The international legal context governing intercountry adoptions by gay men and lesbians.
Adoption & Fostering › Vol. 35 Nbr. 1, March 2011
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The international legal context governing intercountry adoptions by gay men and lesbians.
Introduction
The adoption of children by gay men and lesbians in domestic contexts is increasing and can operate in a way that primarily focuses on the best interests of children by providing them with loving homes (Hill, 2009). However, the situation for intercountry adoptions by gay men and lesbians is constrained and in some circumstances impossible given the stances taken by countries of origin. Despite receiving countries such as Germany, Iceland, Denmark, the United Kingdom, the Netherlands, Norway, Sweden, Belgium, Spain, Israel, South Africa and some US, Australian and Canadian states having legislation, policies or practices that expressly allow for adoptions by gay men and lesbians, the implementation of the latter in countries of origin is not so straightforward. By definition, a 'country of origin' is one where a child is habitually resident before she or he is moved to a 'receiving country' for the purpose of an intercountry adoption (Article 2, The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993--hereafter THC-93). The entry of homosexual couples into the intercountry adoption 'market' is virtually unfeasible in reality given the fact that so much depends on the prevailing practice in the countries of origin (assuming they are duly informed of the situation of the prospective adoptive parent). Extremely few of them have legal frameworks for creating filiation ties for this group of people. Decisions about the numbers of children who will be available for adoption and to whom are part of the prerogative of each country of origin. Routinely, they use this right to set very strict conditions as to the suitability of prospective adoptive parents, taking account of factors such as age, presence of biological children, marital status, financial situation and religion, as well as sexual orientation. As indicated in the first part of this article, this prerogative is well founded in international standards. The second section provides an overview of how this entitlement forms part of the national legislative framework relating to adoptions by gay men and lesbians, a difficult endeavour given that to date no global comparative analysis of such provisions among countries of origin exists. This art...See the full content of this document
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