Same-sex couple awaits U.S. court’s adoption ruling

It was a note from the Oklahoma Health Department that started the chain of events that would propel Ed Swaya and Gregory Hampel into a federal court here.

The two men, partners for 13 years, had arranged through courts in their home state of Washington to adopt their daughter, Vivian, whose Oklahoma mother had agreed to give the baby to the two men when she was born in 2002.

When the couple asked Oklahoma to issue her birth certificate, the state sent a form with spaces for the names of the mother and father. Swaya and Hampel crossed out the categories and marked themselves as “parent #1” and “parent #2.”

The state didn’t accept it, and sent back the form. The couple then listed Hampel as the father and Swaya as the mother. Oklahoma rejected it, writing: “We could not establish maternity for Mr. Swaya.”

Nonetheless, Oklahoma’s attorney general warned that the state would have to honor the legal adoption order from Washington state.

The Legislature stepped in, passing a bill prohibiting the state from acknowledging adoptions by same-sex couples from other jurisdictions, setting the stage for a legal battle that some gay rights activists fear could become increasingly common as states seek to curtail the abilities of same-sex couples to adopt children.

Battles over such adoptions date back almost 30 years, to the Florida campaign led by singer Anita Bryant that sought and achieved that state’s ban on adoption by gays in 1977. But, as with same-sex marriage, the legal situation involving adoption by gays remains fragmented across the country.

A handful of states, including Utah and Mississippi, have banned such adoptions over the years, according to the American Academy of Pediatrics. Other states, including California, permit such adoptions.

Courts have dealt with these bans in conflicting ways. In December 2004, a federal judge in Little Rock, Ark., struck down the state’s ban on gay foster parenting and adoptions. Weeks later, the U.S. Supreme Court declined to hear an appeal of a ruling upholding Florida’s ban.

Same-sex adoptions became an issue in the governor’s race in Arkansas this year, where both candidates called for reinstating the state’s ban. The American Academy of Pediatrics says 16 other states discussed constitutional amendments to ban gay adoption this year.

Chris Stovall, senior legal counsel at the Alliance Defense Fund, a conservative public interest legal group, said legal issues surrounding adoption by same-sex couples were similar to those surrounding same-sex marriage. “These things are connected,” he said. “Men and women do have different roles and contribute in different ways to the upbringing of a child.”

Ken Upton, the attorney who sued Oklahoma for Swaya, Hampel and two other same-sex couples, also sees a similarity to the issue of same-sex marriage. “Foster care and adoption are what we see as battlegrounds in the conservative states,” said Upton, a senior staff attorney for Lambda Legal, a gay rights group. “That’s the next frontier for people trying to attack gay people.”

Each side cites studies to bolster its stand. Opponents of gay adoption say research has shown that children thrive when they have parents of each gender. Gay rights groups say the same is true of children raised by same-sex couples, and they note that many of the largest family medicine groups, such as the American Academy of Pediatrics and the American Psychological Assn., say homosexual parenting does not have harmful effects on children.

Oklahoma already prohibited same-sex couples from adopting children when Swaya and Hampel learned through an adoption agency of a pregnant 19-year-old woman in Oklahoma City who planned to put her baby up for adoption. The couple wanted an open adoption, in which the birth mother would remain a part of their child’s life. The two men flew to Oklahoma for the birth, met her family and returned to Seattle with their new daughter.

But because of the law passed in response to their quest for Vivian’s birth certificate, Swaya and Hampel say, they cannot return to Oklahoma for their daughter to get to know her grandfather or other birth relatives. (They have in the past flown the birth mother to Seattle.)

“This is hurting my daughter and keeping families apart,” Swaya, 37, a marriage and family counselor, said.

Swaya and Hampel sued Oklahoma, joined by two lesbian couples who adopted children in other states and then moved to Oklahoma to find those adoptions unrecognized. One couple, Lucy and Jennifer Doel, adopted their 6-year-old daughter in California in 2002. In the court case, the two cited an incident in which their daughter had to be rushed to the hospital in an ambulance and medical personnel said only the birth mother could accompany her.

Oklahoma officials could not be reached for comment last week, but in court papers they argued that their state had the right to set its own policy on adoptions by same-sex couples. They argued that the purpose of the law was “to halt the erosion of the mainstream definition of the family unit and provide the possibility for the optimal environment for the child’s development in a home with a male parent and a female parent.”

In May, a federal judge in Oklahoma found that the law did “little if anything to promote the traditional family unit” and attempted “to penalize the plaintiff children for the acts of their parents.”

The law “in essence tells one of the adult plaintiffs, ‘You are no longer the parent of your child,’ ” added U.S. District Court Judge Robin J. Cauthron.

On Nov. 17, the state argued before the U.S. 10th Circuit Court of Appeals in Denver that Cauthron’s decision should be overturned. It could be several months before a ruling is issued.

nicholas.riccardi@latimes.com