The international legal context governing intercountry adoptions by gay men and lesbians.

Author:Dambach, Mia


The adoption of children by gay men and lesbians in domestic contexts is increasing and can operate in a way that primarily focuses on the best interests of children by providing them with loving homes (Hill, 2009). However, the situation for intercountry adoptions by gay men and lesbians is constrained and in some circumstances impossible given the stances taken by countries of origin. Despite receiving countries such as Germany, Iceland, Denmark, the United Kingdom, the Netherlands, Norway, Sweden, Belgium, Spain, Israel, South Africa and some US, Australian and Canadian states having legislation, policies or practices that expressly allow for adoptions by gay men and lesbians, the implementation of the latter in countries of origin is not so straightforward. By definition, a 'country of origin' is one where a child is habitually resident before she or he is moved to a 'receiving country' for the purpose of an intercountry adoption (Article 2, The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993--hereafter THC-93).

The entry of homosexual couples into the intercountry adoption 'market' is virtually unfeasible in reality given the fact that so much depends on the prevailing practice in the countries of origin (assuming they are duly informed of the situation of the prospective adoptive parent). Extremely few of them have legal frameworks for creating filiation ties for this group of people. Decisions about the numbers of children who will be available for adoption and to whom are part of the prerogative of each country of origin. Routinely, they use this right to set very strict conditions as to the suitability of prospective adoptive parents, taking account of factors such as age, presence of biological children, marital status, financial situation and religion, as well as sexual orientation. As indicated in the first part of this article, this prerogative is well founded in international standards.

The second section provides an overview of how this entitlement forms part of the national legislative framework relating to adoptions by gay men and lesbians, a difficult endeavour given that to date no global comparative analysis of such provisions among countries of origin exists. This article seeks to address this gap by analysing regional trends in these countries--another difficult exercise since adoption practices, whether domestic or intercountry, are not always applied in the same way. Nevertheless, one feature is equally consistent among so-called sending and receiving countries, namely that they all have established criteria for prospective adopters, either in legislation or practice, but vary in their willingness to contemplate adoption by gay men and lesbians. Moreover, this specific criterion can vary not only across countries but also within areas of the same country. With the exceptions of South Africa and the USA (which is both the largest receiving country and a country of origin, as discussed later), there is no other known country of origin where legislation allows the intercountry adoption of children by gay men and lesbians, although some case law is emerging.

The third part of the article discusses the implications of both international and national laws for intercountry adoption practices. It stresses the importance of respecting countries of origin when they define their eligibility criteria, in the spirit of respect and co-operation that underpins international law. It is argued that receiving countries which have prospective adoptive parents who are gay and/or lesbian should forward these applications solely to states that accept this type of candidate.

International standards for adopting a child and requirements for adoptive parents

UN Convention on the Rights of the Child 1989 (UNCRC)

The UNCRC addresses in broad terms the issue of children deprived of their family (Article 20) and the use of adoption (Article 21), providing some implicit insight about the eligibility criteria for prospective adoptive parents and stressing the paramountcy of the best interests of the child. Accordingly, this principle must be the guiding and absolute basis for any adoption placement. When choosing a prospective parent, irrespective of their sexual preference, the first question must be: Is this in the best interests of the child?

As a practical tool, the 'best interest determination model', published by the United Nations High Commissioner for Refugees (UNHCR) in May 2008, can be used as an aid to determine the contexts where an adoption by gay men and lesbians meets the desired criterion. Although this tool targets the identification of suitable outcomes for unaccompanied and separated children, the section on how to determine the best placement options is highly relevant to intercountry adoptions. For example, one recommendation is that at least one qualified child welfare officer should be involved in collecting information. This duty should include, inter alia, verification of documents providing information on the child, background information on conditions in the geographical locations under consideration, views of experts, interviews with the child and, if appropriate, people within the child's network. The UNHCR tool also notes that when interviewing a child, it is essential that he or she is allowed to discuss past experiences that may affect the decision, and that their views, hopes and fears about different options are fully considered.

Likewise, the UNHCR tool stresses the importance of interviewing family members and others close to the child about issues, including inter alia, views expressed by the child and possible areas of conflict. For children in need of alternative care where adoption is a considered option, the question about placement with gay men or lesbians--either as individuals or as couples--should be raised and recorded during discussions with all the various parties (eg caregivers, extended family and siblings, friends, neighbours, teachers, community leaders and workers, the guardian). If this method is applied in the context of intercountry adoptions, the existing cultural and traditional views of the countries of origin would logically play a part in ascertaining the types of desirable prospective adoptive parent. It is conceded that, in practice, caregivers and the immediate network of the child to be adopted are not routinely asked about their preferences regarding the characteristics of future adoptive parents in receiving countries, let alone in the countries of origin. Yet it is contended that such a methodology can be helpful in determining the best interests of the child and sets a standard for good practice.

Moreover, the UNCRC specifically notes that when considering alternative solutions for a child permanently deprived of their family, 'due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background' (Article 20(3)). Ideally, the authorities responsible for matching should aim to identify prospective adoptive parents who have a respect and some affinity for the child's background. Central adoption authorities (CAAs) in receiving countries often have domestic legislation or practices to this effect. For example, in New Zealand the CAA website directed at foreign prospective adoptive parents states that 'you would obviously need to be able to embrace and promote a cultural identity for the child'.

In relation to intercountry adoptions by gay men and lesbians, the need to have 'regard' to the same cultural values, standards and regulations of a child's birth country becomes even more pertinent if the adopted child is ever to return to a homeland that has strict prohibitions against such practices. In such a situation, if the adopted child decides to visit their country of origin, this would be difficult in the company of adoptive parents who are gay or lesbian. Any potential reunion with remaining family would be complicated and increase unnecessarily the risk of the child facing another form of rejection.

The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption 1993 (THC-93)

Complementary to the UNCRC, THC 93 has the objective of establishing:

... safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognised in international law. (Article 1(1))

Article 5 requires that the prospective adoptive parent should be 'eligible and suited to adopt'. Article 17(2) recognises that for an intercountry adoption to be valid, the central authority of the country of origin must be in agreement with the adoption. Clearly that country would have to approve the character and type of prospective adoptive parent to whom they will be delegating parental responsibilities.

Collienne (2006) specifically notes that Article 2(1) is limited to spouses:

The Convention shall apply where a child habitually resident in one Contracting State ('the State of origin') has been, is being, or is to be moved to another Contracting State ('the receiving State') either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.

Parra-Aranguren (1994) explains that the minutes from preparatory work for THC-93 reveal that many states wanted to include the term 'married heterosexual couples' in order to exclude adoptions by homosexuals and that despite not being expressly drafted in that way, there was a consensus among those framing the Convention that this is how the term spouse should...

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