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Miscellanea: Adoption by homosexual and unmarried heterosexual couples

Sommario: La tendenza in alcuni paesi de l’ovest di dare alle coppie omosessuali dei diritti e privilegi che una volta appartenevano soltanto agli sposati si e manifestata recentemente negli sforzi di permettere agli omosessuali l’adozione dei bambini. Questo articolo esamina la decisione della corte civile dello stato americano di New Jersey che permise a due uomini omosessuali di adottare un piccolo ragazzo. L’articolo studia le questioni morali sollevate da un tale fenomeno, comprensivo dei bisogni e dei diritti dei bambini di crescersi e svilupparsi psicosessualmente nell’ambiente di uno stabile rapporto eterosessuale e coniugale. Il permesso dato a tali adozioni viene giudicato come un indebolimento dell’essere unico e del primato del matrimonio nella legge e nella politica pubblica, paragonandolo ad altri rapporti liberamente scelti.  Si suggerisce anche come i  cattolici potrebbero lottare per riaffermare le protezioni del matrimonio nella legge civile.

Contemporary confusion about the meaning of the natural state of marriage and of the qualitatively unique situation of the married vis-à-vis society is growing.  This confusion finds expression in the growing tendency in some societies to treat the unions of two people, of the same or different sexes, as functionally equivalent to marriage.  Few societies have yet formally decreed that such couplings are de jure equivalent to marriage (although the American States of Hawaii and Vermont may be proceeding in that direction)[1]. A growing number of societies are, however, allowing these relationships to be treated as tantamount to marriage, de facto marriages for purposes of procuring certain social benefits hitherto reserved to the married (e.g., inclusion of a dependent spouse under the other’s health insurance benefits, rights of inheritance, etc.).

A particularly neuralgic area of concern is the question of whether homosexual couples or unmarried heterosexual couples should be allowed legally to adopt children. This issue arose in 1997 in the American State of New Jersey.  It has since also manifested itself in a decision of the Netherlands’ Council of Ministers, in fall 1998, to permit partners of the same sex to adopt a child provided that the partners have lived together at least three years, the child in question has been in the partners’ care for at least one year, and the child is of Dutch nationality[2].  

I. The Situation

Jon Holden and Michael Galluccio are homosexuals who, according to the suit they filed in New Jersey’s Bergen County Superior Court, are “in a long-term committed relationship”. They were foster parents of a baby boy, C.K., whom they sought to adopt. That child had already come into the permanent custody of the State. (In court papers and subsequent radio interviews, the pair also announced their desire to adopt a baby girl in their foster care if/when that child became eligible for adoption by coming into the permanent custody of the State.)  Although both males participated, with the approval of New Jersey’s Division of Youth and Family Services (DYFS) in various State-required pre-adoption programs, DYFS eventually sought to award custody of the boy only to Mr. Galluccio, based on DYFS regulation^]which allow only one partner of a cohabiting couple to adopt a child.  In practice, adoption by unmarried cohabiting couples could be carried out in New Jersey using a two-step process: the first person petitions for adoption with the consent of the State and the second person petitions for a “second parent adoption” decision.

Messrs. Holden and Galluccio brought suit in the Chancery Division of Bergen County Superior Court, challenging the DYFS regulation as expanding on the requirements of New Jersey’s adoption laws and as conflicting with the cardinal principle of adoptions being governed by the “best interests of the child” test.  They also challenged the regulation as a violation, for various reasons, of the Constitutions of the United States and New Jersey, seeking to overturn the DYFS rule^[2]. They also filed a separate adoption petition for the child.^[3] While various motions were filed, the State of New Jersey did not aggressively seek to defend its own DYFS rule.

The petition for the adoption of baby boy C.K. was granted in late October 1997. On December 17, 1997 a consent judgment in Holden et al. v. NJ Department of Human Services et al. was entered before Judge Sybil Moses. In the judgment, while not conceding “that the DYFS policy at issue violated State law or the State or Federal Constitutions” New Jersey agreed to repeal that policy and to notify State agencies “that unmarried co-habitating couples seeking to adopt shall not be prohibited from jointly adopting due to their marital status or sexual orientation”. The court also entitled “any lesbian or gay couple in New Jersey” to bring legal action to enforce the consent judgment “to the extent that they have been denied the right to adopt based on their marital status or sexual orientation as opposed to being evaluated based on their qualifications as prospective adoptive parents”.

The upshot of this decision is that the adoption of children in New Jersey no longer takes cognizance of either the marital status or the sexual orientation of the persons seeking to adopt. Repeal of the DYFS policy means that unmarried heterosexual couples and homosexual couples are legally indistinguishable from each other and stand on the same footing as married couples in terms of adopting a child.

Holden et al. v. NJ Department of Human Services et al. follows upon an October 1995 case in which a New Jersey Superior Court ruled that cohabitating homosexual persons could not be barred from jointly adopting^[1.

In that case, two lesbians had been living together for some time and one of them became pregnant with twins by artificial insemination. Her lesbian partner sought to adopt the children but was denied at the trial court level. The Appellate Division reversed the decision and granted the adoption, ruling that it was in the best interest of the children.

II. Moral Aspects

While moral theologians can develop ethical arguments against adoptions by unmarried heterosexual partners and/or homosexual partners, there is need for the insights of Catholic social scientists. Their research strengthens the arguments of the moral theologians as well as providing a broader secular ground upon which to buttress public policy arguments. The ethical arguments must, moreover, distinguish between unmarried heterosexual couples and homosexual couples, something that the State of New Jersey no longer does.  It should be noted, moreover, that both kinds of situations are immoral, providing the wrong model for young people in society.

- The Unmarried Heterosexual Couple

It seems that one may argue against an unmarried heterosexual couple adopting a little boy on the score that the child is not provided with the sense of security and ongoing stability which he needs and to which he has a right . 

Unmarried heterosexual unions are often lacking in stability. Even if such couples do marry, they have a higher divorce rate than do couples who wait until marriage to have a family. The growing child is entitled to a stable family relationship with both parents and siblings. This does not generally happen in the unmarried heterosexual relationship; indeed, a growing body of social science data indicates that the presence in a household of an adult male unrelated to the child’s mother by kinship or marriage is one of the most dangerous environments for a child.  The State should not, therefore, permit such couples to adopt children.

On the other hand, it may be argued that the child of the unmarried heterosexual couple has a father and a mother and that he can receive from each parent what the other cannot provide. In the order of nature a growing child needs the influence of both a father and a mother. A little boy should identify with the parent figure of the same sex; likewise, a little girl should identify with her mother or a female parental figure. The little boy also needs the influence of his mother or another maternal figure, particularly if the mother dies while he is very young.  The little girl likewise needs to relate to her father, particularly during the teenage years when she needs the father to affirm her womanhood.^[1] At an earlier stage, the little girl also needs to identify with her mother as feminine. In short, just as the grown man and woman who have already identified themselves as male and female are attracted to each other, so children’s natural inclinations are for a father and a mother. The polarity of the sexes leads to the complementarity of the sexes^[2].

While it is true that in New Jersey a single person may adopt a child, this is not an ideal situation. Agencies may allow it, provided that the single person furnishes ways for the influence of the opposite sex on either the boy or girl.  The justification for single persons adopting children may perchance be found in specific circumstances where the child would otherwise have no one to care for him, e.g., some minority or handicapped children. Again, while such a situation may be tolerated, it is far from the ideal that should be preferred in public policy.

- The Homosexual “Couple”

Male same-sex couples adopting little boys can be argued against on several grounds. Such a child is deprived during his formative years of the opposite sex parent, i.e., of a mother figure. Such a child can hardly be lead to an appreciation of either the polarity or complementarity of the sexes in a same-sex environment. Such a child will also grow up with the wrong norm of human sexuality: two men instead of a father and a mother married to each other.

It is not necessarily being claimed that the little boy will tend to develop an erotic attraction to persons of his own sex or that the two “fathers” will find the boy the object of sexual attraction. The child may identify well with both “fathers” while recognizing that neither may be his natural father and he will lack the presence of a loving mother during his formative years. As he enters into school life he will wonder why he does not have a mother and, unless the two “fathers” make real provision for the presence of a loving woman, the child will probably suffer in the same way as youngsters reared in an orphanage where adequate paternal and maternal care is lacking. The difference, however, is that the young boy or girl in the orphanage is not deprived of that care because of the deliberate plan to have two people of the same sex rearing that child.

In the hypothetical case of two lesbian women adopting a female child, one can argue that the child will be deprived of the regular presence of a masculine parental person such as a father, grandfather or uncle. During

adolescence, moreover, this growing woman will need the affirmation of a father or fatherly person more than she will need affirmation from a mother^[1]. As has been already mentioned, this does not mean that she will necessarily develop erotic attractions towards either of her “mothers,” but lacking affirmation from a fatherly figures is considered a real deprivation in the psychosexual development of a woman.  Like the boy, the little girl needs two parents of opposite sexes.

Children suffer in various aspects of their social adjustment when they are not raised in a home in which a father and a mother are present.  Half a century ago Margaret Mead noted:

One of the most important learnings for every human child is how to be a full member of its own sex and at the same time fully relate to the opposite sex. This is not an easy learning, it requires the continuing presence of a father and a mother to give it reality. [A child] must . . . watch both parents discipline and mould their own impulses so that the child is protected and at adolescence be set free by both parents to go out into the world^[2].

Social scientific literature continues to amass compelling data about the high divorce rate, the increase of single- parent families, the growth of out-of-wedlock births, and violence in dysfunctional families which are both caused by and continue to cause the weakening of the traditional institutional family structure^[3]. All the more reason, children reared in same-sex unions will suffer the deprivations of insecurity and the love of an opposite-sex parent. The Catholic vision of family life does not see parenthood as merely quantitative -there are two adult figures- but also qualitative: those two adult figures need to embody the polarity and complementarity of the sexes, “male and female He created them” in the context of a permanent union called marriage.  Sexual identify is not just an optional and accidental overlay of otherwise androgynous “parents.” Even if some were to hold, dato non concesso, that insufficient data exists to prove this claim empirically, one would be put in the position of having to admit that we do not know the full extent of the damage to a child which may be caused by obliterating the sexual complementarity of the family (including the sexual complementarity of the adoptive family). To put children at risk of such damage, not knowing the possible extent of such damage which can be wreaked on the child, is to be willing to use children as guinea pigs in a social experiment.  It wills to expose such children to risk, violating the elementary ethical principle primum non nocere. It treats such children as things, a posture unworthy of the human dignity of the child, a tragedy compounded by the willingness to risk such harm on one whom, as an orphan, is already victimized.

Another argument against same-sex couples of either sex adopting children is the statistical data which indicates the brevity of such unions, particularly among male homosexuals. From data presented by authors favorable to same-sex unions, it is clear that such unions are unstable.^[1] The young boy cannot be sure that the two men will remain together. There is the added confusion which he will experience as he meets homosexual friends of his two “fathers” at home or elsewhere.  There is also evidence of an “extraordinarily high incidence of violence among lesbian couples”^[2], posing questions about how such violence would impact upon an adopted female or male child in such a setting.

Beyond specific arguments against persons with homosexual tendencies adopting infants and children, there are the much more persuasive arguments based upon the very nature of Christian marriage and the family, articulated in Pope John Paul II’s 1981 Apostolic Exhortation Familiaris consortio.

Familiaris consortio speaks of the two-in-one-flesh communion of husband and wife, their role as cooperators with God in the procreation of children, their awesome responsibilities as fathers and mothers, and the rights of children to be nourished in an environment wherein they receive love and a sense of belonging.  Such is the Christian family.  Married couples who have not been able to have children may choose, for various reasons, to adopt children who have no home of their own. This is significantly different from same-sex couples taking advantage of the civil law to adopt small children, thereby depriving those children of opposite-sex parents committed to one another in Christian marriage and family li^]fe. 

Pope John Paul II speaks of the significance of the family for the good of the Church and of the whole world.  He calls marriage and the family “one of the most precious of human values” (FC # 1).  Both marriage and family were willed by God in the very act of creation; they are “interiorly designed to fulfillment in Christ, and have need of his graces in order to be healed of the wounds of sin and restored in their ‘beginning,’ i.e., to full understanding and the full realization of God’s plan” (# 3).

A same-sex couple cannot achieve the kind of unity found in the husband-wife relationship; it is not a family in the Christian sense.  As Familiaris consortio says, “the family which is founded and given life by love is a community of persons: of husband and wife, of parents and children, of relatives” (# 18). The Christian family is, then, meant to serve the community, the Church and the world: it is know to imagine how same-sex couples adopting a little child can do as much. 

In a larger sense, Holden et al. v. NJ Department of Human Services et al. is not so much about one concrete adoption as about obliterating distinctions in public policy between marriage and other forms of “union,” be they unmarried heterosexual couples or homosexual couples. The State of New Jersey, in its “defense” or the DYFS regulation under attack, retreated into an obfuscation of legal issues about who had standing to file the suit and the proper venue in which it should be heard, but New Jersey failed to press the core of the issue: that there is a legitimate, rational and even compelling basis in public policy to distinguish marriage from and give it preference over other forms of “union”. In light of the current suit underway in Hawaii to force that State to legalize “same-sex marriages,” civil societies have a real need to defend the distinctiveness and primacy of marriage against various imitations. Whether given societies will do so or not is another question. From a Catholic perspective, there ought to be no question that they should: society has a legitimate interest in the health of its most basic cell, and the long-term health of the former lies in direct ratio to the health of the latter.

New Jersey’s legal and logical ability to make the case for the distinctiveness and primacy of marriage against imitations that ape its appearance (persons of two sexes with no publicly sanctioned commitment to each other; persons of one sex with or without such a publicly sanctioned commitment) is made more difficult by provisions of New Jersey’s “Law Against Discrimination” (LAD) which include “sexual orientation” as a protected category.  New Jersey’s inclusion of such provisions in its anti-discrimination laws is similar to provisions found in various other American jurisdictions, often naively enacted. Ostensibly enacted to protect homosexual persons against discrimination, such statutes have in practice been employed as driving wedges to advance a homosexual agenda that (1) seeks to obliterate any distinctions between heterosexual and homosexual unions, depriving marriage of the qualitative distinctiveness it has traditionally enjoyed in Western civilization and (2) to bring the full weight of governmental power behind social support and sanctions leading to treatment of homosexual behavior as wholly normal and fully acceptable. The pushing of such agendas can be seen on several fronts, e.g., efforts to compel the Boy Scouts of America to accept homosexual scoutmaster^]. In the early 1990s the Congregation for the

Doctrine of the Faith warned against the use of so-called anti-discrimination laws which were in fact being used to advance a homosexual agenda in public policy.^[1] 

Keith Fournier, the executive director of the Catholic Alliance, sums up arguments against two persons of the same sex who are erotically attracted to each other from adopting a child of the same or opposite sex thusly:

What we are concerned about is not so much the adoption but what it portends, because we believe that it is part of the strategy of the homosexual community to have the courts and legislators recognize homosexual partners on the same level as heterosexual marriages. There is no question about that. It’s part of a strategic effort by a portion of the homosexual community, and that’s wrong. It’s not only morally wrong but it’s bad public policy and it’s not good for children, who deserve the best environment.  The statistics are clear: the best environment is a stable, two-parent, marriage-based home. The case is another effort to redefine marriage and the family. In a sense, we need to get beyond this case, and move on to the bigger question. The traditional definition of a family is a mother, father, and children. There is room for divergences such as single parents and orphans, but we don’t redefine the institution of marriage which the Church teaches is the first vital cell of society.

III. Conclusion

In the case at hand, two active homosexuals adopting a baby boy, it may be argued that it is  unethical for at least three reasons: (1) the boy is deprived of his natural right to have a father and a mother in a stable and secure family life; he will have an immoral model of sexuality placed before him; and (3) since he will

grow up with a homosexual male couple, it is probable that he will not have a lasting secure environment, because the duration of male homosexual unions is statistically brief^[1].

There is a clear need in most Western societies at least for once again enshrining the principle of the distinctiveness and primacy of marriage in public policy and law.  The “Defense of Marriage Act” in the United States might be one example of such legislation.  It may also include modification of adoption laws to re-establish a primacy of preference to married couples in the adoption of children. It might include amendments or even repeal of certain “anti-discrimination” laws which are being used as battering rams to force the legal acceptance of homosexual activity on society. It may even require amendments to Constitutional provisions in those countries where judicial interpretation of Constitutions exist and the courts persist in inventing “rights” to homosexual activity, sometimes out of whole Constitutional cloth. 

The Holden case from New Jersey poses two questions that have wider social moral implications: the immediate problem of adoptions by homosexuals and the larger problem of the progressive ratification in public policy of a stance that publicly accepts homosexual activity as normal and legitimate. Holden is in some ways the tip of an iceberg, raising issues that Catholic citizens and leaders, lay and clerical, prudently need to engage now.