Search
Future Students | Current Students | Alumni & Friends | Curriculum | Faculty | Centers | Clinic | Library | Career Planning | CLE | News | Centennial

Opening Civil Marriage and Adoption to Same-Gender Couples:
A Netherlands-United States Comparison

National Lesbian and Gay Law Association
Lavender Law® 2001
Dallas, Texas
October 25-27, 2001

European Laws Update Workshop

Nancy G. Maxwell
Professor of Law
Washburn University School of Law
Topeka, Kansas, USA

1. Introduction
2. United States developments on same-gender co-parent adoption
   1. Legislation on same-gender co-parent adoptions
      1. Allowing the adoption: Vermont, Vt. Stat. Ann. tit. 15A § 1-102(b)
         "If a family unit consists of a parent and the parent's partner, and the adoption is in the best interests of the child, the partner of the parent may adopt a child of the parent. Termination of the parent's parental rights is unnecessary in an adoption under this subsection."
      2. Prohibiting the adoption: Florida, Fla. Stat. Ann. § 63.042(3)
         "No person eligible to adopt under this statute may adopt if that person is a homosexual."
   2. Case law on same-gender co-parent adoptions
      1. Absence of statutory provisions
      2. Appellate courts denying same-gender co-parent adoptions: Use of strict construction of state adoption codes:
         Colorado: In re Adoption of T.K.J. and K.A.K., Children, 931 P.2d 488 (Colo. Ct. App. 1996), NO. 95CA0531, 95CA0532, rehearing denied (1996), cert. denied, (1997); Connecticut: In re Adoption of Baby Z, 247 Conn. 474, 1999 WL 33449 (1999); Ohio: In re Adoption of Jane Doe, 719 N.E.2d 1071 (Ohio Ct. App. 1998); Pennsylvania: In re Adoption of R.B.F. and R.C.F., 762 A.2d 739 (Pa. Super. Ct. 2000) and In re Adoption of C.C.G. and Z.C.G., 762 A.2d 724 (Pa. Super. Ct. 2000); Wisconsin: In re Angel Lace M., et al., 184 Wis.2d 492, 516 N.W.2d 678 (1994).
      3. Appellate courts granting same-gender co-parent adoptions: Use of liberal construction of state adoption codes and the best interest of the child standard.
         District of Columbia: In re M.M.D. & B.H.M., 662 A.2d 837 (D.C. Cir.1995); Illinois: In re Petition of K.M. and D.M., 274 Ill.App.3d 189, 653 N.E.2d 888, 210 Ill. Dec. 693 (1995); Massachusetts: Adoption of Galen, 425 Mass. 201, 680 N.E.2d 70 (1997), Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315 (1993), Adoption of Susan, 416 Mass. 1003, 619 N.E.2d 323 (1993); New Jersey: In re Adoption of Two Children by H.N.R., 285 N.J. Super. 1, 666 A.2d 553 (1995); New York: Matter of Jacob, 86 N.Y.2d 651, 636 N.Y.S.2d 716, 660 N.E.2d 397 (1995) (also involving Matter of Dana, which the court combined with Matter of Jacob); Vermont: Adoptions of B.L.V.B. and E.L.V.B., 160 Vt. 368, 628 A.2d 1271, 27 A.L.R.5th 819 (1993).
      4. Trial courts granting same-gender co-parent adoptions:
         Alaska: In re A.O.L. No. 1JU-85-25-P/A (Alaska 1st Jud. Dist. July 23, 1985), In re Adoption of a Minor (C), No. 1-JU-86-73 P/A (Alaska 1st Jud. Dist. Feb. 6, 1987); California: In re Adoption of N.L.D., No. 18086 (Cal. Super. Ct. San Francisco County Sep. 4, 1987), In re Adoption Petition of Achtenberg, No. AD 18490 (Cal. Super. Ct. San Francisco County, 1989), In re Adoption of Carol, No. 18573 (Cal. Super. Ct. San Francisco County, 1989), In re Adoption of Nancy M., No. 18744 (Cal. Super. Ct. San Francisco County, 1990); Emily Doskow reported being the attorney of record for more than 50 adoptions in the county courts of California in Adoption Options for Gay and Lesbian Couples: An Interview with Emily Doskow, 20 Fam. Advoc. 40, 44 (Summer 1997; hereinafter cited as Adoption Options); Indiana: In re Adoption of Hentgen-Moore, No. 91CO1-9405-AD-009 (Ind. Cir. Ct. White County Mar. 24, 1995); Oregon: In re Adoption of M.M.S.A., No. D8503-61930 (Or. Cir. Ct. Multnomah County Sept. 4, 1985); Pennsylvania: In re Adoption of E.O.G. & A.S.G., 14 Fiduc. Rep.2d 125 (Pa. C. P. York County Apr. 28, 1994); Texas: Suzanne Bryant reported an adoption in a Texas court, Suzanne Bryant, Second Parent Adoptions: A Model Brief, 2 Duke J. Gender L. & Pol'y 233 n.a (Spring 1995); Washington: Interest of E.B.G. No. 87-5-00137-5 (Wash. Super. Ct. Thurston County Mar. 29, 1989), In re Adoption of Child A and Child B, No. 88-5-00088-9 (Wash. Super Ct. 1988), In re Adoption of Child No. 1 and Child No. 2, No. 89-5-00067-7 (Wash. Super. Ct. Thurston County 1989); John Stevenson reported an adoption in a Washington state court, John Stevenson, Judge Postpones Decision on Lesbian Custody: Lawyer Argues that N.C. ‘Public Policy' Invalidates Adoption, Herald-Sun (Durham, N.C.), July 11, 1997 at C1. Because most trial-court decisions are not published, an accurate number of how many states' trial courts have granted same-gender co-parent adoptions is difficult to obtain, particularly since adoption cases in many states are confidential. According to a 1996 report by the Lambda Legal Defense Fund, courts in at least 21 states have granted same-gender co-parent adoptions. John Cloud, A Different Fathers' Day, Time, Dec. 29, 1997-Jan. 5, 1998, at 106.
   3. Proposed legislation based on case law:
      

      Uniform Adoption Act § 4-102 Standing to Adopt Minor Stepchild Official Comment: "In addition to permitting individuals who are within the formal definition of ‘stepparent' to adopt a minor stepchild under this Article, Section 4-102 allows an individual who is a de facto stepparent, but is not, or is no longer, married to the custodial parent, to adopt as if he or she were a de jure stepparent. To file a petition under this Article, the de facto stepparent or ‘second parent' has to have the consent of the court and the custodial parent, whose parental rights will not be terminated by an adoption under this Article. In addition, for the court to grant the petition, the other requirements of this Article have to be met, including the court's determination that the adoption is in the minor adoptee's best interests. See e.g., Adoption of B.L.V.B., 628 A.2d 1271 (Vt. 1993) (de facto stepmother allowed to adopt her unmarried [female] partner's biological children because it ‘serves no legitimate state interest' to deny the children ‘the security of a legally recognized relationship with their second parent'). See similar analysis in Matter of Evan, 153 Misc. 2d 844, 583 N.Y.S.2d 997 (Surr. 1992)." Unif. Adoption Act § 4-102 Standing to Adopt Minor Stepchild, § 4-102 (1994), 9 U.L.A. Comment, Electronic Pocket Part Update (1998).

3. United States developments on opening marriage to same-gender couples
   1. United States case law
      1. Challenging prohibitions against marriages of interracial couples
         —Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967)
      2. Challenging prohibitions against marriages of same-gender couples: The 1970s cases
         –Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971)
         –Jones v. Hallahan, 501 S.W.2d 588, 63 A.L.R.3d 1195 (Ky 1973)
         –Singer v. Hara, 522 P.2d 1187 (Wash. Ct. App. 1974)
      3. Challenging prohibitions against marriages of same-gender couples: The 1990s cases
         1. Jurisdictions limiting marriage to opposite-gender couples: District of Columbia and New York
            –Dean v. District of Columbia, 653 A.2d 307 (D.C. App. Ct. 1995)
            –Storrs v. Holcomb, 168 Misc. 2d 898, 645 N.Y.S.2d 286 (1996)
         2. Jurisdictions supporting claims of discrimination: Hawaii, Alaska, and Vermont
            –Baehr v. Lewin, 852 P.2d 44 (Haw. 1993), Baehr v. Miike, 1996 WL 694235 (Haw. Cir. Ct.), http://www.state.hi.us/jud/20371con.htm (Haw. 1999)
            –Brause v. Bureau of Vital Statistics, 1998 WL 88743 (Alaska Super. Ct.)
            –Baker v. State of Vermont, 744 A.2d 864 (Vt. 1999)
      4. Challenging prohibitions against marriages of same-gender couples : An analysis of the United States case law
   2. United States legislation
      1. The United States legislative response to Baehr v. Lewin
      2. The enactment of domestic partnership/civil union legislation
4. Legal developments in The Netherlands
   1. Dutch case law
      1. Challenging prohibitions against marriages of same-gender couples:
         –HR 19 oktober 1990, NJ 1992, 192, m.nt. EAAL en EAA (homohuwelijk)
         –Rb Amsterdam 13 februari 1990, NJCM-Bulletin 1990, p. 456-460, m.nt. K. Boele-Woelki en P.C. Tange
      2. Challenging prohibitions against co-parent adoptions of same-gender couples:
         –HR 5 september 1997, NJ 1998, 686 rek.nr. 8940
   2. Dutch legislation
      1. Moving toward equality: Registered partnership legislation
      2. Opening civil marriage and co-parent adoption to same-gender couples: The report of the Kortmann Committee
      3. Expanding the definition of parenthood
         1. Adoption opened to single individuals and unmarried heterosexual couples
         2. Joint parental authority legislation
      4. Opening civil marriage to same-gender couples: Changing the legal definition of marriage
         –Book One, Article 30, The Netherlands Civil Code
         1.    A marriage can be contracted by two persons of different sex or of the same sex.
         2.    The law only considers marriage in its civil relations.
      5. Opening co-parent adoption to same-gender couples:
         –Book One,
         Article 227

         1. Adoption is effected by a decision of the district court at the joint request of two persons or at the request of one person alone. Two persons cannot make a joint adoption request if according to article 41 they are not allowed to marry each other.
         2. The joint request of two persons can only be done, if they have been living together during at least three continuous years immediately before the submission of the request. The request by an adopter who is the spouse, registered partner or other life partner of the parent, can only be done, if he has been living together with that parent during at least three continuous years immediately before the submission of the request.
         3. The request can only be granted if:
            –the adoption is in the evident interest of the child,
            –at the time of the adoption request it is established, and for the future it is reasonably foreseeable, that the child has nothing to expect anymore from its parent or parents in his/her/their capacity of parent(s) and
            –the conditions in article 228 are fulfilled as well.
            Article 228
            . . . (f) [the condition] that for at least three continuous years the adopter has been caring for the child and bringing it up, or, in the case of joint adoption by two persons, that for at least one year they have been caring for the child and bringing it up; if the spouse, registered partner or other life partner of the parent of the child is adopting, the condition is that the adopter and that parent have been caring for the child and bringing it up for at least one year, unless the child is born of the relationship of the mother with a life partner of the same sex;
5. Comparison and analysis of the Dutch and American legal history concerning opening marriage and co-parent adoption to same-gender couples
   1. Differences in legal systems
   2. Differences in the social status of homosexuals
   3. Differences in the social status of adoption
   4. Differences in the social status of non-marital co-habitation
6. Conclusion

For a detailed analysis, see:

Nancy G. Maxwell, Astrid A.M. Mattijssen, and Charlene Smith, Legal Protection for All the Children: Dutch-United States Comparison of Lesbian and Gay Parent Adoptions, 17 Arizona Journal of International and Comparative Law 309 (2000)–earlier version published in 3:1 Electronic Journal of Comparative Law (August 1999), http://law.kub.nl/ejcl/31/abs31-2.html

Nancy G. Maxwell, Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison, 18 Arizona Journal of International and Comparative Law 141 (2001)–earlier version published in 4:3 Electronic Journal of Comparative Law (November 2000), http://law.kub.nl/ejcl/43/abs43-1.html