LEGAL PROTECTION FOR ALL THE CHILDREN: DUTCH-AMERICAN COMIPARISON OF LESBIAN AND GAY PARENT ADOPTIONS Nancy g. Maxwell, Astrid A M. Mattijssen, and Charlene Smith Abstract The purpose of this is to examine the recent developments concerning same-gender parent adoptions in the Ur tates and the Netherlands, comparing the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States, where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents=or as >strangers=of the child. The section also includes an analysis of the recent Dutch case before the highest court in the Netherlands, the Hoge Raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, includ ing present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gend couples, and homosexuals in general, to adopt. The article then concludes with a comparison and This section examines the differences in the two countries= legal systems, the social statuson ns analysis of the dutch and al gal histories concerning same-gender co-parent adoptio homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender co- parent adoption is in the best interest of the children raised by same-gender couples Professor Nancy G. Maxwell is a Professor of Law at Washburn University School of Law Topeka, Kansas. She has co-taught comparative family law materials with Astrid Mattijssen for the for the Comparative Family Law class for Washburn Law School=s London Summer School Progan o comparative human rights courses at Washburn Law School, as well as teaching the American materia Astrid A.M. Mattijssen co-authored this article while she was a member of the legal staff of the Clara Wichmann Institute. the academic institute for women and law in the Netherlands. from 1992-98 She also served as a member of the State Committee on Opening-up Civil Marriage for Same-Sex Couples, known as the Kortmann Committee, in 1996-97. Since September 1998, she has been a legal staff member for the Dutch General Prosecutor, where she is responsible for the Expertise Centre on Discrimination ofessor Charlene Smith is a Professor of Law at Washburn University School of Law, Topeka Kansas. Professor Smith and Astrid Mattijssen have coordinated several comparative human rights classes regarding sexual orientation at Washburn Law School. They have also presented materials on discrimination against queers at the International Lesbian and Gay Association (ILGA) conferences and the 1998 Conference on Trade Unions, Homosexuality, and Work in Amsterdam The authors wish to thank Ineke de hondt. associate professor of private law. Utrecht University, The Netherlands, and Kees Waaldijk, Lecturer in Law, Leiden University, The Netherlands for their thoughtful advice during the writing of this article, as well as Annelies Henstra, PhD Student, Utrecht University, The Netherlands, and Scott Curry, attorney at law, Wichita, Kansas, USA, for their research assistance
LEGAL PROTECTION FOR ALL THE CHILDREN: DUTCH-AMERICAN COMPARISON OF LESBIAN AND GAY PARENT ADOPTIONS Nancy G. Maxwell, Astrid A.M. Mattijssen, and Charlene Smith1 Abstract The purpose of this article is to examine the recent developments concerning same-gender parent adoptions in the Unites States and the Netherlands, comparing the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States, where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents= or as >strangers= of the child. The section also includes an analysis of the recent Dutch case before the highest court in the Netherlands, the Hoge Raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, including present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gender couples, and homosexuals in general, to adopt. The article then concludes with a comparison and analysis of the Dutch and American legal histories concerning same-gender co-parent adoptions. This section examines the differences in the two countries= legal systems, the social status of homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender coparent adoption is in the best interest of the children raised by same-gender couples. 1 Professor Nancy G. Maxwell is a Professor of Law at Washburn University School of Law, Topeka, Kansas. She has co-taught comparative family law materials with Astrid Mattijssen for the comparative human rights courses at Washburn Law School, as well as teaching the American materials for the Comparative Family Law class for Washburn Law School=s London Summer School Program. Astrid A.M. Mattijssen co-authored this article while she was a member of the legal staff of the Clara Wichmann Institute, the academic institute for women and law in the Netherlands, from 1992-98. She also served as a member of the State Committee on Opening-up Civil Marriage for Same-Sex Couples, known as the Kortmann Committee, in 1996-97. Since September 1998, she has been a legal staff member for the Dutch General Prosecutor, where she is responsible for the Expertise Centre on Discrimination. Professor Charlene Smith is a Professor of Law at Washburn University School of Law, Topeka, Kansas. Professor Smith and Astrid Mattijssen have coordinated several comparative human rights classes regarding sexual orientation at Washburn Law School. They have also presented materials on discrimination against queers at the International Lesbian and Gay Association (ILGA) conferences and the 1998 Conference on Trade Unions, Homosexuality, and Work in Amsterdam. The authors wish to thank Ineke de Hondt, Associate Professor of Private Law, Utrecht University, The Netherlands, and Kees Waaldijk, Lecturer in Law, Leiden University, The Netherlands, for their thoughtful advice during the writing of this article, as well as Annelies Henstra, PhD Student, Utrecht University, The Netherlands, and Scott Curry, attorney at law, Wichita, Kansas, USA, for their research assistance
1. Introductio 2. Case law 2.1 American case law 2. 1. 1 Co-parent adoptions 2. 1.2 Stranger adopt 2.2 Dutch case Ian 3. Current status of Dutch legislation 3. Ad e 3.2 Joint parental authority 3.3 Reg 4. Proposed legislation concerning same-gender co-parent adoptions 4. 1 Dutch legislative proposal- Allowing same-gender co-parent adoptions 4. 2 American legislative proposals- Anti-homosexual backlash 5. Comparison and analysis of the Dutch and American legal history concerning same-gender co- parent adoptions 5.1 Differences in legal systems 5.2 Differences in the social status of homosexuals 5.3 Differences in the social status of adoption 5. 4 Differences in the underlying assumptions about family lany 6. Conclusion Append ix: Homosexual and Same-Gender Parent Adoption Articles 1. Introduction The lesbian baby boom made the front cover of the November 1996 Newsweek, which is widely distributed in both the Netherlands and the United States. Estimates are that 20.000 children are being reared in Dutch lesbian and gay families. The number in the United States varies from 1.5 to 5 million depending on which study is consulted. 4 The parents of these children nurture Barbara Kantrowitz, Gay Families Come Out, NEWSWEEK, Nov, 4, 1996, at 50 American >estimates range from 6 million to 14 million children with at least one gay parent. Adoption agencies report more and more inquiries from prospective parents-especially men-who identify themselves as gay, and sperm banks say they=re in the midst of what some call a Agayby boom@ propelled by lesbians. ld Rock star Melissa Etheridge made headlines when she announced that she and declined to reveal how the baby was conceived. Etheridge plans on adopting the baby after the bih a her long-time domestic partner, Julie Cypher, were going to have a baby. Etheridge and Cypher hay Mark miller, We=re a Family and We Have Rights, NEWS WEEK, Nov. 4, 1996, at 54 Hans Warmerdam and Annemies gort. MEER DAN GEWENST: HANDBOEK VOOR LESBISCHE EN HOMOSEKSUELE OUDERS(Amsterdam: Schorer, 1996) Garry Cooper, Network Briefs, FAM. THERAPY NETWORKER, July/Aug. 1997, at 15
Contents 1. Introduction 2. Case law 2.1 American case law 2.1.1 Co-parent adoptions 2.1.2 Stranger adoptions 2.2 Dutch case law 3. Current status of Dutch legislation 3.1 Adoption laws 3.2 Joint parental authority 3.3 Registered partnerships 4. Proposed legislation concerning same-gender co-parent adoptions 4.1 Dutch legislative proposal - Allowing same-gender co-parent adoptions 4.2 American legislative proposals – Anti-homosexual backlash 5. Comparison and analysis of the Dutch and American legal history concerning same-gender coparent adoptions 5.1 Differences in legal systems 5.2 Differences in the social status of homosexuals 5.3 Differences in the social status of adoption 5.4 Differences in the underlying assumptions about family law 6. Conclusion Appendix: Homosexual and Same-Gender Parent Adoption Articles 1. Introduction The lesbian baby boom made the front cover of the November 1996 Newsweek, 2 which is widely distributed in both the Netherlands and the United States. Estimates are that 20,000 children are being reared in Dutch lesbian and gay families.3 The number in the United States varies from 1.5 to 5 million depending on which study is consulted.4 The parents of these children nurture, 2 Barbara Kantrowitz, Gay Families Come Out, NEWSWEEK, Nov. 4, 1996, at 50. American >[e]stimates range from 6 million to 14 million children with at least one gay parent. Adoption agencies report more and more inquiries from prospective parents - especially men - who identify themselves as gay, and sperm banks say they=re in the midst of what some call a Agayby boom@ propelled by lesbians.= Id. Rock star Melissa Etheridge made headlines when she announced that she and her long-time domestic partner, Julie Cypher, were going to have a baby. Etheridge and Cypher have declined to reveal how the baby was conceived. Etheridge plans on adopting the baby after the birth. Mark Miller, We=re a Family and We Have Rights, NEWSWEEK, Nov. 4, 1996, at 54. 3 Hans Warmerdam and Annemies Gort, MEER DAN GEWENST: HANDBOEK VOOR LESBISCHE EN HOMOSEKSUELE OUDERS (Amsterdam: Schorer, 1996). 4 Garry Cooper, Network Briefs, FAM. THERAPY NETWORKER, July/Aug. 1997, at 15
ducate, pamper and generally raise them in the same ways heterosexual parents raise thei children. Even though children in same-gender relationships are reared by two loving parents, for most of these couples the nonbiological parent does not have the same legal options to establish the rights and responsibilities that heterosexual couples have in relation to the children they are raising. However, recent developments in both the United States and the Netherland have begun to change the precarious legal status of the nonbiological parent in these families The policies of both the Netherlands and the United States recognize that, if possible, it is best to have two parents in the household. For instance, if a parent dies and the remaining parent remarries, the adoption legislation in both countries makes it possible for the stepparent to adopt a child born of the previous union. In addition to the stepparent situation, it is the general policy in the United States that adoption is preferable either to institutionalization or foster care. On the other hand, in other than the stepparent context, adoption in the Netherlands has not been a A Breweays, DONOR INSEMINATION: FAMILY RELATIONSHIPS AND CHILD DEVELOPMENT IN LESBIAN AND HETEROSEXUAL FAMILIES (Leiden: Rijksuniversiteit Leiden, 1997)(in which the book=s general conclusion states that lesbian families do not raise their children differently from heterosexual families). Recently, at the Society for Research and Development on Child Development, papers were presented on studies of children in lesbian and non-lesbian homes. The studies were done in the U. S Britain, and the Netherlands. The findings showed there were no significant differences except in one aspect:>..90 percent of the lesbian coparents took an active role in raising the children, while onl bout 37 percent of the heterosexual fathers did the same. Cooper, supra note 4 For example, in cases of stepparent adoptions, the judge has the authority to waive certain statutory requirements, such as a social worker=s report on the appropriateness of the adoptive home. See MASS. ANN. LAwS ch 210, 5A(Law. Co-op. 1994). In other states, these reports may not be required at all in stepparent adoptions. See ARK. CODE ANN. 9-9-212(c)(Michie 1993): IND CODE ANN. 31-19-7 I Sec. 1 (West Supp. 1997); KAN. STAT. ANN. 59-2132(h)(1994); MONT. CODE ANN. 40-8-122(1) (1995),ND.CENT.CODE'14-15-11(5)(1991) Between 1980 and 1990, stepparent adoptions of Dutch children have more than tripled, from 105 in 1980 to 357 in 1990. Nora Holtrust. AAN MOEDERS KNIE. DE JURIDISCHE AFSTAMMINGSRELATIE TUSSEN MOEDER EN KIND(Nijmegen: Ars Aequi Libri, 1993), at p. 191 and pp 205-10 For instance, in Alabama, subsidies are given after an adoption, ALA. CODE26-10-25(1992): Florida says in its statute that >It]he Legislature finds that 7 out of 10 children placed in foster care do not return to their biological families after the first year and that permanent homes could be found for many of these children if their status were reviewed periodically .. = FLA STAT. ANN. 39.45(1)(West 1988) Maryland states that one of its goals is to >encourage efforts at adoption of the child, MD. CODE ANN FAM. LAW 5-544(1991); the Nebraska legislature states that >[t]he Legislature finds that there are children in temporary foster care situations who would benefit from the stability of adoption, = NEB. REV STAT. 43-155(1993): Nevada is particularly concerned about special-needs children and states that it has a >fundamental interest in promoting adoption for children with special needs because the care, emotional stability, and general support and encouragement required by such children can be best, and often only obtained in family homes with a normal parent-child relationship, NEV. REV. STAT. 127. 410, Art. I (b) (1995) See the new Dutch adoption laws, Stb. 1997, 772, Art. 227-232 Bw(1997)(allowing both unmarried heterosexual couples and single persons to adopt)
educate, pamper and generally raise them in the same ways heterosexual parents raise their children.5 Even though children in same-gender relationships are reared by two loving parents, for most of these couples the nonbiological parent does not have the same legal options to establish the rights and responsibilities that heterosexual couples have in relation to the children they are raising. However, recent developments in both the United States and the Netherlands have begun to change the precarious legal status of the nonbiological parent in these families. The policies of both the Netherlands and the United States recognize that, if possible, it is best to have two parents in the household.6 For instance, if a parent dies and the remaining parent remarries, the adoption legislation in both countries makes it possible for the stepparent to adopt a child born of the previous union.7 In addition to the stepparent situation, it is the general policy in the United States that adoption is preferable either to institutionalization or foster care.8 On the other hand, in other than the stepparent context, adoption in the Netherlands has not been a 5 A. Breweays, DONOR INSEMINATION: FAMILY RELATIONSHIPS AND CHILD DEVELOPMENT IN LESBIAN AND HETEROSEXUAL FAMILIES (Leiden: Rijksuniversiteit Leiden, 1997) (in which the book=s general conclusion states that lesbian families do not raise their children differently from heterosexual families). Recently, at the Society for Research and Development on Child Development, papers were presented on studies of children in lesbian and non-lesbian homes. The studies were done in the U.S., Britain, and the Netherlands. The findings showed there were no significant differences except in one aspect: >. . . 90 percent of the lesbian coparents took an active role in raising the children, while only about 37 percent of the heterosexual fathers did the same.= Cooper, supra note 4. 6 For example, in cases of stepparent adoptions, the judge has the authority to waive certain statutory requirements, such as a social worker=s report on the appropriateness of the adoptive home. See MASS. ANN. LAWS ch. 210, ' 5A (Law. Co-op. 1994). In other states, these reports may not be required at all in stepparent adoptions. See ARK. CODE ANN. ' 9-9-212(c) (Michie 1993); IND. CODE ANN. ' 31-19-7- 1 Sec. 1 (West Supp. 1997); KAN. STAT. ANN.' 59-2132(h) (1994); MONT. CODE ANN. ' 40-8-122(1) (1995); N.D. CENT. CODE ' 14-15-11(5) (1991). 7 Between 1980 and 1990, stepparent adoptions of Dutch children have more than tripled, from 105 in 1980 to 357 in 1990. Nora Holtrust, AAN MOEDERS KNIE: DE JURIDISCHE AFSTAMMINGSRELATIE TUSSEN MOEDER EN KIND (Nijmegen: Ars Aequi Libri, 1993), at p. 191 and pp. 205-10. 8 For instance, in Alabama, subsidies are given after an adoption, ALA. CODE ' 26-10-25 (1992); Florida says in its statute that >[t]he Legislature finds that 7 out of 10 children placed in foster care do not return to their biological families after the first year and that permanent homes could be found for many of these children if their status were reviewed periodically . . .,= FLA. STAT. ANN. ' 39.45(1) (West 1988); Maryland states that one of its goals is to >encourage efforts at adoption of the child,= MD. CODE ANN., FAM. LAW ' 5-544 (1991); the Nebraska legislature states that >[t]he Legislature finds that there are children in temporary foster care situations who would benefit from the stability of adoption,= NEB. REV. STAT. ' 43-155 (1993); Nevada is particularly concerned about special-needs children and states that it has a >fundamental interest in promoting adoption for children with special needs because the care, emotional stability, and general support and encouragement required by such children can be best, and often only, obtained in family homes with a normal parent-child relationship,= NEV. REV. STAT. ' 127.410, Art. 1(b) (1995). See the new Dutch adoption laws, Stb. 1997, 772, Art. 227-232 BW (1997) (allowing both unmarried heterosexual couples and single persons to adopt)
widely accepted legal solution for children whose parents are unable, or unwilling, to care for them. In fact, it has only been in 1997 that the Dutch legislat ure extended adoption rights to persons other than married couples; in April of 1998, single persons and unmarried heterosexual couples were allowed to adopt for the first time in modern Dutch history. While both the Netherlands and the United States have policies allowing stepparent adoptions, legal obstacles have existed in both countries if the adoption petitioners were lesbians or gay men, even if these individuals were the de facto parents of the children they sought to adopt. However, recent court decisions in several of the United States have granted same-gender parent adoptions, and a legislative proposal in the Netherlands would allow same-gender couples to adopt, jointly, the children they have been raising together The purpose of this article is to examine these recent changes and compare the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents= or as >strangers=*of the child. The section also includes an analysis of the In the United States, there are over 100,000 children who are eligible for adoption. See Proclamation No. 7145, 3 C.F.R., 1998 Comp., p. 111, 63 Fed. Reg. 59, 203(1998). >Preliminary reports from 42 states for federal fiscal year 1998 project adoptions of at least 36, 000 foster children, which includes increases of 7, 859 over the average number of adoptions from the previous three years. Joe Kroll, 1998 U.S. Adoptions from Foster Care Projected to Exceed 36,000, North American Council on AdoptableChildrenAdoptalk,Winter1999,http://members.aolcom/nacac/1998adoptions.htmlAbout 50 to 100 Dutch children are available for adoption each year. DE GROTE ALMANAK VOORINFORMATIE EN ADVIES (Utrecht: NIZW, 1997), at 525; Kamerstukken 11994/95, 22700, nr 5, p. 13. In 1996, 704 foreign-born children were adopted by Dutch citizens; in 1995, there were 661; and in 1994, only 594 Persbericht Ministerie van Justitie. 13 maart 1997 Wet van 24 december 1997 tot herziening van het afstammingsrecht alsmede van de regeling van adoptie,SYb.1997,772,Art.227232BW(1997) n The persons adopting must be 18 years older than the child, and the parents(the legal parents, not a donor or biological father who has not recognized the child) must consent to the adoption request; Stb 997, 772, Art. 228 lid I sub c and d Bw(1997). The criteria for adoptions by couples require that the couples have cohabited for three continuous years before the adoption request and that they have taken care of and brought up the child for at least one year; Stb. 1997, 772, Art. 227 lid 2 BW(1997); Sib. 1997, 772, Art. 228 1 f. BW(1997). A single person must have taken care of and brought up the child for three continuous years before he or she can adopt; Stb. 1997, 772, Art. 228. 1.f. BW(1997) 12 Wijziging van Boek 1 van het Burgerlijk Wetboek(adoptie door personen van hetzelfde geslacht) Kamerstukken 1/1998/99, 26 673, nr 2(voorstel van wet)en nr 3(memorie van toelichting). For an English translation of the text of the bill, see the summary translation by Kees Waaldijk(Leiden University),postedtotheInternetonjUly28,1999,http://www.coc.nl/index.html?file=marriage >Co-parent= adoptions refer to those adoptions in which a person in a same-gender relationship who does not have a legal relationship to the child adopts his or her partner=s child, without severing his or her partner=s parental rights to the child >Stranger= adoptions refer to those adoptions in which neither adoptive parent has a prior legal relationship with the child
widely accepted legal solution for children whose parents are unable, or unwilling, to care for them.9 In fact, it has only been in 1997 that the Dutch legislature extended adoption rights to persons other than married couples;10 in April of 1998, single persons and unmarried heterosexual couples were allowed to adopt for the first time in modern Dutch history.11 While both the Netherlands and the United States have policies allowing stepparent adoptions, legal obstacles have existed in both countries if the adoption petitioners were lesbians or gay men, even if these individuals were the de facto parents of the children they sought to adopt. However, recent court decisions in several of the United States have granted same-gender parent adoptions, and a legislative proposal in the Netherlands12 would allow same-gender couples to adopt, jointly, the children they have been raising together. The purpose of this article is to examine these recent changes and compare the different routes these changes have taken. The first section of the article examines the present status of the case law in both countries. It begins with an analysis of the court decisions in the United States, where case law now makes it legal in numerous states for gays and lesbians to adopt, either as >co-parents= 13 or as >strangers= 14 of the child. The section also includes an analysis of the 9 In the United States, there are over 100,000 children who are eligible for adoption. See Proclamation No. 7145, 3 C.F.R., 1998 Comp., p. 111, 63 Fed. Reg. 59,203 (1998). >Preliminary reports from 42 states for federal fiscal year 1998 project adoptions of at least 36,000 foster children, which includes increases of 7,859 over the average number of adoptions from the previous three years.= Joe Kroll, 1998 U.S. Adoptions from Foster Care Projected to Exceed 36,000, North American Council on Adoptable Children, Adoptalk, Winter, 1999, http://members.aol.com/nacac/1998_Adoptions.html. About 50 to 100 Dutch children are available for adoption each year. DE GROTE ALMANAK VOOR INFORMATIE EN ADVIES (Utrecht: NIZW, 1997), at 525; Kamerstukken II 1994/95, 22 700, nr. 5, p. 13. In 1996, 704 foreign-born children were adopted by Dutch citizens; in 1995, there were 661; and in 1994, only 594. Persbericht Ministerie van Justitie, 13 maart 1997. 10 Wet van 24 december 1997 tot herziening van het afstammingsrecht alsmede van de regeling van adoptie, Stb. 1997, 772, Art. 227-232 BW (1997). 11 The persons adopting must be 18 years older than the child, and the parents (the legal parents, not a donor or biological father who has not recognized the child) must consent to the adoption request; Stb. 1997, 772, Art. 228 lid 1 sub c and d BW (1997). The criteria for adoptions by couples require that the couples have cohabited for three continuous years before the adoption request and that they have taken care of and brought up the child for at least one year; Stb. 1997, 772, Art. 227 lid 2 BW (1997); Stb. 1997, 772, Art. 228.1.f. BW (1997). A single person must have taken care of and brought up the child for three continuous years before he or she can adopt; Stb. 1997, 772, Art. 228.1.f. BW (1997). 12 Wijziging van Boek 1 van het Burgerlijk Wetboek (adoptie door personen van hetzelfde geslacht), Kamerstukken II 1998/99, 26 673, nr. 2 (voorstel van wet) en nr. 3 (memorie van toelichting). For an English translation of the text of the bill, see the summary translation by Kees Waaldijk (Leiden University), posted to the Internet on July 28, 1999, http://www.coc.nl/index.html?file=marriage 13 >Co-parent= adoptions refer to those adoptions in which a person in a same-gender relationship who does not have a legal relationship to the child adopts his or her partner=s child, without severing his or her partner=s parental rights to the child. 14 >Stranger= adoptions refer to those adoptions in which neither adoptive parent has a prior legal relationship with the child
recent Dutch case before the Hoge raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, including present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gender couple of the Dutch and American legal histories concerning same-gender co-parent adoptions. Thesis and homosexuals in general, to adopt. The article then concludes with a comparison and analysis section examines the differences in the two countries= legal systems, the social status of homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender co- parent adoption is in the best interest of the children raised by same-gender couples 2. Case law 2.1 an case law Many gay men and lesbians have children. Gay men may have children from prior marriages they may find a willing surrogate to carry their child, they may father children born to lesbian friends, or they may adopt a child as a single parent. Lesbians may also have children from previous marriages or they may adopt a child as a single parent; most often, however, lesbian couples decide that one or both of the women will have children by alternative insemination, 6 ither with a known donor or an anonymous donor through the services of a sperm bank. In many of these situations, the co-parent wants to ad opt the children so there is legal protection for the children who are being raised in a two-parent household. 8 homo. There is only one state in the United States that has specific legislation prohibiting sexuals from ad opting children, Florida. 9 In the other 49 states, however, it is possible for Kantrowitz, supra note 2: Warmerdam and Gort, supra note 3 The term >alternative insemination= is used in place of >artificial insemination= because of the connotation of the word >artificial, which implies that the child conceived under this procedure is not real. >Alternative insemination= as used in this article refers to medically assisted alternative insemination as well as self-insemination Craig w. Christensen, Legal Ordering of family Values: The Case of gay and Lesbian Families ZOL.REV.1299,1351(199 See infra notes 25-28 for citations to the American cases. See also the Dutch case HR 5 september 1997, NJ1998, 686, rek nr. 8940 FLA STAT. ANN. 63.042(3)(West 1985). New Hampshire also had a statute prohibiting homosexuals from adopting children, N H. REV. STAT. ANN. 170-B: 4(1994 ). However, on May 3, 1999 the statute was repealed, H B. No. 90, 1999 Sess.(NH 1999). The Florida statutory prohibition may be challengeable under a recent U.S. Supreme Court decision, Romer v. Evans, 517 U.S. 620, 116.Ct. 1620
recent Dutch case before the Hoge Raad, involving a request for a co-parent adoption by two women who were raising their children together as a family. The next section of the article sets out the current status of Dutch law as it affects gay and lesbian co-parents, including present adoption laws, joint parental authority, and registered partnerships. The article=s fourth section examines proposed legislation in the two countries concerning the right of same-gender couples, and homosexuals in general, to adopt. The article then concludes with a comparison and analysis of the Dutch and American legal histories concerning same-gender co-parent adoptions. This section examines the differences in the two countries= legal systems, the social status of homosexuals, the social acceptance of adoption, and each country=s underlying assumptions about family law. The article concludes by pointing out how recognition of same-gender coparent adoption is in the best interest of the children raised by same-gender couples. 2. Case law 2.1 American case law 2.1.1 Co-parent adoptions Many gay men and lesbians have children.15 Gay men may have children from prior marriages, they may find a willing surrogate to carry their child, they may father children born to lesbian friends, or they may adopt a child as a single parent. Lesbians may also have children from previous marriages or they may adopt a child as a single parent; most often, however, lesbian couples decide that one or both of the women will have children by alternative insemination,16 either with a known donor or an anonymous donor through the services of a sperm bank.17 In many of these situations, the co-parent wants to adopt the children so there is legal protection for the children who are being raised in a two-parent household.18 There is only one state in the United States that has specific legislation prohibiting homosexuals from adopting children, Florida.19 In the other 49 states, however, it is possible for 15 Kantrowitz, supra note 2; Warmerdam and Gort, supra note 3. 16 The term >alternative insemination= is used in place of >artificial insemination= because of the connotation of the word >artificial,= which implies that the child conceived under this procedure is not real. >Alternative insemination= as used in this article refers to medically assisted alternative insemination as well as self-insemination. 17 Craig W. Christensen, Legal Ordering of Family Values: The Case of Gay and Lesbian Families, 18 CARDOZO L. REV. 1299, 1351 (1997). 18 See infra notes 25-28 for citations to the American cases. See also the Dutch case HR 5 september 1997, NJ 1998, 686, rek.nr. 8940. 19 FLA. STAT. ANN. ' 63.042(3) (West 1985). New Hampshire also had a statute prohibiting homosexuals from adopting children, N.H. REV. STAT. ANN. ' 170-B:4 (1994). However, on May 3, 1999, the statute was repealed, H.B. No. 90, 1999 Sess. (NH 1999). The Florida statutory prohibition may be challengeable under a recent U.S. Supreme Court decision, Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620