Court Upholds LGBT Adoption Ban in Puerto Rico

Male couple holding an infant

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The Puerto Rico Supreme Court last week upheld the island’s ban on same-sex couples adopting children, noting that the legislature could change the law if it wished.  

‘The state … has not criminalized their sentimental relationship, but it does not have a constitutional obligation to award this relationship the same rights that other relationships have when it comes to adoption procedures,’’ the majority opinion said.

The ruling quashed the efforts of a woman to adopt her 12-year-old child, who was conceived by in vitro fertilization by the woman’s partner with whom she has been in a 20-year relationship.

Adoption confers a number of legal rights on a parent, starting with legal custody in case the other parent dies. Official parenthood also includes the power to make medical decisions and visit a child in the hospital, as well as locking in various government, inheritance and insurance benefits for the child.

A number of states have an effective block on LGBT adoption by banning second-parent adoption in cases where the couple isn’t married — which is impossible in states that don’t recognize same-sex marriage.

Puerto Rico goes several steps further, affirming in the court decision that not only do second-parent adoptions not apply in the territory, but that same-sex couples cannot adopt under any circumstances.

 

Stalled Momentum

LGBT: the New Civil Rights Movement logoThe court’s ruling came as a disappointment to activists who have seen progress in other areas of LGBT civil rights on the island. At the end of last year, Puerto Rico announced that it would strengthen the LGBT protections in its hate crime law, following a failed attempt in 2011 to specifically exclude them.

Marriage has been defined by law as between one man and one woman since 1999, but attempts to codify the same-sex ban in the territory’s constitution have so far been defeated.

The legislature is currently considering two landmark civil rights bills, one which would outlaw discrimination based on gender or sexual orientation, and one which would include same-sex partners in domestic violence laws.

Attorney Iván Espinoza-Madrigal headshot

Iván Espinoza-Madrigal

“There has been a lot of really great energy both on the ground in support of the bills and from elected officials sponsoring these bills,”  says Iván Espinoza-Madrigal, a staff attorney for LGBT legal rights organization Lambda Legal. “This is why this decision in the [adoption] case was really disappointing, because of the progress that has been going on in the island in terms of LGBT rights. I think this would have been a really great opportunity to speak about LGBT equality, obviously something the Supreme Court did not do.”

The adoption issue could still be revisited through two different avenues: the court decision could be appealed for reconsideration, or the legislature could amend the law as the judges suggested in their ruling. For now, however, the ban stands. 

“It’s disappointing that the court found that this legal regime was constitutional because it clearly discriminates and singles out same-sex couples for inferior treatment, to be denied access to these legal rights and protections,” Espinoza-Madrigal says. ”It places children, families and by extension entire communities at risk.”

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