The Friday of Memorial Day weekend, the Trump administration proposed repealing Obama-era policies at the Department of Health and Human Services (HHS) that prohibit federally funded adoption and foster care agencies from discriminating against adoptive couples based on their faith or sexual orientation.

This is concerning to me, not only as an adoption attorney but as a parent, too. At any given time, there are approximately 440,000 children in the U.S. foster care system, and to refuse adoption rights to gay parents who are able to and very much want to provide stable, loving homes to these children is doing a disservice to all parties.


Gay adoption is legal in all 50 states. Under current policies, adoption and foster care agencies that receive federal funding cannot turn away same-sex couples wishing to adopt. Moreover, the 2015 U.S. Supreme Court ruling for federal marriage equality means that married same-sex couples have all the rights as heterosexual couples, including the right to adopt jointly.

That is not to say it is always as easy for LGBTQ parents to adopt as it is for cis-gender heterosexual couples; some agencies and attorneys are more welcoming than others. Additionally, international adoption can be more difficult, as some countries still prohibit same-sex couples from adopting.


Some religiously affiliated agencies argue that current policies force them to go against their belief system. As such, the HHS is considering a proposal from the White House to either repeal regulations that protect same-sex couples, or to allow exemptions for faith-based agencies on the grounds that the policy conflicts with their religious beliefs. According to the online news outlet Axios, who is credited with breaking news of the proposal, the Trump administration is trying to figure out which alternative would fare better during inevitable court battles.

Do not give up. Not all agencies will choose to discriminate if exemptions are allowed and, remember, it is still your constitutional right to adopt in all 50 states.

If either change were to go into effect, then same-sex couples would likey find it much more difficult to adopt, as a significant number of adoption agencies in the United States are associated with faith-based groups. Exempt agencies (or any agencies if the Obama-era policies were fully repealed) would be free to refuse to work with LGBTQ couples and many other protected groups without losing federal benefits.

Opponents to these policy changes also worry that allowing agencies to legally discriminate against LGBTQ adoptive parents in the name of “religious freedom” would jeopardize the safety and wellbeing of LGBTQ children who are currently in the foster system.

It is noteworthy that exemptions are already happening, despite these proposals not yet being implemented. In May 2019, the American Civil Liberties Union filed a lawsuit against the HHS and the State of South Carolina on behalf of a same-sex couple denied the opportunity to become foster parents by Miracle Hill Ministries, one of South Carolina’s largest government-funded adoption and foster care agencies. The governor of South Carolina has successfully secured an exemption for Miracle Hill to not only refuse to work with LGBTQ families, but for any non-Protestant families.


Statistics suggest that the numbers of same-sex couples who are considering adoption or fostering will continue to grow. However, it seems likely that some version of the Trump administration proposal is likely to move forward. If you are an LBGTQ or non-religious couple hoping to adopt, do not give up hope—just because some agencies may choose to discriminate if allowed does not mean that all agencies will. Remember, it is still your constitutional right to adopt in all 50 states.

Working with a knowledgeable adoption attorney can dramatically increase your chances for a smooth, successful adoption, now more than ever. An attorney with specific experience in gay adoption can help you find agencies that are welcoming to all parents who can provide loving homes to children in need, regardless of their sexual orientation or religion. We invite you to contact Craig Associates today for more information or to schedule a consultation with our experienced Asheville adoption attorney.