LGBTQ+ Adoption Under the Hague Adoption Convention
Introduction
The drafting of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (simply, the Hague Adoption Convention, or HAC) in 1993 marked a turning point in international adoption practices. The HAC created international legal infrastructure facilitating and legitimizing adoptions between member states while prioritizing the well-being of adoptees in order to prevent child trafficking and other forms of abuse. As with the other conventions of the Hague Conference on Private International Law (or HCCH), the HAC balances this goal of cooperation between disparate legal systems with respect for each state’s sovereignty in dictating domestic law. As such, the HAC fosters communication and collaboration between contracting states while leaving details such as criteria for adopter eligibility up to domestic legislation. In other words, the factors determining whether one is an eligible adopter are decided by each member state to the HAC, meaning that an individual or couple eligible to adopt in one member state may be ineligible in another.
In this context, the question of adoption by homosexual couples or individuals can seem quite complicated. In addition to documented psychological strain on homosexual couples looking to adopt in the face of institutional discrimination,[1] the lack of standardized eligibility criteria between HAC member states can be an additional source of frustration. So, what does the Hague Adoption Convention say about adoption by homosexual couples or individuals? And what does this process of adoption look like in practice?
The Text of the Adoption Convention
Although several sections of the HAC are poised to address the issue of adoption by same-sex couples, the Convention ultimately remains agnostic on this issue. This stance reflects the doctrine of the margin of appreciation, which balances issues of rights enforcement with state sovereignty by employing vague language so as to grant contracting parties a certain degree of interpretive latitude. In particular, Article 5 regards the selection of adoptive parents, yet it merely stipulates that ‘the competent authorities of the receiving State [must determine] that the prospective adoptive parents are eligible and suited to adopt.”[2] Article 17 similarly states that authorities in the state of origin must “[determine], in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving state.”[3] In both of these articles, details about specific criteria which may render prospective parents (in)eligible to adopt is left to the states’ discretion in accordance with the principle of margin of appreciation. After all, there are chapters of the HAC which could conceivably contain a non-discrimination clause; Chapter VI, for example, contains general provisions such as Article 32, which regulates financial gain from intercountry adoptions, forbidding “improper financial… gain” and “remuneration which is unreasonably high” for parties involved in intercountry adoptions.[4] However, any such non-discrimination clause is absent, relegating all authority in determining adopter eligibility to states.
Far from an oversight, this lack of specification regarding adopter eligibility accords both with the purpose of the HCCH, which is to facilitate cooperation in the realm of private law between states, and the intent of the HAC, which primarily focuses on safeguarding the rights and wellbeing of adopted children (rather than those of adopting parents). As such, guidance and regulations regarding potential adopters is limited to criteria designed to prevent child trafficking and similar exploitation of international adoption. Decisions regarding the eligibility of homosexual couples and individuals to adopt, then, are made on a case-by-case basis depending on the laws of each country. To illuminate the range of potential outcomes for same-sex couples seeking to adopt a child, we might consider three contrasting cases: that of the United States, Italy, and Ghana.
Case Studies: The United States, Italy, and Ghana
The passage of the Intercountry Adoption Act of 2000 (IAA) governs the adoption of U. S. children under the HAC. While adoptions are mediated through accredited agencies, such as in many other party countries, the critical factor in the U. S. case is the authority of state laws over the adoption process.[5] Although a series of court rulings between 2015 and 2017 made adoption by same-sex couples legal in all U.S. states,[6] several states still provide for individual adoption agencies to discriminate against same-sex couples on grounds of religious exemption.[7] Thus, same-sex couples looking to adopt U. S. children under the HAC will be rendered (in)eligible pursuant to the HAC, the IAA, and the relevant laws of the (U. S.) state from which they wish to adopt.
On the other hand, Italy provides one example of a state from which same-sex couples are unable to adopt children. Although the Italian government recognizes same-sex civil unions, those unions do not entail adoption rights under Italian law as, pursuant to Law No. 184 of 1983, only couples who have been married for three years are eligible to adopt under Italian law.[8] That said, the situation is dynamic. On March 31, 2021, Italy’s Supreme Court of Cassation ruled that it was possible to recognize the adoption of a U. S. child by a same-sex couple residing in the United States (one of whom held U.S.-Italian dual citizenship); this ruling built on prior rulings n. 601 and 14007 from the same court, in which the Court respectively decided that “sexual orientation does not affect an individual’s suitability for taking on parental responsibility” and “[e]ven in family disputes concerning the custody of minors ‘the sexual orientation of the parent should be considered as irrelevant.’”[9] Moreover, a March 2025 ruling by Italy’s Constitutional Court found that Italian singles (including LGBTQ+ singles) were eligible to adopt internationally, overturning forty years of precedent.[10] While this ruling specifically addressed a case on intercounty adoptions, its logic may be extended to adoptions of Italian children in the near future. For now, though, joint adoption by same-sex couples of Italian children under the HAC remains impossible.
Lastly, Ghana provides an example of a contracting party which makes it impossible for same-sex couples to adopt. In addition to criminalizing same-sex sexual conduct, Ghanaian law does not recognize any form of same-sex unions, which renders same-sex couples unable to jointly adopt children in Ghana.[11] What’s more, Ghanaian law stipulates that singles may adopt from Ghana only if they themselves are Ghanaian.[12] This closes a loophole wherein same-sex couples looking to adopt a child through the HAC could have one individual file for adoption rather than filing jointly as a married couple. Since adoption by singles is restricted to those with Ghanaian citizenship, same-sex couples looking at intercountry adoption are consequently left no path forward in Ghana, able to adopt neither as a couple nor as individuals. Moreover, as the reintroduction of an anti-LGBT bill by ten Ghanaian MPs in March 2025 marks a worsening situation for LGBTQ+ rights in the country, the restrictions barring same-sex couples from adopting seem unlikely to change in the near future.[13]
Conclusion & Notes on Practice
In conclusion, opportunities for adoption by same-sex couples under the HAC differ radically depending on contracting parties’ laws governing eligibility for adoption. While this agnosticism on the issue is primarily attributable to the HCCH’s aim to provide for cooperation and coordination between states with a margin of appreciation rather than dictating external standards, it can lead to a frustrating situation for same-sex couples seeking to navigate contradictory rules around parental eligibility. Indeed, despite a proliferation of interest in LGBTQ+ rights over the past few decades, international human rights law has yet to enshrine substantive protections for same-sex couples; as of April 2025, adoption by homosexual couples and individuals is explicitly legal in 39 countries and territories, illegal in 52, somewhere in between in 59, and unclear in another 59.[14] Responding to this lack of protection, some scholars have emphasized a need for further action at the level of international law,[15] whereas some more conservative researchers have criticized use of the HAC to facilitate adoptions by same-sex couples.[16] Moreover, even in states in which adoption by same-sex couples is not illegal, requirements for holistic screenings by state-accredited agencies under the HAC may prove a consistent obstacle in regions where homophobic perspectives are prevalent. Thus, especially when combined with the decreased rates of intercountry adoption worldwide (researcher Peter Selman notes an 86% decline in the annual number of intercountry adoptions between 2004 and 2019[17]), the legality of same-sex adoption is not a guarantee of success so much as a starting point for an often fraught adoption process.
The discontinuities between countries’ adoption policies presents a challenge to attorneys assisting clients with adoptions under the HAC, and this difficulty is multiplied for those working with same-sex couples. As such, one key to success is to be intimately familiar with both relevant adoption laws and cultural customs of the country from which clients wish to adopt; after all, even if adoption by same-sex couples is legal, that does not guarantee that state-accredited adoption agencies will consider your clients suitable adopters. Failure to recognize this fact can severely delay prospects for adoption, as couples who are technically able to adopt from a country may nonetheless wait indefinitely for a match, shunned by local adoption agencies who resist matching children with same-sex couples. Attorneys thus must advise clients on the unique challenges associated with intercountry adoption and work closely with them to select a country which both meets their needs and offers a realistic chance at adoption. Especially when clients have ethnic and/or cultural ties to a particular country, legal or practical ineligibility to adopt may be frustrating. However, with thorough research and steady counsel, recourse can be found through more progressive countries or even domestic adoption.
[1] Roberta Messina and Salvatore D’Amore, “Adoption by Lesbians and Gay Men in Europe: Challenges and Barriers on the Journey to Adoption,” Adoption Quarterly 21, no. 2 (2018): 59-81, https://doi.org/10.1080/10926755.2018.1427641.
[2] Article 5a, “Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption,” Hague Conference on Private International Law, conclusion date May 29, 1993, 32 ILM 1134, accessible at https://www.hcch.net/en/instruments/conventions/full-text/?cid=69.
[3] Id., Article 17d.
[4] Id., Article 32.
[5] “The Convention and this Act shall not be construed to preempt any provision of the law of any State or political subdivision thereof, or prevent a State or political subdivision thereof from enacting any provision of law with respect to the subject matter of the Convention or this act, except to the extent that such provision of State law is inconsistent with the Convention or this Act, and then only to the extent of the inconsistency.” Intercountry Adoption Act of 2000, 42 U.S.C. § 14953 (2000), section 503a.
[6] Namely, Obergefell v. Hodges in 2015, Campaign for Southern Equality v. Mississippi Department of Human Services in 2016, and Pavan v. Smith in 2017. See “Entry #133: Same-sex adoption in United States,” Equaldex, last modified November 21, 2023, https://www.equaldex.com/log/133.
[7] Michigan’s provision for refusal of service on the grounds of religious objection applies solely to privately funded agencies. See “Adoption Law Considerations for Gay Men,” Gay Parents To Be, accessed June 25, 2025, https://www.gayparentstobe.com/for-gay-men/adoption/state-adoption-laws.
[8] “Law No 184 of 4 May 1983: Children’s Right to a family.” L. 184/1983, 4 May 1983, accessible at https://www.commissioneadozioni.it/media/mr5omiis/title-ii-and-iii-law-no-184-of-4-may-1983-updated-20241114.pdf; see “Adoption by Homosexual Couples: Recognition in Italy of Foreign Adoption Decisions,” Boccadutri International Law Firm, published March 25, 2024, https://www.boccadutri.com/adoption-by-homosexual-couples-recognition-in-italy-of-foreign-adoption-decisions/.
[9] “Adoption by Homosexual Couples,” Boccadutri International Law Firm.
[10] Nada Wilson, “Top Italy court holds adoption law excluding single parents unconstitutional,” JURISTnews, published March 22, 2025, https://www.jurist.org/news/2025/03/top-italy-court-holds-adoption-law-excluding-single-parents-unconstitutional/.
[11] “Human Rights Violations Against Lesbian, Gay, Bisexual, and Transgender (LGBT) People in Ghana: A Shadow Report,” submitted for consideration at the 117th Session of the Human Rights Committee by the Solace Brothers Foundation, et al. in May 2016. Accessible at https://ccprcentre.org/files/documents/INT_CCPR_CSS_GHA_24149_E.pdf.
[12] “Ghana Intercountry Adoption Information,” U. S. Department of State – Bureau of Consular Affairs, last modified July 31, 2018, https://travel.state.gov/content/travel/en/Intercountry-Adoption/Intercountry-Adoption-Country-Information/Ghana.html.
[13] Thomas Naadi and Jake Lapham, “Ghanaian MPs reintroduce controversial anti-LGBT bill,” BBC, published March 3, 2025, https://www.bbc.com/news/articles/cdjy91gr48lo.
[14] Renato Guerrieri and Italo Raymondo, “The international legal framework of adoption rights of the LGBTQI+ community: status and key challenges,” International Bar Association, published April 22, 2025, https://www.ibanet.org/the-international-legal-framework-of-LGBTQI-adoption-rights.
[15] Kerstin Braun, “Do Ask, Do Tell: Where Is The Protection Against Sexual Orientation Discrimination in International Human Rights Law?,” American University International Law Review 29, iss. 4 (2014): 871-904.
[16] Lynn D. Wardle, “The Hague Convention on Intercountry Adoption and American Implementing Law: Implications for International Adoptions by Gay and Lesbian Couples or Partners,” Indiana International & Comparative Law Review 18, iss. 1 (2008): 113-152.
[17] Peter Selman, “The rise and fall of intercountry adoption 1995-2019,” in Research Handbook on Adoption Law, ed. Nigel Lowe and Claire Fenton-Glynn (Edward Elgar Publishing, 2023), 321.
