Abstract
The gay adoption debate has been focused on how placement bans deprive qualified gay and lesbian prospective parents of the opportunity to adopt children who are not likely to be permanently placed. Litigants challenging placement bans have focused primarily on the rights of prospective parents. States have defended these bans in ways that obscure the fact that they violate children’s rights by depriving them of the placement option that best serves their interests. Supply and demand realities, the best-interests-of-the-child standard, and the documented harms associated with non-placement demand state action that facilitates rather than frustrates the possibility of adoption. Confining thousands of orphans to extended temporary and institutional care where they will never experience the benefits of a stable, secure, and permanent home constitutes a breach of the state’s fiduciary obligation to the children within its care and custody and a violation of children’s liberty interest in freedom from state action that contravenes their best interests. Adoption is the chief aspiration for waiting children in foster care and the pursuit of a permanent placement for each orphan is the state’s fiduciary and constitutional duty. To remove children from their homes and parents because they have been abused or neglected only to subject them to state care that limits their access to permanent homes is a tragedy of errors. To justify doing so in the name of children and their best interests is indefensible.
Recommended Citation
Washinton, Tanya M.
(2013)
"Once Born, Twice Orphaned: Children’s Constitutional Case Against Same-Sex Adoption Bans,"
Utah Law Review: Vol. 2013:
No.
4, Article 2.
Available at:
https://dc.law.utah.edu/ulr/vol2013/iss4/2