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How same-sex couples got the right to adopt in Massachusetts

A Supreme Court decision expected any day could open up the practice to families across the nation.

Ramon Hernandez (left) and Pedro Herpin (right) adopted Daynel, 16, and Jordyn, 7.Dina Rudick/Globe Staff/Globe Staff
Adoption brought family ties for these two, now brothers. Dina Rudick/Globe Staff/Globe Staff

PEDRO HERPIN AND RAMON HERNANDEZ estimate they have had close to 20 foster children in their home over the years. They adopted one of those foster children and have two more children, Herpin’s from a relationship when he was a teenager, and have also adopted a grandson. Theirs is a family constellation that is not possible in every state because of laws restricting adoptions by same-sex couples, and one that could not have existed in Massachusetts 30 years ago.

The family moved to Puerto Rico in 2007 to live near Herpin’s parents but came back five years later. The schools weren’t great, their marriage wasn’t recognized, and their status as a gay couple meant being foster parents was out of the question. “It’s a no-no in their eyes over there,” Herpin says. So they returned and settled in Avon. They most recently fostered a transgender teenager, whom they found through the Home for Little Wanderers in Boston, a child welfare agency that provides residential, community-based, and adoption services. “We heard about him and thought it was a good match for us,” Herpin says.

The match was good — for a while, though the teen recently left for a group home placement. So Herpin and Hernandez are back on the list of families ready for the next kids they may be able to help.

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Public adoption — finding legally permanent homes for children in state custody — uses different processes than private or international adoption. In Massachusetts, same-sex couples are a significant part of the pool of parents the state draws upon to provide love, guidance, and homes for thousands of children whose families cannot care for them. The state does not track the sexual orientation of foster or adoptive parents, but people who work in the adoption world say that same-sex couples are absolutely part of the mainstream. “I would say there is a pretty universal acceptance of gay and lesbian couples in the adoption community as viable resources to parent our children,” says Lisa Funaro, executive director of Massachusetts Adoption Resource Exchange (MARE), a Boston nonprofit that works to find adoptive families for kids in foster care.

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But adoption by same-sex couples, like same-sex marriage, is still far from universally accepted. According to Gallup’s most recent polls on the two questions, from May 2015 and May 2014, respectively, 60 percent of Americans approve of same-sex marriage while 63 percent think same-sex couples should be legally allowed to adopt. And public opinion varies depending on age. Among Americans 65 and older, support for adoption by gay and lesbian parents is 52 percent; among 18- to 29-year-olds, it’s 77 percent. Gary Gates, a research director at the Williams Institute at the UCLA School of Law and a supporter of same-sex couples’ right to adopt, says that as attitudes have shifted, adoption rates have increased. “Certainly as public opinion becomes more receptive to same-sex couples adopting, more same-sex couples have been adopting,” he says. “There’s no question that those things have run in tandem.”

Across the US, the legal status of same-sex couples who wish to adopt children varies widely. Florida’s ban on adoptions by gay and lesbian parents was ruled unconstitutional by a state court in 2010. This April, state lawmakers offered an ultimately unsuccessful amendment that would have allowed private adoption agencies to refuse to place children with same-sex couples on religious grounds. A Michigan law prohibiting joint adoption by unmarried adults led to a challenge to the state’s ban on same-sex marriage that came before the US Supreme Court this year. The original focus of the case, filed by Jayne Rowse and April DeBoer, a lesbian couple, was their right to adopt each other’s children. It shifted at the suggestion of a federal judge from parental rights to the right to marry. Their case has now been merged with marriage equality cases from Tennessee, Ohio, and Kentucky. A decision is expected in late June. If the court’s ruling allows same-sex couples to marry, then the few states that prioritize married couples in the adoption process could be affected, too, says Gates, who submitted a brief to the court in support of the couples seeking marriage rights. The right to adopt, where it is attached to marriage, would be extended to all couples, not just straight couples.

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Don Babets (left) and David Jean are surrounded by neighborhood kids in 1985. After the Globe published a story about the couple becoming foster parents, the state took the children away.John Tlumacki/Globe Staff/Boston Globe

ONE OF THE PIONEERING SAME-SEX COUPLES in the foster and public adoption system, David Jean and Don Babets, live on a wooded lot 2 miles down a dirt road in Shutesbury. They have lived in the area for 20 years, raising four boys — brothers who came to them as foster kids after they had been abused and neglected by their birth parents. Their quiet country home and a family portrait that sits on a baby grand player piano in the living room offer no signs of how difficult the couple’s road to fatherhood was.

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Jean, who is 62, and Babets, 66, didn’t set out to be pioneers three decades ago, before the boys they now call sons first came to live with them; they just wanted to help. “I didn’t anticipate being a parent, but hearing about the need for foster parents, Don and I talked it over — why not give it a try and see where it leads to, with the intent of trying parenting out, I guess, a heavy-duty dose of parenting,” Jean recalled in an interview at the couple’s home. Jean had been an older child in a large family and figured he had the experience to raise children. Babets was the oldest of five children and was familiar with the idea of adoption. His mother was adopted, and he was adopted by his stepfather.

The state had been placing children with single foster parents who were known by social workers to be gay since the mid-1970s, says Arline Isaacson, who starting in the 1980s lobbied the Legislature in support of fostering rights on behalf of the Massachusetts Gay and Lesbian Political Caucus. But Babets and Jean were among the first openly gay couples to become foster parents in Massachusetts. At the time the men lived in Roxbury, were active in their local community, and had full-time jobs.

In May 1985, less than two weeks after two boys were placed with Jean and Babets, the Globe published a story about the family. Though they say state officials had assured them the story would not change their status, the children were removed that same day. The couple were told there was too much media attention, Babets says. Soon, Governor Michael Dukakis’s administration put in place a policy that didn’t mention same-sex couples, but essentially put them, as well as single adults, at the back of the line for foster placements: After a child’s relatives, the policy gave priority to married couples who had parenting experience and time available for parenting, then single adults who had parenting experience and time available. Single adults without parenting experience were given lowest priority. In addition, placements with single people or unmarried couples would only be made with the approval of the commissioner of social services. Prospective foster parents would also be asked about their sexual orientation during the application process.

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The debate about whether openly gay couples were fit to raise children whose birth families weren’t available, or fit to raise any children at all, raged across the state, dividing politicians and stoking fears about nontraditional families. “It was all about gay men as predators, as people who sexually abuse children,” says Sue Hyde, who organized grass-roots supporters of same-sex parents to protest the state’s action and today is a staff member of the National LGBTQ Task Force.

“It was seen as both an attack on people’s right to be foster parents but, a much bigger thing, as their right to be parents,” says Kevin Cathcart, a lawyer from GLAD, Gay & Lesbian Advocates & Defenders, who was co-counsel on Babets and Jean’s case challenging the state’s policy. On GLAD’s side were child welfare advocates and professional associations, including the National Association of Social Workers and the Massachusetts Psychiatric Society. Catholic Charities for the Archdiocese of Boston weighed in against them. The Dukakis administration held firm.

Looking back, a key Dukakis Cabinet member says he believes the administration took the wrong course. “Although it was a very difficult political situation, the state should have ignored the ruckus, because the truth is, we know very well that gays and lesbians can be and usually are terrific parents,” says Philip Johnston, who was secretary of human services from 1984 to 1991 and now runs a communications firm based in Quincy. “Those of us involved feel very bad about how it played out.”

For the gay community, Isaacson says, Babets and Jean’s case marked the beginning of a major political effort that would lead to big changes, including Massachusetts becoming the first state to make same-sex marriage legal in 2003. There had been gay pride events in Boston since the 1970s, and the first openly lesbian woman was elected to the state Legislature in 1974. The gay community’s fight for civil rights in the ’70s and ’80s ultimately led to an anti-discrimination law that passed in 1989. Meanwhile, the foster care protests galvanized another part of the gay community around family rights.

“I don’t think you can overstate how important it was,” Cathcart says of the case. It was “a political moment, a clarifying moment for people in the community about the work that needed to be done.” Beyond the concern that gays and lesbians would be deemed unfit to raise children were fears that if they could lose in Massachusetts, they could, and would, lose anywhere. The state settled out of court in 1990 and changed its policy, allowing single adults and unmarried couples with parenting experience and time available for parenting to have the same priority as married couples with the same qualities.

The process of adopting two children through the foster system has this couple jumping bureaucratic hurdles.Dina Rudick/Globe Staff/Globe Staff

THE ROWSE AND DEBOER CASE going in front of the US Supreme Court is part of a long history of opening up a fostering and adoption system that was once confined to a narrow group — married heterosexual couples without children. Those barred from adopting have at times included married couples with children at home, single people, and foster parents, says Lisa Funaro, of the Adoption Resource Exchange. The introduction of federal and matching state subsidies for adoptions from foster care in 1980 opened the process to people who couldn’t otherwise afford it.

Expanding the pool of those able to become foster or adoptive families has been a positive thing, according to Funaro, for a lot of reasons. While working-class families in her experience run well-structured households, and older parents who have raised their own children bring valuable experience to the table, gay and lesbian adults often have a sense of advocacy that she says is helpful to children in state custody, most of whom have experienced trauma and loss. “Many of our same-sex couples know what it’s like to be different in society,” says Funaro. “And our kids feel different. They don’t have a family. They go to school and get asked to do their family tree in second grade, and they don’t have one. They’ve always felt that differentness.”

And the need for families is great, says Linda Spears, commissioner of the state Department of Children and Families. The department’s goal is for every child in its care to be placed in a suitable permanent family, whether through reunification with birth families, placement with extended family members, or in a completely different family, though “there are never enough families to do what we’d like to do,” Spears says. At press time, there were 8,999 children in the agency’s care living in foster homes or shelters. Of those, 2,788 would be best served by adoption, the state says, and among those, 762 are now legally eligible to be adopted.

On a sunny spring Sunday in Taunton, a sprawling office park with winding roads and oceans of asphalt has been taken over by parents, little kids, volunteers, and dogs. It’s a charity event to support MARE’s efforts to find adoptive families for children in foster care, in which runners and walkers loop around the corporate headquarters of Jordan’s Furniture. The virtues of adoption are extolled over a megaphone during the event.

Alongside other families waiting for the race to start, two women are keeping an eye on two children who are not yet their own. The Massachusetts couple, who have been together for 10 years and were married last year and did not want to be identified, explain that they looked into adopting a child from another country but found out that many don’t allow adoptions by same-sex couples. So they decided to try to adopt a sibling group from foster care closer to home. “The children are wonderful,” one of them says.

The delays they have encountered in making the adoption of the two children, a 9-year-old boy and 10-year-old girl, permanent have nothing to do with questions by the state about their status as a lesbian couple and everything to do with bureaucratic challenges faced by any couple trying to adopt.

“We’ve seen nothing on the side of discriminatory attitudes at all,” the foster mom says. “It’s been the opposite.” The women, like any other parents, are learning how to juggle their careers and the needs of their family. And like many foster children, the boy and girl in their home are in counseling with therapists. “It’s a lot,” the mom says. “I’m trying to pay attention to what the kids are doing in therapy with them and bringing them to individual therapy. So it’s a lot. It’s a lot more than I think we thought it would be.”

Just as the Commonwealth does not track whether couples who foster or adopt are same-sex or heterosexual, there are also no national statistics. Instead, demographers lean on American Community Survey data collected by the US Census Bureau to try to read trends in gay and lesbian parenting. However, the data don’t show whether a child indicated as “adopted” in these surveys is the biological child of one of the parents. In his research, UCLA Law’s Gary Gates has found that same-sex couples are three times more likely than heterosexual couples to be raising adopted or foster children. When the data are limited to married couples, same-sex couples are five times more likely than heterosexual couples to be raising adopted or foster children. He has also found that in states where same-sex marriage is legal, adopted and foster children are 10 times more likely than children in general to have gay or lesbian parents.

MARE facilitates about 23 percent of all public adoptions here, and it tracks the sex of parents in its adoptive families. In the year that ended June 30, 2014, the exchange placed 164 children in permanent homes. Of those, 22 percent were with same-sex couples (this is roughly in line with rates for the last few years). In some cases, Funaro explains, the agency actively seeks out a same-sex couple for an individual child, possibly because of abuse in the child’s past or because of a relationship he or she maintains with a birth parent.

But even here, same-sex couples’ access to the public adoption system isn’t universally known. After a Globe story last December about a child looking to be adopted by a same-sex male couple, 11 families made inquiries, Funaro says. “We got so many responses from gay couples saying not only ‘This really moved me, and I’m really interested in this child,’ but ‘I didn’t know I could adopt from foster care being a same-sex couple,’ ” she says. “We’ve been placing with LGBT families for 15, 20 years, and we think everybody knows that, but obviously there’s a whole bunch of people who still have no idea that they could come forward and adopt from foster care.”

The Supreme Court decision could open up opportunities for same-sex couples across the country to foster and adopt, but it won’t guarantee the right; state legislatures will still be able to introduce laws limiting gay and lesbian couples’ access to their systems. But the case will get people talking, which advocates say is the first step. While Massachusetts is today at the forefront of rights for gays and lesbians, it started with activism 30 years ago. “Social change really happens from the bottom up,” says Sue Hyde, of the National LGBTQ Task Force. “This is about how we are woven into — or not accepted in — the fabric of our neighborhoods, our schools.” She adds, “This is really about social change.”


Jill Terreri Ramos is a freelance writer in Quincy. Send comments to magazine@globe.com.