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).]
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