MAKING A MOUNTAIN OUT OF A MOLEHILL: A LAW AND ECONOMICS DEFENSE OF SAME‐SEX FOSTER CARE ADOPTIONS

Abstract

This article explores the methods by which homosexual partners can adopt children from foster care, primarily via the stepparent adoption method because most jurisdictions do not recognize same‐sex marriage or civil unions. In establishing that the children in foster care constitute a market not in equilibrium, I explore the significant barriers to entry that homosexual partners must overcome in order to adopt a child, including the biased rules of intestate succession, the inability of homosexuals to secure health insurance or other governmental subsidies for their nonbiological, adopted children, and the apparent misconception that homosexual parenting negatively affects the well‐being of the child. By deconstructing the barriers to entry in the foster care market for children, children will be afforded the opportunity to maximize their utility through permanency, and homosexual parents and the general public can maximize their utility through the reallocation of assets away from the foster care market, given that more children are likely to be adopted once homosexuals are granted unfettered adoption rights. The reallocation of assets away from the foster care market increases social efficiency, which is desired by all.