The international legal framework of adoption rights of the LGBTQI+ community: status and key

Renato Guerrieri

Guyer & Regules, Montevideo

renato.guerrieri@guyer.com.uy

Italo Raymondo

Guyer & Regules, Montevideo

iraymondo@guyer.com.uy

Introduction

Adoption is a legal proceeding that allows an individual or couple to adopt a child who is not a biological relative, seeking social and family protection, and ultimately the wellbeing and best interest of the adopted child, by creating a family bond and giving adopting parents the obligations, duties and rights of parents.

For the LGBTQI+ community, in spite of the daunting challenges of the often lengthy, burdensome and emotional adoption proceedings itself, adoption is a relevant mechanism, and in many cases the only one, of constituting a family.^[1] This is in lieu of biological means in most cases, and with legal limitations and/or voids and cultural and/or economic barriers regarding other potential alternatives in many jurisdictions, such as donor conception including IVF, surrogacy, or co-parenting.

However, LGBTQI+ adoption is also legally limited across most jurisdictions worldwide. Pursuant to Equaldex reports, it is currently only explicitly legal for same-sex couples to adopt children in 39 countries and territories.^[2] These are, reportedly: Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Croatia, Cuba, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Israel (sole Middle Eastern country), Liechtenstein, Luxembourg, Malta, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa (sole African country), Spain, Sweden, Switzerland, Taiwan, Thailand, United Kingdom, United States and Uruguay. In 59 countries and territories the legality is reputed to be: ‘somewhere in between’, 52 where it is illegal, and 59 where the legal status is reputed to be ‘varied, unclear, or unknown’.

Even in the continents where LGBTQI+ adoption is mostly accepted, namely Europe and South America, its legitimacy is still a minority, with only 46 per cent and 42 per cent of countries recognising its legality respectively, and social and cultural stigmas against LGBTQI+ families and conservative views around family are still commonly witnessed. On the contrary, in Africa and Asia illegality prevails.

The timeline of LGBTQI+ adoption rights reflects a rapid legalisation process over the last three decades in most Western jurisdictions. This is aligned with: (1) a broader framework of transformation of the concept of family and its traditional models;^[3] (2) the conceptual and legal distinction between conception and filiation; and (3) studies and researches evidencing that LGBTQI+ families do not differ from ‘traditional families’ as a positive, healthy and supporting environment for the upbringing of adoptive children, being equally competent, warm, sensitive, involved and engaged parents,^[4] and also taking into account that the quality of relationships is much more relevant than its structure. Recent studies have further demystified unfounded yet common arguments against LGBTQI+ adoption such as a higher risk of raising LGBTQI+ children, paedophilia and discrimination.^[5] Such advances further represent distancing from the situation of previous LGBTQI+ generations for whom forming their own family seemed an impossible prospect.

However, there are still ongoing challenges. There have been complaints that family law in general terms could not be a fit subject for comparative study. This is because cultural bases differ significatively, there would be no compelling practical need for unification, and foreign legislation would not easily serve as models for transplantations.^[6] Nevertheless, ensuring that adoption laws and practices are aligned and reflect the principles of equality and non-discrimination should prevail, as to uphold fundamental human rights.

International legal framework

The Convention on the Rights of the Child, adopted by the United Nations General Assembly in 1989, does not explicitly mention adoption by LGBTQI+ individuals or couples. However, in its Articles 2, 3 and 21, it does envisage general principles that are widely interpreted as supportive of non-discrimination and the best interests of the child, both of which have been used by international bodies and courts to support adoption rights for the LGBTQI+ community.^[7]

In addition, several UN principles and instruments can and are in fact used to support that neither gender identity nor sexual orientation should be a barrier to adoption, particularly considering equality, non-discrimination and the best interests of the child. Among other relevant legal instruments, the Yogyakarta Principles (2006) are a highly influential set of international human rights principles relating to sexual orientation and gender identity. Principle 24 envisages that: ‘States shall take all necessary legislative, administrative and other measures to ensure access to adoption or assisted procreation without discrimination on the bases of sexual orientation or gender identity’.

Despite this international legal framework, its application remains inconsistent worldwide. Significant disparities persist, and in several jurisdictions, legislation and practices stand in stark contrast to these basic human rights standards.

Countries with full adoption rights for the LGBTQI+ community

Various jurisdictions have been leading lights for LGBTQI+ individuals and couples, usually after highly debated constitutional, legislative and/or jurisdictional amendments.

For instance, Uruguay is a small yet leading jurisdiction in terms of inclusion and equality where, since Law No 18.590 was enacted in 2009, neither sexual orientation nor gender identity of the prospective adopting parents restricts their rights, and no distinction is done neither between male and female, nor single and couple prospects. Any candidates have an equal opportunity of seeking adoption.

In other cases, legislation in countries such as Netherlands (since 2001), Sweden (since 2003), Spain (since 2005), Belgium (since 2006), Argentina (since 2010), France (since 2013), and Chile (since 2022) make no distinction between for LGBTQI+ candidates when it comes to adoption.

In a scenario of less clear legislation, in Brazil, a 2010 Supreme Court of Justice decision underlined that that neither the Statute of Children and Adolescents, the Civil Code, nor the Federal Constitution, define any restrictions as to gender, marital status or sexual orientation of the adopter. And in Africa, a noticeable (and exceptional) case has been South Africa, where following the Constitutional Court’s Du Toit and Another v Minister for Welfare and Population Development and Others 2002 ruling, same-sex couples were granted the ability to jointly adopt children.

Countries with partial restrictions

Some countries have so-called intermediate legal solutions, such as allowing: only foster or stepchild or second parent adoption (eg, affirmed in Hong Kong and in some prefectures of Japan); couples’ adoption only (eg, in Thailand); single parent adoption only (eg, in Bulgaria, Poland and Ukraine); or single parent adoption only in special or exceptional circumstances (eg, instance, in some Australian states and territories), or on a case-by-case basis (eg, in Taiwan).

Countries with ambiguous solutions

In several countries, there are constitutional and/or legal restrictions in place, yet there are recent jurisdictional rulings with a more favourable treatment. Such is the case of Ecuador, where its Constitution sets states: ‘Adoption shall only be permitted for different-sex couples’ (Art 68), yet on a May 2018 ruling, its Constitutional Court ordered the Civil Registry to register a seven-year-old girl as the daughter of a lesbian couple, pursuant to children’s rights. And in Singapore, a landmark 2018 ruling by its High Court allowed a gay couple to adopt their son who was conceived through a surrogate in the United States on the grounds of prioritising child welfare.

In other countries, reality acquires a new level of complexity: the lack of nationwide regulation leads to diverse criteria in different geographical regions, as it occurs in Mexico. There, adoption is permitted for same-sex married couples in Mexico City and 21 of its 31 states.

A similar situation occurred in the United States until 2017. Some states granted full adoption rights to same-sex couples, while others banned it or only allowed one partner in a same-sex relationship to adopt the biological child of the other. The US Supreme Court of Justice then reversed an Arkansas Supreme Court ruling which allowed a law listing parents by gender on birth certificates to stand. The new ruling allowed both same-sex spouses to be listed on birth certificates. These court rulings made adoption by same-sex couples legal in all states. However, there are still state-level discretion and differences in relation to relevant aspects such as second parent adoption, foster care non-discrimination law, foster care parent training required, parental presumption on same-sex couples, and laws permitting discrimination in adoption and/or foster placement.

In other cases, administrative barriers and eligibility challenges may arise. For example, when there are no legal restrictions in place for parent adoption only regardless of sexual orientation, yet eligibility requirements include abstract ones such as good moral character, which may lead for prospective LGBTQI+ adopters to be reputed as unfit to adopt (for instance, in Philippines); or when opposite-sex couples have been given priority over same-sex ones (as is reported to occur in Israel).^[8]

Lastly, even in countries with full adoptive rights, there may be some restrictions in place in relation to international adoption, leading to complying with limitation and terms envisaged by the countries of origin. This has included cases of repatriation and of change of prospect adoptive parents.

Countries where LGBTQI+ adoption has no legal recognition or is explicitly prohibited

Many jurisdictions across the world explicitly ban LGBTQI+ families and even criminalise homosexuality. In these jurisdictions – including most of the African and Asian continents and the Muslim world – there are not even open discussions about adoption rights for the LGBTQI+ community.

Some jurisdictions include explicit bans. Such is the case of Honduras (among others), where its Constitution states: ‘It is prohibited to give children up for adoption to same-sex couples or civil unions’ (Art 116).

In Russia, there are recent additional legal provisions enacted against LGBTQI+ adoption, including banning individuals who have undergone gender-affirmation from adopting children or serving as legal guardians (2023), and prohibiting adoption of Russian children to countries which allow gender transition (2024).

Call for aligning adoption rights with principles of equality and non-discrimination

Ensuring that adoption laws and practices are aligned and reflect the principles of equality and non-discrimination is essential in upholding fundamental human rights.

Key international instruments such as the Universal Declaration of Human Rights, the Convention of the Rights of the Child and the International Covenant on Civil and Political Rights provide that no person should face discrimination based on their sexual orientation or gender identity, especially when it comes to forming a family.

However, despite the growing international consensus in that regard, national adoption laws remain uneven across the globe. In many jurisdictions, LGBTQI+ individuals and couples still face barriers to adoption.

Aligning domestic legislation with international human rights standards is not only a legal imperative, it is a moral one. Every child deserves a family, and every qualified person deserves the opportunity to become a parent, free from unfair exclusion.

Outdated and/or discriminatory legislation should be revised in order to implement inclusive policies that recognise diverse family structures. This includes explicitly allowing adoption by LGBTQI+ individuals and couples, removing arbitrary barriers, and ensuring that all adoption procedures prioritise the best interests of the child.

Beyond any legal amendment, countries should additionally invest in public education, judicial training and anti-discrimination measures to create environments in which equality is not only reflected in law but also practiced.