When the State Discriminates

Author Carlos A. Ball chronicles the stories of LGBT parents who have fundamentally changed how American law defines and regulates parenthood in this excerpt from The Right to Be Parents: LGBT Families and the Transformation of Parenthood.



Polikoff wrote directly to Mayor Sharon Pratt Dixon (pictured) urging her to review the issue personally.


The letter worked. Several weeks later, after the Mayor’s office asked the Department to reconsider its position, it filed a supplemental report with the court in which it recommended that the adoption petitions be granted.

The facts in second-parent adoption cases are rarely in dispute, and Laura and Victoria’s case was no exception. The record in the case was replete with evidence regarding the lesbian couple’s committed and stable relationship and their ability to provide the girls with much love and good care. There is also in second-parent adoption cases usually little dispute that the children in question would benefit from having two legal parents. As trial judge Geoffrey Alprin eventually concluded, the couple’s claims that Tessa and Maya would benefit legally and emotionally from the court’s approval of the adoption petitions had “overwhelming record support.”

Instead, the issues in most second-parent adoption cases are almost always purely legal ones of statutory interpretation. Although the Department had originally contended that the adoption statute did not permit two individuals of the same sex to adopt the same child, Polikoff noted in her legal papers that the only explicit restriction in the law itself on the ability of anyone to be eligible to adopt was a provision that prohibited married individuals from adopting a child unless their spouses joined in the petition. There was no explicit provision prohibiting two unmarried individuals, regardless of their sex, from adopting together. And in the absence of such a provision, there was no statutory impediment to Laura and Vanessa’s filing adoption petitions that would make both of them the legal parents of both girls. 

Potentially more problematic for Polikoff’s clients was the termination of parental rights provision contained in the District’s adoption statute. That provision stated that after an adoption decree is granted, “all rights and duties... between the adoptee [and] his natural parents... are cut off.” In dealing with this provision, Polikoff argued that its application was discretionary rather than mandatory because the legislature could not have intended for the rights and obligations of the “natural” parent to be terminated in every adoption case regardless of whether doing so was in the best interests of the children. The provision in question, Polikoff explained in her legal papers, protected the welfare of children in cases in which the “adoptive parents and the adoptee will be forever strangers with the biological parents.” But this was clearly not the case in a proposed adoption of children by two individuals who intended for the same family unit that existed before the adoption to remain in place after the adoption.

Judge Alprin eventually agreed with Polikoff’s analysis, noting in an opinion issued in August 1991 that “it would be unfortunate if the court were compelled to conclude that adoptions so clearly in the best interests of the prospective adoptees could not be granted because of a literal reading of a statutory provision obviously not intended to apply to the situation presented in these cases.” The judge also pointed out that the “cut off” provision, according to the statute itself, did not apply to adoption petitions filed by stepparents.  Alprin concluded that it would be as inappropriate to require the termination of the “natural” parent’s right in a case involving a lesbian couple in a committed relationship as it would be in a case in which a stepparent sought to adopt the child of his or her spouse.

With their legal victory in hand, Laura and Victoria now had the peace of mind in knowing that they were each the legal parents of both their daughters. Unfortunately, that sense of security was tested in the most tragic of ways two years later. One day, while Victoria was driving her car with her two daughters in the back seat, a sudden and violent rain storm hit. The storm’s fierce winds caused a large tree limb to fall, smashing through the windshield and striking Victoria with great force. Although the children were not harmed, Victoria was severely injured. She survived many hours of surgery, but died two weeks later of an infection.

Victoria’s tragic death would have left four-year-old Maya an orphan, an unsettling possibility that was avoided only because she had been adopted by Laura. That adoption also meant that Tessa (and not just Maya) received Social Security death benefits after Victoria’s death. This provided Laura with additional funds to take care of the girls’ needs after the loss of Victoria’s income. As difficult as it was for Laura and her two daughters to cope with Victoria’s death, the second-parent adoption worked as intended by providing stability, continuity, and economic benefits to the survivors. As Judge Alprin put it after Victoria’s death, “it is tragic that we had to have such obvious and direct evidence of the need” for the second-parent adoption.

Tags: Politics