morals, some deep-rooted tradition of the common wealth.”

Thus, the action to recognize the foreign adoption decree places the court of Utopia squarely in the middle of the debate about gay and lesbian families. Is it moral? Is it in the best interest of children? “Courts today generally use the two-parent, biological family as the template against which to measure, and to conform, other families.” Naturally, the “biological family” model requires one male parent and one female parent. If the court uses this model, Maya's family doesn't “fit.”

But unlike Tsilidis, which involved the adopted son's right of inheritance from the adoptive father's estate after his death, Maya's family is intact. And unlike Tsilidis, Maya is not an adult--she is a 6-year-old child. Is it in her best interest for the court to refuse recognition of the foreign decree of adoption? Professor Cahn argues that the law's use of the nuclear family paradigm fails to take account of the “settled expectations of those living within [so-called alternative] families.” She notes that early adoption law “cabined by the traditional significance of blood relationships,” nonetheless “struggled to accord respect to functioning parent-child relationships with settled expectations.”

Having named the state Utopia, one can hope that the court will recognize the foreign decree of adoption that created Maya's family. If it failed to do so, what would the court do with Maya? Should Maya be removed from the home of the only parents she has known to be placed with a married, heterosexual couple? Does the family have to return to Gayswana to be recognized as a family? Will the court refuse to recognize the decree, but otherwise refrain from interfering with the family?

There may be support for the last option--at least one court has distinguished between the status of adoption and the incidents of adoption, refusing to allow inheritance but stating that their refusal did not depend on the status of the adoption. So, this last option seems the best of many bad options if a court refuses to recognize a foreign decree of adoption. But consider all the rights and duties of parents, discussed previously--all the incidents of adoption. Who can consent to surgery or other medical treatment for Maya? Who is responsible for providing financial support? From whom can Maya inherit, receive Social Security benefits, insurance death benefits? Who can enroll her in school? Who can be punished for failing to enroll her in school? Without judicial recognition as parents, neither Brad nor Christopher can act as Maya's parents. What is clearly called for is a child-centered approach to judicial recognition of foreign decrees of adoption.

So, we can expect my hypothetical to come true in a courtroom near you. Now, you might think that the fact that the U.S. has now fully adopted the Hague Convention Respecting Intercountry Adoption would take care of this. After all, Article 23 says: "An adoption certified by the competent authority of the State of the adoption as having been made in accordance with the Convention shall be recognized by operation of law in the other Contracting States." So, the various states of the United States would have to recognize a gay adoption finalized in Uruguay, right?

Not so fast! Article 24 says, "The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child." That seems to codify the repugnance exception from international comity. So the issue will be ripe for litigation, I think. I hope any state would follow my suggestion of a child-centered resolution, which mirrors the Hague requirement to take into account the best interests of the child.

[Sorry, the article is not available online, unless registered for Westlaw, LexisNexis, or Hein, but here’s the cite: International Adoption and International Comity: When is Adoption “Repugnant”?, 10 Tex. Wesleyan L. Rev. 381 (2004).]

15 comments:

Anonymous said...

Honestly, as much as I care about adoptees and appreciate wonderful, loving adoptive parents, I don't believe gay couples should not allowed to adopt in the first place. It's already hard to be an adoptee. On top of that, imagine a child also has to deal with gay parents and "gay teasing" from their schoolmates. For the sake of the children, gays couple should NOT adopt.

Wendy said...

I TOTALLY disagree. It is unfathomable to me the hatred and discrimination in this country against gays. The uninformed and just plain bigoted do not get that people are born who they are--they LOVE and have families just the same.

Wendy said...

Thanks Malinda for posting this. I appreciate seeing your writing and the exposure of legal-eze when it goes to other ways our nation of freedom denies RIGHTS!

laura said...

Anonymous, They SHOULD be able to adopt AND get married and anything else that I have the right to do for that matter. How are they,2 people who love each other and want to have a family any different than the right to a single person wanting to have a child/family or myself and my husband wanting to raise more children in our family? That we have such tremendous discrimination against gay people that is LEGALLLY ALLOWED truly disgusts me.

Anonymous said...

Wendy & Laura, I see your compassions for the gay folks. I don't discriminate against them. I don't hate them. In fact, I have gay friends. I argue with a gay friend frequently on some hot social issues. Gay adoption is one of them. We still remain friends. For the sake of the children, how do you feel when an adopted kid gets teased at school because s/he has two dads or two moms? This is nothing to do with hatred. It has everything to do with being practical. I also happen to believe that being gay is genetic. There is nothing wrong with it. People are wired differently. But for the sake of a child't well-being, think before adopting a child.

Wendy said...

Anon-with that mentality you would also have to argue 1) don't have kids if you are fat--your kids might get made fun of; don't have kids if you are missing teeth, don't know how to dress, how too much body hair, body odor, an old car, live in the "wrong neighborhood", have to use free lunch, have step-parents, live with your grandparents, have a parent in jail...the list goes on and on.
Very poor logic I have to say.
Also--"Wendy & Laura, I see your compassions for the gay folks."--it is NOT compassion, it is called giving people their rights! I also have to wonder with the "I have gay friends", doesn't that ring to you the same as "I have black friends, I have Hispanic friends (you fill in the blank). If they are truly your friend and you do believe it is hard-wired, how could you deny your friend the same rights and priveledges as you receive? A friend wants the best for their friends.

I can see the way this argument can be twisted to supposedly be in the best interest of the child, but it really just chimes loudly as another way to discriminate.

malinda said...

Anon,

That same argument -- that children will be teased -- can be used to ban singles from adopting (my kids have had remarks made about the fact that they don't have a daddy), ban transracial adoption, ban older parents from adopting, ban fat people from adopting, ban ugly people from adopting . . . . all for the sake of the children.

When the choice is between no family and an "imperfect" family, I pick family.

malinda said...

Hah, Wendy and I seem to share one brain today!

osolomama said...

Anonymous, I disagree vehemently. Practical shmatical. Your argument is what I call the racism-is-ineivitable argument because it is so similar to the argument that people of different races should not marry because it will be hard on the kids. Basically you accept an injustice and use it as a lever to say no. So that means you accept--and defend--the injustice. Were you aware of that? This argument is never acceptable. Try again.

Wendy said...

Hates when she rushes and forgets to edit, sorry for the pathetic grammar in my post!

osolomama said...

Wendy, you are spot on with the word *compassion*. The first time a family member used the expression "compassion for homosexuals" with me was the beginning of the end of our relationship. It is a hideous phrase and the person using it doesn't even have a clue how arrogant it is. Unfortunately, certain religious denominations prop people up in this stance, utterly oblivious to the fundamental injustice. Oh, it's so sick I can't stand it.

Wendy said...

I so agree osolomama. Gays are not "suffering" in the sense that they would need and/or want compassion--other than the fact their rights are denied and they are treated as second-class citizens.
It is so frustrating when I hear this type of reference--and I have heard it applied to several groups throughout the years (adoptees being one of them). I don't know if they don't get how arrogant it is or if they do it on purpose. I often wonder the same thing about those who do not see their white priveledge. I obviously don't know who anon is (another thing I don't get is the whole anon identifier), but the tone with "gay folks" tells me that is is the latter.
I am so glad there are lawyers out there like Malinda who make sure the other side of the seemingly benign issues are out there!

Diane said...

Added a new word to my vocab- Comity. At first I thought you mispelled committee ;)

Anonymous said...

thank-you so much for your blog post! I'm a 2E writing an appellate brief on gay adoption and international comity! Your LR article is extremely helpful! Best of luck as well :)

dp said...

Thank you for the good read, but my research shows that comity is discretionary ... not a requirement. By that rationale, it does not automatically flow that comity will be granted even if a foreign decree is found to NOT be repugnant to public policy. While public policy is a significant hurdle, an argument for comity must still satisfy the entirety of the court's discretion. It is a practice that promotes convenience & harmony, but it is by no means a requirement.