Blackwell Publishing IncMalden, USAFCREFamily Court Review1531-2445© Association of Family and Conciliation Courts, 2006January 2006451Original Article
FAMILY COURT REVIEWBradley / MAKING A MOUNTAIN OUT OF A MOLEHILL
WINNER OF THE AFCC/HOFSTRA LAW 2006 FAMILY LAW
STUDENT WRITING COMPETITION
Making a Mountain Out of a Molehill: A Law & Economics Defense of Same-Sex Foster
Care Adoptions
By: Richard R. Bradley1
In 2002, over 129,000 children languished in the United States foster care system
awaiting adoption by willing and able individuals.2 When last measured by the National Center
for State Courts in 1992, 127,441 children were adopted either domestically or internationally.3
Over the last sixty years, the number of adoptions has fluctuated dramatically from just over
50,000 adoptions in 1944 to a peak of 175,000 adoptions in 1970.4 Assuming that the adoption
system is a market and that the number of children in foster care represents supply of adoptable
children and the number of adoptive families that can overcome the enormous barriers to entry
erected by judges and legislators represents demand, then currently the supply of adoptable
children exceeds the demand for adoptable children.5 The adoption process is unduly
burdensome requiring extensive amounts of time and money in order to secure the legal rights to
1
J.D. expected 2007, University of Houston Law Center, BBA (Finance) 2003, BA (Economics) 2004, University
of Texas at Austin. The author would like to thank Professor Darren Bush and Professor Ellen Marrus for their
insightful comments. The author would also like to thank his parents, Rick and Gail, and his sister, Whitney, for all
their love and support.
2
JENNIFER E. MACOMBER ET AL., URBAN INST., FOSTER CARE ADOPTION IN THE UNITED STATES 1 (2004),
www.urban.org/UploadedPDF/411108_FosterCareAdoption.pdf.
3
Infoplease, Adoption Trends, http://www.infoplease.com/ipa/A0881281.html (last visited Nov. 15, 2005)
[hereinafter Trends].
4
Adoption Institute, Fact Overview of Adoption in the United States,
http://www.adoptioninstitute.org/FactOverview_print.html (last visited Nov. 15, 2005) [hereinafter Fact Overview].
5
See N. GREGORY MANKIW, PRINCIPLES OF MICROECONOMICS 63 (Harcourt Coll. Publishers 2d ed. 2001) (noting
that where supply and demand intersect in a market signifies the market’s equilibrium. Markets naturally move
towards equilibrium unless there are governmental policies that prevent them from doing so. In this market, the
quantity of children supplied to the market via foster care exceeds the quantity demanded, thus resulting in a surplus
of the good (children). Deconstructing barriers to this market that are created through regulation, statute, or judicial
decision should increase quantity demanded through increased entry and, thus, result in this market naturally moving
towards a state of equilibrium); see also Darren Bush, Caught Between Scylla and Charybdis: Law & Economics As
a Useful Tool for Feminist Legal Theorists, 7 AM. U. J. GENDER SOC. POL’Y & L. 395, 398-99 (1999) (citing
ANTHONY T. KRONMAN & RICHARD A. POSNER, THE ECONOMICS OF CONTRACT LAW 2 (1979) (arguing that the
existence of a market -- a locus of opportunities for mutually advantageous exchanges -- facilitates the allocation of
the good or service in question to the use in which it is most valuable, thereby maximizing wealth of society)).
1
protect, nurture, and love a child. The adoption process, in general, yields costs that often exceed
$40,000 and last many months or years in duration, thus creating an enormous barrier to entry. 6
This barrier to entry serves as an important explanation for the number of adoptable children that
remain in the foster care system.7
Despite an American Psychological Association categorization of homosexuals as
mentally deficient as recently as 1973, same-sex couple adoption emerged to the forefront of
society’s consciousness in response to the apparent lack of demand for adoptable children in
1987.8 Courts, reflecting the values espoused by society, have generally been reluctant to extend
unfettered legal rights of adoption to same-sex couples or individuals. The court system
sporadically acknowledges the right to second-parent adoption, similar to stepparent adoption, to
same-sex couples, which imposes many costs.9 Many jurisdictions continue not to allow samesex couples to adopt children under any circumstances for various reasons.10 This paper will
focus on the economics of affording same-sex couples the right to adopt children in the foster
care market, akin to the rights afforded heterosexual married couples. Any discussion about the
adoption rights of homosexuals must incorporate the simmering debate currently transpiring over
6
Adoption.com, The Costs of Adopting, http://costs.adoption.com/articles/the-costs-of-adopting-a-factsheet-forfamilies.html (last visited Nov. 15, 2005).
7
See Child Welfare Information Gateway, Gay and Lesbian Adoptive Parents: Resources for Professionals and
Parents (2000), http://www.childwelfare.gov/pubs/f_gay/f_gay.cfm (citing 1997 National Adoption Information
Clearinghouse (NAIC) findings that acceptable adoptive families were found for 20% of the total number of
children in foster care. This figure underscores the importance for opening the adoption market to new entrants. It is
entirely possible that homosexuals will not necessarily seek to adopt primarily from the foster care adoption market
given the desire by most families to adopt newborns or infants. However, legislatures can open the market to
homosexuals and devise economic incentives to create a new equilibrium whereby international adoption and other
methods of adoption are not as attractive as foster care adoption. Decreasing the number of children in the foster
care system should be a priority in the adoption context. Unfettered homosexual adoption may not completely
equilibrate the adoption market for foster care children, but the possibility exists for the number of children
languishing in the system to decrease drastically).
8
Eleanor Michael, Note, Approaching Same-Sex Marriage: How Second Parent Adoption Cases Can Help Courts
Achieve the “Best Interests of the Same-Sex Family,” 36 CONN. L. REV. 1439, 1453 (2004).
9
William Meezan & Jonathan Rauch, Gay Marriage, Same-Sex Parenting, and America’s Children, 15 FUTURE OF
CHILDREN, Fall 2005, at 97, 100, available at http://www.futureofchildren.org/usr_doc/06_FOC_152_fall05_Meezan-Rauch.pdf.
10
Id.
2
the right to marriage for homosexuals. Many of the adoption rights and benefits discussed are
inherent in the legal recognition of marriage. Given the phenomenon that the supply of adoptable
children, as evidenced by the large number of children in U.S. foster care, exceeds the demand
for adoptable children in the United States, regulators should: first, recognize, to some degree,
the union of homosexual couples and, then, afford them the adoption rights heterosexual couples
presently enjoy. It is my conjecture that enacting legislation to further this purpose would serve
to create a wealth maximizing solution whereby the winners (society) compensate the losers
(adoptive homosexual partners) through the removal of the barriers to entry in the adoption
market and still increase their marginal utility.
1. Background Adoption Information
Adoption characterizations include international, foster care, private, stepparent, and nontraditional adoptions, including trans-racial adoptions.11 International adoptions are, not
surprisingly, adoptions of children born outside of the United States by citizens of the United
States, usually through an independent adoption agency or through adoption facilitators.12
During the fiscal year of 2004, China, Russia, Guatemala, and South Korea were the top four
foreign countries in which prospective parents sought to adopt children.13 International adoptions
comprise 5% of all adoptions.14 Adoptions in which children cannot be reunited with their
biological parents for safety or legal reasons and reside in the foster care system are classified as
foster care adoptions.15 The National Adoption Information Clearinghouse estimates that 15.5%
11
Adopting.org, How to Adopt, http://www.adopting.org/adoptions/types-of-adoption.html (last visited Mar. 6,
2006).
12
Adoption.com, Types of International Adoption, http://international.adoption.com/foreign/types-of-internationaladoption.html (last visited Mar. 6, 2006).
13
Trends, supra note 3.
14
Bridget M. Hubing, International Child Adoptions: Who Should Decide What is in the Best Interests of the
Family?, 15 NOTRE DAME J.L. ETHICS & PUB. POL’Y 655, 660 (2001).
15
Fact Overview, supra note 4.
3
of all adoptions in 1992 were foster care adoptions.16 Private adoptions are arranged by either
for-profit or non-profit adoption agencies that are state licensed and seek to match adoptable
children with deserving families.17 Stepparent adoptions involve the adoption of a child by a
stepparent without the biological parent relinquishing their rights.18 In 1992, 42% of all United
States adoptions were of the stepparent variety.19 Finally, trans-racial adoptions, comprising 8%
of all adoptions in 1992, involve the adoption of children by parents who are not of the same race
or ethnicity as the child.20 Adoption processes vary from jurisdiction to jurisdiction. This paper
will also focus on the economics of only allowing second-parent adoptions for homosexual
partners in the foster care market.
2. Current Procedures for Homosexual Adoption in Other Jurisdictions
As previously mentioned, homosexual couples may only obtain legal rights to a child
through the second-parent adoption procedure, which is a judicially created adoption method
derived from the heterosexual stepparent model where the non-marital partner of a child’s legal
parent may adopt the child, without requiring the biological parents to relinquish parental rights
and responsibilities.21 Many jurisdictions in the United States do not allow homosexual couples
to adopt at all.22 To combat the inability to adopt, many homosexual couples resort to alternative
methods for adoption, such as international adoption, the use of artificial insemination
procedures, and single - parent adoption prior to entering into a homosexual relationship.23
16
Id.
See Seth A. Grob, Adoption Subsidies: Advocating for Children with Special Needs, 7 U.C. DAVIS J. JUV. L. &
POL’Y 83, 94-5 (2003).
18
Michael, supra note 8.
19
Adoption Statistics, Numbers & Trends (2006), http://statistics.adoption.com/information/adoption-statisticsnumbers-trends.html (last accessed Mar. 7, 2006).
20
Fact Overview, supra note 4.
21
Michael, supra note 8.
22
Id.
23
Felicia E. Lucious, Adoption of Tammy: Should Homosexuals Adopt Children?, 21 S.U. L. REV. 171, 173 (1994).
17
4
Recognition of parental rights for one of the individuals in the couple opens the door for the
other individual to adopt the child through the second-parent adoption process.
Many European nations take a more progressive stance in affording homosexual couples
adoption rights that are identical or substantially similar to those afforded heterosexual couples.
Norway, Denmark, Germany, and several other European nations have recognized the union of
homosexual couples as “registered partners.”24 This recognition aids in the facilitation of the
adoption process and allows the family to benefit from property rights, tax credits, inheritance,
Social Security, and other miscellaneous rights and responsibilities typically enjoyed by married
heterosexual couples.25 The Netherlands, Denmark, and Iceland currently allow same-sex
couples to adopt each other’s children as long as they are “registered partners.”26 The
Netherlands has gone one step further and allowed “registered partners” to adopt unrelated
children, thus mirroring the adoption rights that heterosexual couples enjoy.27 However, Norway,
Sweden, France, Spain and Germany prohibit homosexual adoptions outright despite recognizing
the union of homosexual couples.28 Spain, for example, passed the Stable Union of De Facto
Couples Law of 1998, which allowed heterosexual couples to jointly adopt children through the
second-parent adoption procedure.29 The legislation prohibited gay and lesbian couples from
adopting jointly or from adopting the other’s child.30 Despite Spain’s conservative stance, one
sect in Spain, practicing Catalan law, does not preclude a gay man or lesbian from adopting a
24
Harvard Law Review Association, Inching Down the Aisle: Differing Paths Toward the Legalization of Same-Sex
Marriage in the United States and Europe, 116 HARV. L. REV. 2004 (2003) [hereinafter Harvard].
25
Id.
26
Jessica A. Hoogs, Divorce Without Marriage: Establishing A Uniform Dissolution Procedure for Domestic
Partners Through a Comparative Analysis of European and American Domestic Partner Laws, 54 HASTINGS L.J.
707, 712-13 (2003).
27
Id. at 712.
28
Harvard, supra note 24.
29
Nancy D. Polikoff, Recognizing Partners But Not Parents/Recognizing Parents But Not Partners: Gay and
Lesbian Family Law in Europe and the United States, 17 N.Y. L. SCH. J. HUM. RTS. 711 (2000).
30
Id.
5
child as an individual, but the law presumes that married or unmarried heterosexual couples are
preferred over single or coupled homosexual adopters.31 The various stances taken by European
nations may serve as a benchmark, when combined with economic analysis, to effect change in
United States adoption policies.
3. The Existence of Market Failures in the Child Adoption Market
In doing a cost/benefit analysis of affording homosexuals the same adoption rights as
those afforded heterosexual couples, one must determine if a market failure exists in the foster
care adoption market. First, the characterization of this market must be the foster care market
consisting of individuals eighteen years old or younger as opposed to adult adoption. Second, I
must assume that adoptable children are a commodity whereby all children in foster care are
adoptable or homogenous. The assumption that the children are homogenous may be slightly
destabilized considering that some children in the foster care system suffer from extreme
emotional and physical disabilities and are currently in specially trained therapeutic foster
homes, which may affect their adoptability by homosexual adoptive families.32
A large number of children continue to endure a lack of permanency in the foster care
system, which characterizes the disequilibrium between the supply of adoptable children and the
demand for these adoptable children by able adoptive families.33 In addition, market failures
exist to the extent that because homosexual couples are often denied adoptive rights, these
couples seek alternatives via the international route or artificial insemination and then attempt
31
Id.
See generally Michael B. Mushlin, Unsafe Havens: The Case for Constitutional Protection of Foster Children
from Abuse and Neglect, 23 HARV. C.R.-C.L. L. REV. 199 (1988) (describing how many children in the foster care
system suffer from emotional and physical disabilities upon entering foster care. In addition, evidence is presented
as to physical and emotional abuse of foster care children perpetrated by their foster families).
33
See Roger J.R. Levesque, The Failures of Foster Care Reform: Revolutionizing the Most Radical Blueprint, 6 MD.
J. CONTEMP. LEGAL ISSUES 1, 4-6 (1995).
32
6
second-parent adoption, which only increases the burden on the system by flooding the market
with more children.34
The adoption “market” serves as a mechanism by which children are placed in situations
where they could maximize their utility. The movement of children from the foster case system
to the adoption “market” characterizes an increase in societal wealth, thus not a wealth transfer.
The increase in societal wealth stems from an increase in utility for the child through the
adoptive placement and the decrease in foster family subsidies, which allows for reallocation of
governmental funds. However, since many children continue to languish in the foster care
system and are not paired with a family willing and able to adopt, the adoption “market” fails to
allow these children to maximize their utility subject to the constraints of an available adoptive
family.
4. Denials of Adoptive Rights Cause Prospective Homosexual Families to Incur Significant
Transaction Costs
Because of the inability of homosexuals to adopt foster care children, both homosexual
and heterosexual families incur significant transaction costs that act as impenetrable barriers to
entry and leads to a less than optimal solution. These barriers create incentives for homosexual
couples to pursue alternatives, such as international adoption.35 Today, courts typically allow
child adoptions through the second-parent adoption process whereby one of the homosexual
partners must be the biological parent or have been granted adoptive rights as a single parent
adopter.36 Denying prospective homosexual parents the panoply of adoptive rights afforded
heterosexual couples is especially costly in three areas: intestate succession, health insurance and
34
Michael, supra note 8, at 1446.
Lisa Hillis, Note, Intercountry Adoption Under the Hague Convention: Still an Attractive Option for Homosexuals
Seeking to Adopt?, 6 IND. J. GLOBAL LEGAL STUD. 237, 246 (1998).
36
Ryan Nishimoto, Book Note, Marriage Makes Cents: How Law & Economics Justifies Same-Sex Marriage, 23
B.C. THIRD WORLD L.J. 379 (2003).
35
7
governmentally provided subsidies, such as Social Security survivor’s benefits, and on the wellbeing of the child.37
a. Intestate Succession
Laws dictate that if an individual fails to make a valid will, then the laws of intestate
succession are triggered, which are heavily biased towards traditional families consisting of one
man and one woman.38 In accordance with the Uniform Probate Code and all but two United
States jurisdictions, surviving non-marital partners do not receive intestate inheritance rights.39
Since the same-sex partner does not have legal rights to their partner’s assets, the survivor of the
relationship is placed at the mercy of the deceased partner’s relatives, who are considered the
legal heirs.40 Usually, the survivor must litigate their inheritance rights in the court system.41
Same-sex survivors must prove to the court their level of commitment to the deceased partner
since same-sex marriages are not recognized in virtually all United States jurisdictions.42 Some
courts refuse to recognize the inheritance rights of same-sex survivors even if the survivor can
present the proper combination of testamentary documents, lifetime transfers, and beneficiary
designations.43 Regardless of the outcome, litigation of an issue depletes the financial resources
of homosexual couples through usage of legal services. Since the assets are transferred to the
relatives of the deceased and the cost of litigation is prohibitive, many children are deprived of
37
Meezan & Rauch, supra note 9.
Marissa J. Holob, Note, Respecting Commitment: A Proposal to Prevent Legal Barriers from Obstructing the
Effectuation of Intestate Goals, 85 CORNELL L. REV. 1492, 1495 (2000) (citing Thomas M. Hanson, Note, Intestate
Succession for Stepchildren: California Leads the Way, But Has it Gone Far Enough?, 47 HASTINGS L.J. 257, 260
(1995)).
39
Meezan & Rauch, supra note 9.
40
Id.
41
Nishimoto, supra note 36, at 387 (illustrating that in the event that a will is ambiguous, homosexuals must litigate
inheritance rights in court by establishing a high level of commitment to the deceased. Many courts refuse to find
that the level of commitment between the deceased and the complainant is substantial enough to award inheritance
rights, thus resulting in an inefficient distribution of assets).
42
See id.; see also Michael, supra note 8, at 1439-40 (noting that Massachusetts is marrying same-sex couples as of
May 17, 2004, and that Vermont and Connecticut currently offer civil union status for same-sex couples).
43
Nishimoto, supra note 36, at 387.
38
8
the financial assets accumulated by the non-biological parent.44 These market inefficiencies,
though typically avoided by heterosexual couples through the contract of marriage, are not
resolved by private contract, since only Massachusetts will recognize the validity of the marriage
contract of homosexuals.45 Same-sex partners can create wills to prevent the triggering of
intestate succession laws.46 However, any ambiguities in the bequest will likely result in an
interpretation unfavorable to the surviving homosexual partner and the child, since the courts
continue to be reluctant to acknowledge the validity of same-sex relationships.47 Therefore,
substantial efforts must be made by an attorney trained in wills and estates to craft an airtight
will, which requires significant financial contributions by the surviving homosexual partner for
such services.48 Additional contributions paid by the surviving homosexual partner deprive the
child of the financial capital necessary to stimulate development. These increased costs only
exacerbate the cost prohibitive nature of adoption by homosexual partners.
Society also bears the high transaction costs associated with intestate succession.
Preventing the children of same-sex parents from receiving the transfer of wealth from the nonbiological parent increases the risk that the child’s needs will not be met. Failure to meet the
child’s needs will likely result in the family seeking governmental welfare assistance, which
imposes costs on society. In addition, allowing the relatives of the deceased to receive financial
assets at the expense of the child of the nuclear family is not a socially efficient distribution of
assets.
The benefits associated with the current state of intestate succession are characterized by
the switching costs of including same-sex partners as legal heirs. In order to allow same-sex
44
Id.
Meezan & Rauch, supra note 9.
46
Nishimoto, supra note 36, at 387-88.
47
Amy D. Ronner, Homophobia: In the Closet and in the Coffin, 21 LAW & INEQ. 65, 68 (2003).
48
Nishimoto, supra note 36.
45
9
partners to become legal heirs, legislatures must draft and amend legislation, which would entail
costs associated with additional sessions of Congress. Society realizes a cost savings through
maintaining the status quo. In addition, recognizing same-sex partners as legal heirs begins to
chip away at the benefits solely afforded to heterosexual marriage. A majority of the citizenry of
the United States vehemently oppose homosexual marriage, as evidenced, for example, in Texas,
with 76% approving an amendment to the Texas Constitution banning homosexual marriage.49 It
is likely that the majority of citizens who oppose homosexual marriage would also oppose the
conveyance of marital benefits to homosexuals. Opponents fear that conveying a marital benefit
to same-sex partners is only the first step in the erosion of the sanctity of marriage.50 The
opposition to the conveyance of marital benefits coupled with numerous information
asymmetries associated with the well-being of the child, as discussed later, characterize the
substantial switching costs associated with conferring intestate succession rights to surviving
same-sex partners.
b. Health Insurance and Other Governmentally Provided Subsidies
Unencumbered child adoption rights also serve to mitigate high transaction costs
associated with providing health insurance and receiving governmental subsidies like Social
Security survivor benefits. Legally recognized adoptive rights for both same-sex partners allow
49
State Proposition Results: Constitutional Amendments, HOUS. CHRON., Nov. 9, 2005, at 1, available at
http://www.chron.com/cs/CDA/ssistory.mpl/elect2005/3448444 (last accessed Nov. 17, 2005); see also Gay
Marriage Dealt Setback in 2 States (2006), http://www.rainbowguide.com/news/070606-1.php (last accessed Sept.
29, 2006) (noting that highest state courts in New York and Georgia have announced holdings in furtherance of the
anti-gay marriage agenda. The New York Court of Appeals ruled 4-2 that New York’s law affording marriage only
to a man and a woman was constitutional. After three-quarters of the voters in Georgia approved a ban on gay
marriage, the Supreme Court of Georgia unanimously held that the ban was constitutional and unambiguous upon a
challenge stating the ballot language, combining civil unions and gay marriage, was misleading and confusing.
Currently, high courts in Washington and New Jersey are deliberating gay marriage cases and several other states
have gay marriage cases percolating through the lower courts); New York Court Refuses to Recognize Same-Sex
Marriage (2006), http://www.lambdalegal.org/cgi-bin/iowa/cases/decision.html?record=1981 (last accessed Sept.
29, 2006) (illustrating that in the November 2004 election cycle, ballot measures in eleven states successfully
banned gay marriage).
50
A. Jean Thomas, The Hard Edge of Kulturkampf: Cultural Violence, Political Backlashes and Judicial Resistance
to Lawrence and Brown, 23 QUINNIPIAC L. REV. 707, 708-09 (2004).
10
the family to realize the benefit of cost savings associated with health insurance. Because many
states have erected barriers (statutory, judicial, or regulatory) preventing homosexuals from
adopting, only the biological parent or the parent who was originally granted adoptive rights
prior to the commencement of the homosexual relationship has legally cognizable rights to the
child.51 The child may only be a dependent for health insurance purposes of the parent with the
legally cognizable rights.52 United States courts require that one person insuring another person’s
life must have an insurable interest in that life at the time of the loss.53 Furthermore, even if the
interest exists, a policy obtained without the knowledge and consent of the insured is contrary to
public policy and void.54 However, since the child is a minor and lacks the capacity to contract,
an attempt by the non-biological parent to insure the child is not necessarily void.55 Nevertheless,
United States courts have only extended insurable interests to close relationships like husband
and wife, parent and child, and grandparent and grandchild.56 Courts refuse to extend the interest
any further.57 Since the non-biological parent does not have any legal rights to the child and is
not considered a “parent” legally, then it would follow that the non-biological parent does not
have an insurable interest based on this technicality. The non-biological parent’s insurable
interest is at the mercy of the court and in many jurisdictions, the court is reluctant to recognize
homosexual rights.58 This is an enormous burden on homosexual couples because the partner
who does not have legal rights to the child may have a considerably cheaper policy with more
51
David P. Russman, Alternative Families: In Whose Best Interests?, 27 SUFFOLK U. L. REV. 31, 50 (1993).
Kif Skidmore, A Family Affair: Constitutional and Prudential Interests Implicated When Homosexuals Seek to
Preserve or Create Parent-Child Relationships, 89 KY. L.J. 1227, 1257 (2001).
53
KENNETH BLACK, JR. & HAROLD D. SKIPPER, JR., LIFE & HEALTH INSURANCE 198-99 (13th ed. 2000).
54
Id. at 198.
55
Id.
56
Id.
57
Id.; see also EVAN MILLER ET AL., EMPLOYEE BENEFITS FOR SAME-SEX MARRIED SPOUSES AND DOMESTIC
PARTNERS 10 (July 2005), http://www.bna.com/bnabooks/ababna/annual/2005/036.pdf (last accessed Nov. 18,
2005) (Virginia previously had a statute on the books that expressly forbid insurers from issuing policies covering
same-sex domestic partners, which has since been repealed on March 28, 2005, with an effective date of July 1,
2005); 2005 VA. ACTS CH. 871 (amending VA. CODE ANN. § 38.2-3525 (2005)).
58
Michael, supra note 8, at 1448.
52
11
extensive coverage than the partner with the legal rights to the child. Moreover, the situation gets
more complicated when the parent who has legal rights to the child dies. Then, the child no
longer receives coverage under his or her parent’s health care coverage and the surviving partner
cannot seek to cover the child under their policy.59 Therefore, the child is uninsured and eligible
for the social safety net provided by Medicaid to maintain the health of the child.60 This
phenomenon leads to an inefficient allocation of resources, which is detrimental to the wellbeing of the child because those resources are not allocated to education, recreation, or other
developmentally appropriate items.61 In addition, the implementation of Medicaid to cover
uninsured children places a large burden on the social welfare system, whereby society incurs
harm through possible wealth transfers via tax increases to fund Medicaid insurance for
uninsured children or through a reallocation of government funds to Medicaid that could finance
other socially beneficial programs.
Children currently residing with homosexual parents cannot receive Social Security
survivor benefits when one parent dies.62 The Social Security Administration promises that “98
of every 100 children could get benefits if a working parent dies.”63 However, if a homosexual
partner is not granted legal rights to the child, then these earned income benefits are not
59
BLACK & SKIPPER, supra note 53.
Jennifer M. Haley & Genevieve M. Kenney, Why Aren’t More Uninsured Children Enrolled in Medicaid or
SCHIP? (2001), http://www.urban.org/url.cfm?ID=310217 (last accessed Nov. 17, 2005).
61
See generally Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993); see also In re Evan, 583 N.Y.S.2d 997 (N.Y. Sup.
Ct. 1992); Sarah Tobias & Sean Cahill, No Child Left Behind? (2003),
http://www.thetaskforce.org/reslibrary/nochild.cfm (last accessed Mar. 11, 2006) (illustrating the pay inequities
between heterosexual men and women and homosexual men and women and the effect these inequities have on
reducing homosexual resources. Economist Lee Badgett used Census and General Social Survey Data to show that
gay men earned 17-28% less than heterosexual men).
62
Id. (noting that children and spouses of homosexuals do not receive Social Security benefits despite funding the
program like heterosexuals).
63
Social Security Administration, Survivors Benefits (SSA Publication No. 05-10084) (July 2006),
http://www.ssa.gov/pubs/10084.html#3 (last accessed Nov. 17, 2005).
60
12
bequeathed to the deserving child.64 The failure to allocate financial resources to the child of the
same-sex partner represents a negative externality upon same-sex couples.65 Instead, these
benefits are subject to probate proceedings whereby entitlements exist for the relatives of the
deceased same-sex partner, who may or may not seek to follow the wishes of the deceased.66
The Family and Medical Leave Act (FMLA) provides eligible employees up to a total of
twelve unpaid work weeks during any twelve month period to care for the birth and care of a
newborn child, for placement with the employee of a son or daughter for adoption or foster care
reasons, to care for an immediate family member (spouse, child, parent), or to take medical leave
due to a serious injury.67 However, same-sex families lack this benefit by employers.68 When the
non-biological parent of the child takes time off from their job, they are not covered by FMLA
and run the risk of termination from work.69 For instance, assume the child of the same-sex
relationship becomes terminally ill. The same-sex partner who is not the biological or adoptive
parent does not receive FMLA coverage to care for the child because they have not been granted
legal rights to the child. Perverse incentives exist for the same-sex partner to neglect caring for
the child or lose their job. Either option places a burden on society through the need for social
64
Tobias & Cahill, supra note 61 (shows that upon the death of the parent with legally cognizable rights, earned
income benefits are not passed onto the surviving spouse or the child. The benefits are diverted back into the Social
Security system).
65
See MANKIW, supra note 5, at 175 (noting that an externality is the uncompensated impact of one person’s actions
on the well-being of a bystander. Negative externalities, such as those mentioned above, create a market equilibrium
that does not maximize the total benefits to society, thus rendering the market inefficient).
66
Nishimoto, supra note 36, at 387; see also Vasquez v. Hawthorne, 145 Wash.2d 103, 33 P.3d 735 (Wash. Sup. Ct.
2001); Matter of Cooper, 592 N.Y.S.2d 797, 798-99 (App. Div. 2d Dep’t 1993); cf. In re Evan, supra note 61.
67
FAMILY AND MEDICAL LEAVE ACT, 29 U.S.C.A. § 2601 (1993).
68
See, e.g., Ross v. Denver Dep’t of Health and Hospitals, 883 P.2d 516 (Colo. App. 1994) (determined that the
denial of family sick leave benefits to care for a same sex partner does not violate the Career Service Authority Rule
prohibiting discrimination on the basis of sexual orientation and that the Denver Career Service Board’s
classification system did not violate the due process or equal protection clauses); see also Cornell v. Hamilton, 791
N.E.2d 214 (Ind. App. 2003) (holding that a homosexual state employee denied leave for the death of her domestic
partner’s father did not violate the privileges and immunities clause. The Court further intimated that heterosexuals
were entitled to funeral leave for the death of their spouse’s parent).
69
Robert Emond, Does the Equal Protection Analysis in Lawrence Make Bans on Same-Sex Marriage
Unconstitutional?, 26 T. JEFFERSON L. REV. 447, 457 (2004).
13
welfare programs in the event the child is uncared for or if the non-biological same-sex parent
loses their job.
The system creates disincentives by failing to afford same-sex families the same benefits
that heterosexual adoptive families possess, such as health insurance benefits and Social Security
survivor benefits. Because children may only receive health coverage via the biological parent’s
health insurance policy and will not receive coverage under the non-biological parent’s policy,
an incentive for fraud is created. Judge Richard Posner’s concern of the possibility of fraud in the
context of allowing homosexuals to marry is also applicable to the homosexual child adoption
context.70 Posner believes that homosexuals would use marriage as a means to receive spousal
medical benefits.71 The upshot of this logic concerning homosexual child adoption is that
homosexuals may seek legal rights of adoption in order to receive and manage the medical
benefits paid to the minor child. While one cannot categorically deny that these practices occur,
the likelihood of these practices appears to be slim. However, susceptibility to fraud is not
primarily characteristic of homosexual child adoptions.72 For example, a young man may seek to
marry an elderly woman in order to obtain an inheritance or life insurance benefits.73 Therefore,
Posner’s bias against homosexuals, in general, appears to be the result of informational
asymmetries.
As with intestate succession, switching costs exist in altering the status quo. It is likely
that society is not aware of many of the benefits that heterosexual adoptive parents enjoy at the
exclusion of homosexual adoptive parents. Educational opportunities or widely publishing these
70
Darren Bush, Moving to the Left by Moving to the Right: A Law & Economics Defense of Same-Sex Marriage, 22
WOMEN’S RTS. L. REP. 115 (2001) (citing RICHARD A. POSNER, SEX AND REASON 313 (Harvard Univ. Press 1992)).
71
Id.
72
Id. (explaining the possibility of fraudulent behaviors in the homosexual and heterosexual marriage context).
73
Id.
14
discrepancies to the public may rectify the informational asymmetries that characterize the
switching costs associated with intestate succession.
c. The Well-Being of the Child
Despite a lack of legal recognition of parental status for one of the same-sex partners,
census data in 2000 found that of the 594,000 same-sex households, 27% of the households were
raising children.74 A conservative estimate of the number of children currently living in same-sex
households is 166,000 children.75 The census data did not delineate the number of children living
in each household, but the sheer number of children living in same-sex households despite the
distinct disadvantage same-sex couples encounter concerning the benefits typically conferred to
adoptive parents is encouraging.76 It is clear that there is demand for adoptive children in a new
market, the same-sex community. Legal rights and benefits are necessary to spur further demand
in the same-sex community for the adoption of children still in foster care.77
Children benefit from the permanence provided by an adoptive home, as opposed to the
unstable life often provided by the foster care system.78 A handful of studies explore the effect
same-sex parenting has on the well-being of the child. As seen in the gay marriage arena, there is
a misguided resistance to accepting and affording rights to homosexuals. Many argue that
homosexual child rearing increases the risk of homosexual orientation in children, emotional and
cognitive disadvantages attributed to the absence of opposite-sex parents, and a lack of economic
74
Meezan & Rauch, supra note 9, at 98.
Id.
76
Id.
77
Cf. Homosexual Activists Demand the Right to Adopt (1999),
http://www.cwfa.org/articledisplay.asp?id=1042&department=CWA&categoryid=family (last accessed Mar. 11,
2006) (indicating that the broken foster care system is in need of revamping and that, because many children are left
without homes, homosexual activists feel that homosexual families can fill the void. However, fears exist that
placement agencies, quick to find permanency for children, will place children in unstable homes, thus harming the
children. This article appears to describe the homophobia that exists in the context of affording rights to nontraditional family compositions).
78
Id.
75
15
security.79 Sociological studies show that there is no evidence that children of lesbian or gay
parents are confused about their gender identity, or that they are more likely to be homosexual.80
In fact, the studies show that children, especially daughters, of lesbian parents are more
accepting, have accepting attitudes towards various sexual identities, and are more willing to
question their own sexuality.81 Professor Wardle argues that the studies actually indicate that
children raised by same-sex parents are at a 3.5-7% heightened risk of being drawn to
homosexual behaviors, thus outlining his argument that children of same-sex couples are
somehow “turned” gay.82 There is a perception that allowing contact with homosexuals or
awareness of homosexual tendencies creates a disutility, attributed to the commonly held belief
that homosexuality is immoral.83
These studies are open to criticism since there are some measurement issues which
Professor Wardle uses to invalidate the findings of the previously mentioned studies and, yet,
ironically, Professor Wardle uses studies that are also subject to the same measurement criticisms
to bolster his position.84 First, researchers have difficulty in finding representative samples to
study homosexual parenting.85 Most of the participants in the studies are middle-to-upper class,
urban, well educated, and “out” and primarily composed of lesbians, not gay men.86 Most of the
participants are white and many of them actively participate with an agenda to, allegedly, skew
the results.87 Secondly, since homosexual couples do not enjoy extensive adoptive rights,
researchers encounter problems with small sample sizes where most studies compare thirty or
79
Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. ILL. L. REV. 833 (1997).
Meezan & Rauch, supra note 9, at 103.
81
Id.
82
Wardle, supra note 79, at 850-51.
83
Bush, supra note 70.
84
Wardle, supra note 79.
85
Meezan & Rauch, supra note 9, at 101.
86
Id.
87
Id.
80
16
less children.88 In addition, the subject-groups experience a heterogeneity where partnered
lesbians are sometimes grouped with single lesbians to form a “single” group.89 Finally, few
studies actually collect data from the children directly and, instead, rely on information provided
by the same-sex parent.90 Despite these reasons to view the findings of the studies with
skepticism, one cannot deny the fact that each study has confirmed that homosexual parenting
rivals and sometimes exceeds heterosexual parenting concerning the well-being of the child.91
Many courts, based on a lack of information, find the studies lacking in persuasive authority and
are waiting for jurisdictions to experiment in the gay rights arena and then make decisions based
on the results from these experiments.92 Using the measurement issues associated with the
studies to invalidate the findings of the study creates a circular argument. Obviously, there are
measurement issues and a lack of a representative sample of which to study the effects because
the law has not afforded expansive adoptive rights to homosexual parents in which substantial
quantifiable data may be measured. The only same-sex couples that are currently raising children
are those that can endure the high transaction costs of adoption. There is not equal access to the
adoption market; therefore, opponents like Professor Wardle have created a self-fulfilling
prophecy. The fact that no jurisdictions have experimented with full adoptive rights for
homosexual parents perpetuates the informational asymmetries.93 We will never know the full
effect of homosexual parenting until jurisdictions begin to experiment and measure the effects on
the market.
88
Id.
Id.
90
Id. at 102.
91
See generally Meezan & Rauch, supra note 9.
92
Michael, supra note 8.
93
Id.
89
17
The American Psychological Association (APA), an authority on human behavior,
produced a report in July 2004 on homosexual parenting that stated there is no scientific basis for
concluding that lesbian mothers or gay fathers are unfit parents simply because of their sexual
orientations and that homosexual parents are just as likely as heterosexual parents to provide
healthy and supportive environments for their children.94 The APA report serves to dispel the
belief that children that are products of homosexual parents are somehow disadvantaged. Studies
show that homosexual parents are very similar to heterosexual parents.95 However, the failure to
recognize that homosexual parenting is an acceptable substitute for heterosexual parenting sends
a signal to the child and society that their family situation is unacceptable and subject to ridicule.
The child internalizes that they are an inferior “good” in relation to other children, adopted or
biological, and therefore, stunts development and reduces self-worth. The child may develop
bouts of depression, anxiety, or confusion about their own sexuality because of the failure to
recognize the validity of homosexual parenting based on the stigma society attaches to
homosexual families.96 Studies have shown that children of homosexual parents show no
differences in cognitive abilities, behavior, general emotional development, or in self-esteem,
depression, or anxiety.97 Therefore, fears about homosexual parenting appear to be unfounded
and an illegitimate barrier to entry to the adoption market for homosexual couples.
94
Meezan & Rauch, supra note 9, at 102 (citing American Psychological Association, Resolution on Sexual
Orientation, Parents, and Children (2004), http://www.apa.org/pi/lgbc/ (last accessed Nov. 18, 2005)).
95
Meezan, supra note 9, at 103 (citing A. Brewaeys et al., Donor Insemination: Child Development and Family
Functioning in Lesbian Mother Families, 12 HUM. REPROD. 1349, 1356-57 (1997)).
96
Wardle, supra note 79.
97
Meezan & Rauch, supra note 9, at 103 (citing Karen G. Lewis, Children of Lesbians: Their Point of View, 25
SOC. WORK 198 (1980); Ann O’Connell, Voices from the Heart: The Developmental Impact of Mother’s Lesbianism
on Her Adolescent Children, 63 SMITH C. STUDIES IN SOC. WORK 281 (1993); Soralle B. Pennington, Children of
Lesbian Mothers, in GAY AND LESBIAN PARENTS 58 (Frederick W. Bozett ed., 1987)); see also Dep’t of Human
Serv. & Child Welfare Agency Review Bd. V. Howard, 2006 WL 1779467 (Ark. 2006)(noting that the Arkansas
child welfare board’s ban on gay foster parents improperly tried to regulate public morality and the ban violated the
separation of powers doctrine. Several justices echoed the belief that the Arkansas child welfare board was not
promoting the health, safety, and welfare of foster children with this ban, but was attempting to legislate morality
18
Other societal fears that serve as barriers to entry for homosexual parents include the fear
that homosexuals have a higher propensity to pedophilia and the fear that homosexuals are
simply hedonistic and cannot engage in a durable and stable relationship.98 Dr. A. Nicholas
Groth asserts that the current psychological research illustrates that preadolescent children are
not at a greater risk for sexual abuse by homosexuals than by heterosexuals.99 He further asserts
there are practically no reports of sexual molestation of girls by lesbian parents and that the adult
male who sexually molests young boys is not likely to be a homosexual.100 The societal fear is
that allowing gay men to adopt children will spur incidents of sexual abuse of the child and
subsequently emotionally, physically, and psychologically harm the child. The recent child abuse
scandal surrounding the Catholic Church has only exacerbated fears held by the public about the
relationship between adult males and young boys.101 In 1978, Dr. Groth, using a fixatedregressed distinction, studied 175 adult males convicted of sexual assault of a child in
Massachusetts.102 He found that none of the men had homosexual adult sexual orientation. The
study found that no men were primarily sexually attracted to men and that for the bisexuals who
and perpetuate a bias against homosexuals. The studies relied upon by the court indicated that children being raised
by homosexuals does not cause academic problems or gender identity problems) [emphasis added].
98
Wardle, supra note 79.
99
Gregory M. Herek, Facts About Homosexuality and Child Molestation (2005),
http://psychology.ucdavis.edu/rainbow/html/facts_molestation.html (last accessed Nov. 18, 2005) (citing A.N. Groth
& T.S. Gary, Heterosexuality, homosexuality, and pedophilia: Sexual offenses against children and adult sexual
orientation, in MALE RAPE: A CASEBOOK OF SEXUAL AGGRESSIONS 147 (Anthony M. Scacco ed., AMS Press
1982)).
100
Id.
101
See Toby Westerman, ’Gay’ Culture in Catholic Church Grows: Priest Says Scandal Really About
Homosexuality, Not Pedophilia, http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=26940 (last
accessed Mar. 11, 2006) (noting that homosexuality is the root problem in the Catholic Church child abuse scandals,
yet Rev. Charles Fiore acknowledges that most cases of sexual abuse of children involve white, Anglo-Saxon,
married men [emphasis added]).
102
Herek, supra note 99 (citing A.N. Groth & H.J. Birnbaum, Adult Sexual Orientation and Attraction to Underage
Persons, 7 ARCHIVES OF SEXUAL BEHAVIOR 180 (1978)) (illustrating that 47% of the men were classified as
“fixated,” where perpetrators suffer a temporary or permanent arrestment of psychological maturation resulting from
unresolved formative issues, which persist and underlie the organization of subsequent phases of development. 40%
were classified as regressed adult heterosexuals and 13% were classified as regressed adult bisexuals. “Regressed” is
defined as a temporary or permanent appearance of primitive behavior after more mature forms of expression had
been attained, regardless of whether the immature behavior was actually manifested earlier in the individual's
development).
19
occasionally engaged in sexual conduct with other men, their transient preference for men did
not exceed their desire for women.103 Therefore, based on these findings, homosexuals are not
predisposed to abusing children and that heterosexuals are more likely to abuse a child,
sexually.104 The public perception that homosexuals engage in child abuse frequently is
misguided and representative of yet another informational asymmetry that creates a barrier to
entry for homosexuals to the adoption market.
Finally, opponents to extending homosexual adoption rights cite that homosexuals are
hedonistic and incapable of having a stable and meaningful long-term relationship. Though little
reliable research exists on the long-term viability of homosexual partnerships, a substantial
amount of research for heterosexuals shows that, ceteris paribus,105 marriages are more durable
and stable than cohabitation, and this stability is widely held to be of vital importance to
children.106 Heterosexuals are afforded the opportunity to marry or to simply cohabitate, but
homosexuals, however, are not given the choice to marry (with the exception of Massachusetts).
Therefore, these findings are not directly applicable to homosexual partnerships because many
would choose to solidify their relationship through marriage and ensure stability. 107 Marriage
also confers many resources through survivor benefits and intestate succession that also helps
ensure that stability, which serves as an incentive for stable homosexual relationships.108 It does
not follow that because most homosexuals are forced to simply cohabitate, their relationships are
103
Id.
Dr. William C. Holmes, Assistant Professor of Medicine at the University of Pennsylvania School of Medicine,
noted in the December 1998 issue of the Journal of the American Medical Association that 98% of all male
perpetrators who had sexually abused boys were identified in their families and communities as heterosexual
[emphasis added]. See “Talking Points about Pedophilia,” http://www.bluegrassfairness.org/pages/TPpedophilia.asp (last accessed Dec. 1, 2005) (citing Dr. William C. Holmes, Sexual Abuse of Boys, JAMA, 1855-60
(December 2, 1998)); see also Hubing, supra note 14.
105
Meaning “all things being equal.”
106
Meezan & Rauch, supra note 9, at 128.
107
Id.
108
Nishimoto, supra note 36.
104
20
inherently unstable. The lack of research in this area indicates a market failure characterized by
the absence of perfect information. Information gaps allow society to maintain its preconceived
notions and remain resistant to deconstructing barriers to allow homosexual competition in the
adoption market.
5. Conclusion: Cost/Benefit Analysis of the Remedies for Same-Sex Foster Care Adoption
One of the primary concerns regarding the failure to extend full adoption rights to
homosexual partners is the failure to extend freedom of contract to homosexual partners. Child
adoption, like gay marriage, involves contracting in order to obtain a desired product (i.e.,
children). Posner, in reference to homosexual child adoption, asks, “Do we want homosexual
couples to have the same rights of adoption and custody as heterosexual couples?”109 As
Professor Bush observes, Posner apparently believes that any contact between homosexuals and
children is detrimental to the child’s welfare and even mentioning these rights is a sufficient
argument against anything proposed in furtherance of homosexual rights.110 Yet, Posner, a
proponent of freedom of contract, appears to contradict himself through the imposition of
oppressive contracting restraints on homosexuals.111
Legislatures should afford homosexual couples the same adoptive rights as heterosexuals,
but in order to achieve that goal, some sort of legal recognition of the homosexual couple must
exist. Although the benefits of same-sex marriage are not discussed here, jurisdictions should
follow the lead of Massachusetts, Vermont, and Connecticut and at least recognize civil union
status, not marriage outright.112 This recognition allows for martial benefits to accrue to
homosexual couples and for the commencement of joint adoption procedures for homosexual
109
Bush, supra note 70, at 129 (citing RICHARD A. POSNER, SEX AND REASON 313 (Harvard Univ. Press 1992)).
Id.
111
Id.
112
Meezan & Rauch, supra note 9, at 98.
110
21
couples. Opening the market to more homosexual couples via increasing the legal adoptive rights
that homosexual partners have increases the demand for adoptable children and, thus, establishes
a new equilibrium whereby less children languish in the foster care system, potentially. The
adoption market has network effects associated with the market.113 Allowing more children the
benefit of permanency creates a situation where the utility of the children is maximized and there
is less of a drain on society associated with supporting less children left in foster care. Society’s
tax dollars go to funding the foster care system and paying for the subsidies provided for foster
care families, which creates the negative externality for society. Therefore, the more people
allowed participating in the adoption “network,” the more people who see an increase in their
utility.114 In addition, the granting of full adoptive rights can be seen as a Pareto efficient solution
whereby individuals participating in the market are not harmed, but only helped. Homosexual
parents, potentially, could demand to adopt children that are left behind in the foster care system
(i.e., homosexual parents seek to adopt the children that heterosexual couples do not want).115
This would reduce the number of children in the system and benefit society from the standpoint
that fewer resources are necessary to finance the foster care system.
The granting of intestate succession rights to homosexual partners provides financial
security for children when homosexual parents die, which acts as a safety net. The safety net
prevents the child from needing social welfare benefits, which are costs imposed on society. The
child should be the rightful heir of their parent’s assets, unless specified otherwise, and the
claims of others should be subordinate to the child’s claim. The child’s utility is maximized
through the efficient allocation of resources provided by intestate succession, which allows the
113
See generally Gregory J. Werden, Network Effects and Conditions of Entry: Lessons From the Microsoft Case,
69 ANTITRUST L.J. 87 (2001) (describing the increase in individual utility through network effects using the
Microsoft case as a basis for comparison).
114
Id.
115
Bush, supra note 70.
22
child the materials needed to be a productive citizen who contributes to the overall well-being of
society. Another benefit of clarifying intestate succession is the alleviation of messy inheritance
cases from the court’s docket, allowing the court to hear more cases, thus realizing an increase in
judicial efficiency.
Providing homosexuals the full panoply of adoptive rights creates a mechanism where the
child and the surviving partner are rightfully entitled to the Social Security survivor’s benefits
and health insurance benefits accumulated by the immediate family member. The law presumes
that the child and the spouse of a deceased parent are the rightful heirs for survivor’s benefits.116
Therefore, it is only logical for the law to recognize entitlements to these benefits for the
homosexual partner and the child. Again, affording the surviving family the financial assets of
which they are entitled serves to maximize their utility and reduces the possibility that the family
must seek social welfare benefits, which, as already discussed, are costs to society.
Finally, the research, though limited, indicates that children are not made worse off
through involvement with the homosexual family.117 In fact, several studies indicate that the
children are sometimes made better off.118 Opponents of full homosexual adoption rights argue
that the mere contact with homosexuals is detrimental to the appropriate development of
children.119 One must ask what is appropriate child rearing and who determines it.
Homosexuality is not a disease, as evidenced by the American Psychological Association
removing homosexuality from its list of mental disorders in 1979.120 Although it is still widely
116
See Maros v. Transamerica Ins. Co., 76 N.J. 572, 577, 388 A.2d 971, 973 (1978); see also Meezan & Rauch,
supra note 9, at 108 (citing EVAN WOLFSON, WHY MARRIAGE MATTERS: AMERICAN, EQUALITY, AND GAY PEOPLE’S
RIGHT TO MARRY 95-96 (Simon & Schuster 2004)).
117
Jennifer L. Wainwright et al., Psychosocial Adjustment, School Outcomes, and Romantic Relationships of
Adolescents with Same-Sex Parents, 75 CHILD DEVELOPMENT 1886, 1892-95 (2004).
118
A. Brewaeys et al., Donor Insemination: Child Development and Family Functioning in Lesbian Mother
Families, 12 HUM. REPROD. 1349, 1356-57 (1997).
119
Bush, supra note 70.
120
Michael, supra note 8.
23
debated, some well-respected studies indicate that homosexuality is biological and not a product
of choice.121 Therefore, homosexuals are rational actors, contrary to Posner’s assertions, who are
thereby precluded from complete freedom of contract in the adoption market. Children benefit
from permanency, stability, financial security, and love. Once screened by adoption or state
agencies, homosexual couples, like heterosexual couples, have the ability to provide for all the
needs of the child and lessen the burden on society to raise the child through the foster care
system. Love and the resources to raise a child are not solely endemic to heterosexual couples,
therefore there appears to be little reason to prevent homosexual couples from the adoption
procedures enjoyed by heterosexual couples.
The primary cost involved with implementing such a strategy is that of switching costs.
Informational asymmetries have created such a barrier for homosexuals to enter the adoption
market that some effort must be expended to educate the populace and illustrate the economic
benefits society and the child could realize from same-sex child adoptions. However, Professor
William Eskridge cautions that, “[a] process that forces minority rights onto an unwilling
populace will not ‘stick’ in a democracy,” and “immediate full equality is not always possible,
not practical, not even desirable.”122 Posner argues, in the context of gay marriage, that allowing
homosexuals to marry places “a stamp of approval on homosexuality.”123 Therefore, allowing
homosexuals some rights only conferred to married heterosexual couples is in a way accepting
121
See Swaab DF, Sexual Differentiation of the Human Brain: Relevance for Gender Identity, Transsexualism, and
Sexual Orientation, GYNECOL. ENDOCRINOL. 19(6):301-12 (Dec. 2004), available at
http://www.ncbi.nlm.nih.gov.content.lib.utexas.edu:2048/entrez/query.fcgi?CMD=DisplayFiltered&DB=pubmed
(by subscription only; on file with the author) (last accessed Nov. 18, 2005) (noting that:
Male sexual differentiation of the brain and behavior are thought, on the basis of experiments in rodents, to
be caused by androgens, following conversion to estrogens. However, observations in human subjects with
genetic and other disorders show that direct effects of testosterone on the developing fetal brain are of
major importance for the development of male gender identity and male heterosexual orientation. Solid
evidence for the importance of postnatal social factors is lacking. In the human brain, structural diferences
have been described that seem to be related to gender identity and sexual orientation).
122
Harvard, supra note 24, at 2011 (citing WILLIAM N. ESKRIDGE, JR., EQUALITY PRACTICE: CIVIL UNIONS AND THE
FUTURE OF GAY RIGHTS 118-19 (Routledge 2001)).
123
Bush, supra note 70.
24
the merits of homosexuality. Posner further argues from a pragmatic perspective whereby if there
are enough people who oppose homosexual rights, as evidenced by results of the aforementioned
Texas constitutional amendment banning homosexual marriage, then society must incur
significant transaction costs to overcome this reluctance to acknowledge homosexual rights.124
Educational opportunities and information dissemination regarding the benefits of allowing
homosexuals to alleviate the substantial costs associated with raising children in the foster care
system would rectify the informational asymmetries of society and could possibly allow adoptive
homosexual partners the opportunity to overcome the pragmatism argument proposed by Posner.
In addition, the tides are turning in regard to acceptance of homosexual culture. Studies have
shown that typically the older generations are those that vehemently oppose homosexual rights,
where the younger generation composed of individuals thirty and younger widely support and
accept homosexuality in United States culture.125 Either the legislatures must motivate change in
favor of homosexual rights or we must wait for the younger generation to overwhelm the older
generation at the ballot box to elect leaders who will effectuate change for the benefit of society
and, most importantly, children.
124
Id.
Meezan & Rauch, supra note 9, at 98 (citing Elizabeth Mehren, Homosexuals Finding More Acceptance, Poll
Says, But Most Still Oppose Gay Marriage, L.A. TIMES, Apr. 11, 2004, http://www.sfgate.com/cgibin/article.cgi?file=/c/a/2004/04/11/MNGQ663HK61.DTL (last accessed Mar. 11, 2006) (This Los Angeles Times
poll, conducted between March 27-30, 2004, found that among the respondents under age thirty: 44% supported
same-sex marriage; 31% supported civil unions; 22% favored neither as compared to only 10% of those respondents
sixty-five years old or older who would support same-sex marriage)).
125
25