LGBTQ Family Challenges: Adoption, Foster Care, Surrogacy, and More

Abstract

With the evolution of predominant values and mainstream culture, the definition of 'family' is constantly changing in the United States. Due to social transformations brought by the decline in heterosexual marriage and the growth of working females, the nuclear family, the family formed by heterosexual parents with their biological child or children, lost its dominant status in family forms. Moreover, the chosen family, which covers a wide range, from the adoptive family to same-sex parents with their surrogate children, expands remarkably in the recent years, forcing the public to reconsider the diversity of family forms. However, when LGBTQ couples try to form a family, they may have to confront a number of discriminations and inequalities that married heterosexual couples will not face. This paper aims to explore how LGBTQ couples are shaped within and against legislation, social structures, and conventional moral values, by focusing on pathways to parenthood and challenges they have to face.

What is a family?

When America was founded, a family referred to a huge group which consisted of all the relatives who live nearby or all the members in one household. A few decades later, the nuclear family, which referred to a different-sex couple with their biological child or children, became the dominant family form in the United States. Fast forward to the present day, American families are increasingly diverse, by defying categorization. Due to advanced technology, there are abundant nontraditional ways such as adoption, foster care, surrogacy, and donor insemination for people, in particular, LGBTQ people (lesbian, gay, bisexual, transgender or queer), to gain parenthood and form a family.

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Nowadays, approximately 4.3% of adults identify themselves as LGBTQ. Like other parents, LGBTQ parents can also be married, divorced and cohabitating. Recent data prove that gays and lesbian cohabiters as stable as heterosexual cohabiters. Notably, LGBTQ marriages break up at half the rate of heterosexual marriages (Gates 2015). They also want to have a child or children. Although the family seems not to depend on consanguinity or marital relation, LGBTQ people can hardly shrug off pressures caused by legal hurdles and social stigma when they want to form a family. In addition, bioethics such as reproductive justice is also a society's constraint arm toward LGBTQ people. This paper aims to find out inequalities in family creations, in order to fully understand the reasons why it is so hard for LGBTQ people to form a family and to explore the depth behind the term 'family'.

PATHWAYS TO PARENTHOOD

Stereotypes and bias

First of all, “how the sexual orientation of parents matters children’s gender identity and sexual development” is one of the most frequently mentioned questions when people discuss whether LGBTQ couples can have a child or not. Many people tend to believe that children who are raised by LGBTQ parents are more likely to be LGBTQ themselves. In 2004, The American College of Pediatricians (ACP) adopted the following statement:

'...This research has revealed that children reared in homosexual households are more likely to experience sexual confusion, engage in risky sexual experimentation, and later adopt a homosexual identity… Based on the average found in the following nine studies, 14% of children raised by homosexual parents develop homosexual or bisexual preferences' (Nestor 2004).

It's seemingly reasonable because most parents have the most primary influences on their children. Although the American Psychological Association (APA) also posted an official declaration to illustrate that no scientific basis could conclude that children's sexual orientation was influenced by parental sexual orientation (Patterson 2006), suggestive statements like the above one made by ACP have misled a large number of people to believe that same-sex parents are rearing disproportionate numbers of homosexual children.

On the other hand, many people believe that parental ability is relevant to parents' sexual orientation. Just like what Functionalists believe, male and female should perform different roles in order to help society function well. The female role is traditionally assigned “the mother” who is nurturing enough to take good care of children. By comparison, the male stereotypic role is to be a career-focused, competitive and brave “father”. In this case, some critics say that the absent role of father or mother will cause some negative influences on children growing up in a home with same-sex parents. However, parenthood is not a gendered experience. As a matter of fact, there is no specific division of doing housework in LGBTQ families. Lesbians tend to share household labor equally while gay men are more likely to specialize housework labor (Stacey and Biblarz 2001). No matter how they divide household labor, the main purpose of division of household labor is to ensure a stable and lasting home life for themselves, and their child or children. Furthermore, many sociology researchers have proved that sexual orientation cannot influence on person’s capacity to be a good parent. According to the announcement made by The American Academy of Pediatrics, 'not a single study has found children of gay or lesbian parents to be disadvantaged in any significant respect relative to children of heterosexual parents” (Friday, 2002). In another words, parents' sexual orientation has nothing influential on emotional attachment and empirical support which children can get from their family.

The American Academy of Pediatrics has confirmed that the major standards for being a good parent should be time spent with their child or children, family stability, personal economic condition, and so on. According to Invisible Inequality: Social Class and Childrearing in Black Families and White Families written by Annette Lareau, one of the most determining influence on child rearing is social resource that parents are able to provide for their child or children. The term social resource here is not simply as income or wealth, but the total distribution of human capital like skills and work experience, cultural capital like familiarity with a certain social environment, social capital like social network connection, and regular money. Lareau began her study based on interviews and observations of 12 white and black families out of 88 children at the age of 8 to 10, in different social class. Each interview was conducted in 1989 - 1990, and all lasted over an hour and a half. As a result of the study, the class position has great influences on critical aspects of family life: organization of daily life, cultural logic, language use, and kin ties (Lareau 2002). Specifically, middle- or upper-class parents generally can offer more these above capital to their child or children than people in working class or people in poor areas. In this case, Lareau concluded that social class has much more influences on child development than race dose (2002). Since insufficient social resources brought by poverty and lower social class can be seen as one of the biggest dangers to children, there is also a possibility for children raising by heterosexual parents to live in a bad living condition without enough emotional attachment and social resources. Thus, people cannot simply backout the right for LGBTQ people to become parents by denying the possibility of them to be a good parent.

“One True Family” Myth and Social Stigma

Undoubtedly, all cultures and societies emphasize the importance of kinship, that is, the relationship which is determined by consanguinity and marital relation. Joshua Gamson, the author of In Modern Families: Stories of Extraordinary Journeys to Kinship, uses six distinct stories of unconventional family creations, such as in vitro fertilization and multi-parent family, to demonstrate how self-determination challenges models of kinship and question the ideology of biological supremacy. Gamson criticizes the “One True Family” myth which states that the only true family structure should contain heterosexual parents and their biological child or children; moreover, Gamson consider 'One True Family' myth a way 'serves to justify the denial of equal respect, support, rights, and resources for all kinds of families'(2015). However, unfortunately, a large number of people hold this myth and regard people treated like family members who are not real biological relatives as “fictive kin”. In this case, 'One True Family' myth imperceptibly delays the recognition of new models of kinship and the process of creating a well-established legal system for not only LGBTQ people, but also the heterosexuality.

Additionally, in 1995, Karen March, a professor in the department of sociology and anthropology at Carleton University, made an open-ended interview questionnaire on reunion outcome. After analyzing the feedbacks from sixty reunited adult adoptees, Karen March stated that there was a quite strong and obvious relationship between the social stigma of adoption and motivation for search and reunion. Basically, over half of the respondents reported that they could hardly not to doubt their rightful position within the adoptive family structure. That is to say, they could not regard themselves as a 'real' family member, due to the lack of biological kinship ties. Most adoptees believed that they would be more socially acceptable when they reunited with their biological family (March 1995). Respondents' idea can be explained by Goffman's concept of social stigma, that is, a type of social discriminations against particular individuals with abnormal social traits or unique physical features (1963). In order to have social acceptance and gain self-identification, these people have to find ways to manage their abnormal social traits and reduce its disruption of others' sensibilities. Both adoptive family and LGBTQ can be viewed as a rare social trait; moreover, in most cases, rare refers to deviant or abnormal. Thus, respondents wanted to use reunion as a way to neutralize their social stigma. Searching for the reunion is the result of the dual function of social stigma of adoption and that of LGBTQ people, abundant people tend to “selectively” believe that it is more difficult for children raising by LGBTQ family gain kinship, acceptance, or security than children raising by nuclear family or children adopted by heterosexual couples. Then, people try to avoid LGBTQ couples to be parents through adoption.

Legal Hurdle for LGBTQ People

It’s tricky to say that it’s much easier for heterosexual parents (who can give birth to a child upon most occasions) to use adoption or surrogacy than LGBTQ couples (who can hardly have a child without the help of technology or government). Due to the rapidly increasing need for adoptive homes, an obvious decrease has taken place in anti-homosexuality prejudice. However, it doesn't mean that there are no obstacles to equal treatment anymore. Outdated laws which focus on family configurations do hurt LGBTQ people who want to form a family.

First of all, there are 3 main accesses to individual adoption: (1) a public child welfare or adoption agency; (2) a private adoption agency with government permission; and (3) consensual arrangements between private parties such as inter-country adoptions (Bitler and Zavodny 2002). Nevertheless, not all the states in U.S. permit LGBTQ individuals to adopt. Presently, Florida is the only state which legally bans LGBTQ people from adopting according to the statute. FLA. STAT. CH. 63.042(3). And, whether or not LGBTQ individuals are able to adopt within specific state may also depend on which county they live in. States which own policies friendly to LGBTQ people are geographically dispersed in the United States. LGBTQ people are more likely to live in prosperous states such as California, yet states like Mississippi, Wyoming, and Alaska have a high rate of children raising by LGBTQ family (Gates 2015). The most remarkable thing of individual adoptions is that the application must be examined and approved by a court, usually after a home investigation by children welfare agency in that particular state. “Best interest of the child” is the most basic and major standard for approving an adoption. But, determining what is the best interest of the child is quite subjective and prejudiced. Basically, faith-based adoption agencies can choose not to place child or children with LGBTQ couples, with the help of Trump administration. In 2018, The House Appropriations Committee published an amendment which claimed that adoption agencies with religious conviction could have a legal right to refuse LGBTQ couples, in order to reduce the possibility of conflicts between moral convictions and work ethic (Cahill and Makadon 2017). Thus, states like South Dakota successfully “justify” discrimination based on sexual orientation in adoption. Although there are some dissenting voices, for instance, Michigan stopped funding adoption agencies which refuse to provide services for LGBTQ parents, policy reform created by President Donald Trump does intensify contradictions and inequality between the heterosexual and LGBTQ people.

Secondly, second-parent adoption, is also a possible legal way for couples to adopt her or his partner’s biological or adoptive child or children, regardless of whether they have legally recognized relationship to the first legal parent (Friday 2002). Most state adoption statutes in the U.S. allows a married person to adopt his or her spouse’s child without terminating the other spouse's legal right for parenting. However, an unmarried couple is not allowed to adopt in this way. Since most states didn't recognize same-sex marriages before June 26, 2015, second-parent adoption was not an available legal procedure for LGBTQ couples to adopt a child or children. Many LGBTQ couples were forced to take the third approach to gain parenthood, that is, assisting reproduction including surrogacy, and donor insemination for people.

Although, at a glance, surrogacy seems to be a win-win choice: a financial disadvantaged surrogate mother gains sufficient money for living while a couple gets their long-desired biologically baby, the whole system of commercial surrogacy is not transparent enough, including potential legal issues. Many states of the United States only recognize altruistic surrogacy; moreover, any kinds of commercial surrogacy agreements are illegal. Since this could be a lengthy procedure for promoting altruistic and not commercial surrogacy, not only LGBTQ couples but also heterosexual infertile couples can hardly gain parenthood in this way.

EXTRA ECONOMIC COSTS FOR LGBTQ PEOPLE

Except for discrimination against LGBTQ people and the social stigma of untraditional models of kinship, LGBTQ couples also have to face economic burdens that most heterosexual parents do not. One of the biggest expenses is payment for the assisting reproduction such as surrogate fee, the costs of adoption, and program application. According to the data collected by Adoptive Families Magazine, in 2012-2013, the average total cost of adopting a child from the legal adoption agency was $39,966. The average legal fees including program application were over $20,000. If someone uses surrogacy to gain parenthood, the average birth mother expense was $6,240 (2015). In addition to the above fees, there are also several seemingly insurmountable additional economic obstacles for LGBTQ families. Low-income LGBTQ parents suffer a lot, who are more likely to be people of color. In this case, they may have to face another separate set of barriers as well at the same time.

Unequal Taxation and Undue Burdens

LGBTQ families need to pay higher taxes than traditional kinship model family since they lose vital deductions and exemptions. Just like what mentioned before, LGBTQ parents usually lack legal ties to their adoptive child or children. That is to say, it is almost impossible for them to have child-related deductions or exemptions (Friday 2002). Moreover, they often have no way to receive the tax advantages of filing joint federal tax returns due to their legally unrecognized married status.

Hard to find a welcome school

It is definitely heartbreaking to say that LGBTQ parents can hardly find a welcoming school for their children. Some public schools may choose not to enroll children raised by LGBTQ parents. Even those schools admit children in LGBTQ families, around 8% of high school students report being LGBTQ. Roughly 30% of them had attempted suicide since they were more than twice likely to be bullied than straight students in public schools. What's worse, children raised by LGBTQ families also bear a higher risk of being bullied than straight students (Muñoz-Plaza, Quinn and Rounds 2002). Additionally, if LGBTQ parents choose to send their children to private school, the tuition fee is quite prohibitive since LGBT families cannot file jointly for tax. Only the parent who has the right to claim a “qualifying relative” can gain a deduction (American Adoptions 2015).

DISCUSSION

As mentioned above, some critics claim that the social traditions of the heterosexual family face big challenges since LGBTQ people use adoption and assisted reproduction technologies. As a result, the commercialization of family formation, that is, forming a family through commercial exchanges such as paying for gestational surrogates and adoption agency fee, will gradually erode the importance of “blood” ties. Because everything can be bought and sold, people can hardly notice what is the real thing needed to protect. Then, intimate life will disappear without trace. What’s much worse, there is a hidden regulation of society connivance: financially disadvantaged females (generally with lower level of education), particularly those from the third world countries, are more likely to be the gestational carrier and young females with higher education level and beautiful appearance are more likely to be the egg donor. Hierarchy intangibly occurs. Besides, many people question the rationality of assisting reproduction technology by saying that both egg donors and gestational carriers are at risk of serving for economically privileged people. In another word, assisting reproduction technology, as proof of objectifying women, is obliterate committed by the patriarchal society. The essence of assisting reproduction technology is the denial of equality. It is not only the inequality between women and men, but also the inequality between the rich and the poor. And, there is a possibility for abuse and exploitation of women.

Basically, the above arguments are somewhat biased. First thing first, commercial surrogacy does not refer to baby selling. Although it seems to be extremely macabre and inhuman, commercial surrogacy is usually regarded as an unlawful act around the whole world. To some extent, childbirth is too cost prohibitive to be introduced to the mass market. Then, every child in adoption agencies deserves a sweet home and love that only parents are able to offer. The number of children in adoption agencies who are waiting for gaining emotional security is much greater than the people who want to adopt a child. And LGBTQ individuals and couples are the most major part of people waiting to adopting a child or children. If the public and the institutions such as courts prevent people to build kinships through the commercialization of family formation just because they think this way of family formation is seemingly inhuman, the final result of this prevention is totally inhuman since it kills the steps of chasing a lasting home for those pitiful children in adoption agencies.

In addition, no one can repudiate that people with low socioeconomic status, in particular females with low socioeconomic status, have only a little power to decide what their life will be. They are too fragile to undertake the result of political reform and economic instability, especially at the era of global trade. Furthermore, everyone has to admit that if there is a profit motive, there will and must be a commercial exchange. For people who can hardly survive, surrogacy is just one kind of jobs, and there is no difference between being a gestational carrier, a typist, or becoming a sex worker. They can only be chosen, instead of making choices. There is a need to worry about obscure regulations for market-based family formation which may contain the possibility of female exploitation and human trafficking. However, there is no need to completely deny that commercialization can be the means of building a family. Avoidance of solving existing current problem is not a long-term resolution for preventing other potential problems. And, problems raised on the way of marching forward can be solved by the development. The wealth cannot use the uterus of financially disadvantaged females if the job security and social welfare become better. The regulations for market-based family-making will be sound once the inequality between homosexual parents and LGBTQ parents is solved. More is still yet to come. People should face the current issue and potential issues with optimism.

RECOMMENDATIONS AND CONCLUSION

For a long time, lesbian, gay, bisexual, transgenders, and queers have fought industriously for equal right in many aspects of family laws, such as marriage and adoption, in order to protect their not-easily-won kinships. Nowadays, a rapidly increasing of LGBTQ families forces governments and institutions to rethink what is the hidden meaning of building a family. Also, thinking about the question - how to integrate LGBTQ people into the subsistent family law protections - become more and more imperative. Even if there are several additional avenues toward to parenthood instead of giving the birth of a child, different legal hurdles force many LGBTQ people to give up the idea of having children.

Current society and laws do not completely recognize a very real fact that multiple distinct and new models of kinship exist. Now, it is time for governments and institutions to set up public policy based on facts, instead of animus. Except achieving comprehensive legally recognition of LGBTQ family, providing equal access to state-based economic protections and educational support services to LGBTQ families is no time to delay. If institutions can evaluate prospective adoptive parents according their ability to be a good parent, which covers a wide range, from financial situation to characteristics of personality, not to their sexual orientation, the United States will make a giant leap towards to realizing LGBTQ justice and equality.

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