The Supreme Court of Puerto Rico is currently considering whether Puerto Rico’s laws permit the adoption of a child by a non-biological parent who is the same-sex partner of the child’s legally recognized parent. Such adoptions are typically referred to as “second-parent” adoptions because they occur in situations where the child already has a legally recognized relationship with one (usually biological) parent and the adoption provides the same recognition to an additional parent. Most U.S. states already allow second-parent adoptions by a same-sex partner, but so far, Puerto Rico does not.
This case, In the matter of AAR, involves two women in a committed relationship who have co-parented a child from birth. While not contesting that the non-biological mother has functioned in every important respect as the child’s parent, the lower courts have applied a narrow reading of Puerto Rico’s adoption statute and denied her petition, saying second-parent adoption is available only to opposite sex partners.
Significantly, the courts have not inquired as to the best interests of the child in question. This is unfortunate both because this is standard for adoption decisions in Puerto Rico (and most jurisdictions) and because second-parent adoption is critically important to the children of same-sex couples. As in most cases, granting the adoption in this case would merely formalize a parental relationship that already exists in fact. This legal recognition is psychologically significant to children with same-sex parents as an indication of their families’ equal dignity and legitimacy. Adoption is also of great practical value because of the many rights and privileges that attach to the parent-child relationship. These practical considerations include custody, inheritance, financial support, medical decision-making, and many other legal protections. In light of these considerations, second-parent adoption is clearly in the best interests of children being raised by same-sex parents.
On Thursday, November 12, 2009, the Sexuality and Gender Clinic offered its expertise to the Puerto Rican Supreme Court by filing an amicus brief in order to ensure that the most current developments in international and comparative law related to sexual orientation, gender, and family law were made available to the Court. The Clinic took the position that international and comparative human rights law together support an interpretation of Puerto Rico’s adoption law that would enable children in families with two same-sex parents to be adopted by their non-legal parent. In doing so the amicus brief drew the Court’s attention to the international human rights norms that enshrine the rights of the child, the rights of the family and the right of the individual to be free from discrimination on the basis of sexual orientation. It also pointed to the trend in the both the United States and around the world towards interpreting adoption statutes in a way that permits second-parent adoption without regard to sexual orientation.
The Clinic concluded that, by according due consideration to the human rights law and norms that have long informed the Commonwealth’s jurisprudence, the Court can and should interpret the Puerto Rican adoption law at issue to permit the child in this matter to be adopted by a parent she has known her entire life.
Caitlin Boyce LLM, Catherine Poynter 3L, Brian Ward 3L – authors of the AAR Amicus Brief for the Sexuality and Gender Law Clinic