The Gay Parent Trap

Photo by Cheryl Gerber Steve Majors (left) and Todd Leavit adopted Shoshana and Claudia in New Jersey before moving to New Orleans.

For parents of newborns, one question pops up on a nightly basis: Who will get up with the baby? In this respect, Tracy and Minet are no different than any other couple.

  "Last night, (the baby) woke up twice," Tracy says. "She usually does the first one and I'll do the second one. She went to hit me (to wake me) and I was like, 'Please, please let me sleep. I worked outside all day."

  Where Tracy and Minet differ from other parents is — according to Louisiana law — Minet doesn't exist. She is not the co-parent of bubbly 9-month-old Miles, or rambunctious 5-year-old Madden, the couple's two adopted sons. Since the Louisiana Constitution's Marriage Amendment Act of 2004 explicitly prohibited same-sex marriage, only married couples and single individuals can adopt in this state, so only Tracy's name appears on the boys' birth certificates.

  It's a difficult situation for gay and lesbian couples, and it's not exclusive to Louisiana. In 18 states, including Louisiana, there is no prohibition against gay adoption — sexual orientation isn't mentioned in the adoption laws — so gays and lesbians can adopt, but they can't apply for two-parent adoption. With only one of the couple's names on the birth certificate, the other person has no legal parental rights to the children he or she is raising.

  "It's frustrating that this woman who works for those kids and loves them through every moment of their lives and is right beside me isn't respected — isn't even acknowledged by our laws," Tracy says. (The couple asked that their last names not be used in this article.)

  A law can be changed either by introducing new legislation or having the courts declare it unconstitutional, but in Louisiana, current adoption law is like a version of "Don't ask, don't tell." Some advocates for two-parent gay adoption worry that bringing the issue to the forefront could cause just the opposite consequence and make gay adoption completely illegal in Louisiana.

The need for adoptive parents in the United States is high. An estimated half a million children reside in foster care, with 120,000 waiting to be adopted. In Louisiana, 4,833 children live in foster care and 1,162 of these kids are eligible for adoption. Misty Stenslie, a former foster child and the deputy director of Foster Care Alumni of America, says when children can't return to their biological parents, adoption is absolutely preferable to a foster home, but waiting for that to happen can seem interminable.

  "To me, one of the most striking things about the Louisiana-specific information is the fact that children are waiting an average of 48 months to be adopted from foster care," Stenslie says. "As I know so well from my own experiences, four years is a very long time to be without a home, without a family, without knowing who you are or where you belong."

  Stenslie "aged out" (reached legal age) before a family could be found to adopt her, and each year this happens to 25,000 children who are waiting for adoption in the U.S. Stenslie, a social worker and a foster parent, opposes blanket bans against gays adopting, considering it "a great disservice to children.

  "We're sentencing children to growing up alone," she says.

  Human Rights Campaign, a civil rights group that promotes equality for gays, lesbians, bisexuals and transgender individuals, agrees. On its Web site, HRC lists a number of organizations that also support gay adoption, including the American Academy of Child and Adolescent Psychiatry, the American Medical Association, the Child Welfare League of America and Voice for Adoption.

  Chris Edelson, the HRC's legislative director, says though only one state (Florida) completely bans gays from adopting, Mississippi and Utah have laws preventing same-sex couples from adopting — technically, single gay individuals can still adopt in these states. A law recently passed in Arkansas that prohibits singles of any sexual orientation from adopting children, and Edelson says it was clearly aimed at gays because heterosexual couples can get married, whereas gay marriage is outlawed. Edelson also reports that Tennessee is currently considering a law similar to the one in Arkansas, but he doesn't foresee too many states following suit at a time when most state legislatures are trying to cut costs, not incur more.

  "If you keep kids in state care or foster care, it's an expense for the state," Edelson says. "Obviously, states have huge budget problems, so it's very difficult to pass any bill that costs money."

  Some states such as California, New Jersey and New York have policies that require, either implicitly or explicitly, that sexual orientation cannot be a factor in denying adoption. It's not surprising these states rank near or at the top for gay-parent adoptions, with California having 16,458 adopted children; New York, 7,042 adopted children and New Jersey, 2,344 adopted children living with gay parents. Louisiana has 469 adopted children living in gay households according to the Williams Institute at the UCLA School of Law. Across the country, there are an estimated 65,500 adopted children living with gay parents, though the number is likely higher considering sexual orientation isn't addressed in many states' adoption procedures.

  Todd Leavitt and Steve Majors moved to New Orleans a few years ago, but not before they had legally adopted their two daughters, Claudia and Shoshana, in New Jersey. Both men's names are listed on the birth certificates, so if the couple split up, each would have visitation rights or custody. Additionally, if either Leavitt or Majors died, their daughters would be entitled to the deceased's Social Security benefits. This isn't the case for Minet, and Leavitt and Majors say they are aware how fortunate they are to have this legal designation as co-parents — but it's also something they are ready to prove if they're ever challenged.

  "We keep copies (of the birth certificates) in our wallets," Majors says. "You just never know."

  Noel Vargas, a New Orleans adoption attorney, says while there is no real prohibition against gay adoption in Louisiana, the process is still more difficult for gays. Two of the largest adoption agencies in New Orleans, Volunteers of America and Catholic Charities, only work with married couples, so gay couples in the area either adopt internationally or apply with smaller, gay-friendly agencies like A Bond for Life (ABL) or private attorneys.

  For Miles, Minet and Tracy applied with ABL, and the birth mother met with the family and was aware it was a gay household before she selected them.

  "From a private standpoint, if a birth mother or a birth father wants to surrender their child to a gay couple, that's their right," says Vargas, who sits on the board of ABL. As he points out, however, the official "surrender" can only be made to one person, leaving the other half of the couple with no legal designation.

  Tracy and Minet have done as much as they can within the court system to have Minet recognized. Tracy has drawn up legal papers willing guardianship to Minet should she die, and Minet does have joint custody, which allows her to make medical, school and other decisions for the boys in Tracy's absence. Still, her rights do not supersede Tracy's, nor is she entitled to any custody arrangements should the couple break up. The two women feel their family doesn't get the respect it deserves.

  "It pisses me off," Minet says. "It's just not fair. I do everything Tracy does and I'm not seen as an equal."

Both sides of the gay adoption debate in Louisiana seem to have reached a tentative truce in maintaining the status quo. Kenny Tucker, chairman for Forum for Equality Louisiana, wants to educate the public about family diversity and gay parenting, but he considers the present adoption laws adequate for now.

  "The system's not perfect, but it allows children in need of homes to be housed in loving homes that happen — happen — to be run by gay individuals and gay couples," Tucker says.

  Gene Mills, executive director of the Louisiana Family Forum, a lobbying group that describes itself as a "voice for traditional families in Louisiana," says there's no way for a joint gay adoption to take place in Louisiana at this time. He doesn't see the state legislature moving either to permit or forbid gay adoption.

  "If we were to encounter a move to expand the definition of either marriage or adoption to include nondiscrimination on the basis of sexual orientation, which in my mind would sexualize that decision or that adoption, we would oppose it," Mills says.

  In fact, this past week Rep. Jonathan Perry, R-Abbeville, introduced a bill that says when a child is born in Louisiana and adopted in another state, the adoptive parents still must abide by Louisiana adoption law — only a single parent or a married couple can have their names on the birth certificate. Perry submitted the LFF-supported bill in response to a recent ruling in U.S. District Court that ordered the Louisiana Office of Vital Records to issue a new birth certificate, which would list the names of two men who finalized an adoption of a Louisiana child in New York. The case is currently under appeal.

  Last week, the New Orleans City Council unanimously passed a resolution expressing its opposition to Perry's bill. Council vice president Arnie Fielkow, who introduced the measure, says the state bill puts up more roadblocks to the adoption process at a time when the need for adoptive parents, regardless of sexual orientation, is high.

  "I know of no study that says a heterosexual couple can raise a child better than a gay couple," Fielkow says.

  In a state that has already declared same-sex marriage and civil unions illegal, changing the state's adoption laws isn't a fight Tracy and Minet feel they can win. The couple has researched and discussed the possibility of mounting a court challenge, but they're afraid state legislators might respond to any change instituted by the courts by abolishing gay adoption completely — by couples or individuals.

  "If we aggressively pursue it, then we could be part of that law," Tracy says.

  And that's not something this family of four is willing to risk.