Despite the state attorney’s attitude, however, Stith stood on solid legal ground. The 1990 Americans with Disabilities Act (ADA) specifically prohibits discriminatory policies—by both public and private entities—that could be used to screen out prospective parents based on their HIV status. ADA regulations define HIV as a “physical impairment” whether “symptomatic or non-symptomatic.”
Furthermore, the idea that HIV-positive people should be ruled ineligible to adopt children because of the possibility of a shortened lifespan, as the state attorney hinted to Stith, is illegal and subject to legal sanctions under the act’s provisions. Individuals who feel they have been discriminated against by a public adoption agency can file a complaint with the Department of Justice and/or file a private lawsuit. When private agencies discriminate, either an individual or the Department of Justice may file a lawsuit. (If won, Department of Justice suits may impose civil penalties of up to $50,000 on an agency for a first violation and up to $100,000 for any subsequent violation.)
Zavos suggests that HIV-positive prospective parents can minimize adoption problems by, first and foremost, knowing their civil rights. “HIV status may not be used to bar adoptions,” Zavos stresses. “But adoption will not be granted if a person is very ill and unable to care for a child.
“Prospective parents must almost always go through a home-study process that will, among other things, expose any medical issues that may interfere with their ability to parent,” Zavos adds. The process includes a series of extensive medical and psychological parental tests.
But another important point, Zavos indicates, is that HIV-positive people trying to adopt should know that they aren’t legally required to reveal their status. Although they can’t lie about it, they only need to disclose their physical issues. “If Ricky Stith had not revealed his status—which he did thinking it was the right thing to do—he would have had a much easier time,” Zavos says.
She also recommends that HIV-positive people educate themselves about their state’s adoption laws and work with an adoption agency that has experience in handling special needs cases.
While there are no absolute statistics available about how many HIV-positive people (singles or couples) have adopted children, perhaps some parallels can be drawn by looking at another minority group. Statistics from the Williams Institute at the University of California, Los Angeles, School of Law indicated that as of 2005 more than 270,000 children were living with same-sex couples in the United States—about 65,000 of them were adopted.
Despite the lack of data on HIV-positive people, it’s a reality that they adopt children. It’s also a reality that many of them are routinely discriminated against by decisionmakers involved in the adoption process. “Stigma, racism, discrimination and sexism exist in society, and they also exist in adoption,” says Devon Brooks, a senior research fellow at the Evan B. Donaldson Adoption Institute, a New York City–based think tank. “Adoption is a human services institution [and subject to human biases]. But discrimination based on race, gender and ability status are against the law. All civil rights laws applied to [Stith’s] situation.”
Nevertheless, because of human biases, laws and practices still discriminate or give preference to certain adoptive parents based on their health history, sexual orientation and marital status, Brooks says.
Zavos agrees. “Adoption agencies have their own internal policies, which may grant privilege to straight, married couples,” she says. “I’ve also had clients go to other lawyers or adoption agencies and be told that they could not adopt because of their HIV status.”
In Stith’s case, he had the full support of the adoption agency he selected. In addition, Brooks says, Stith benefited from civil rights and child welfare laws that prevented the biased state attorney from stopping Stith’s adoption of Keon.
Many experts on adoption issues contend that diseases such as HIV and other successfully treated illnesses should not prevent or deter someone from adopting a child. “Many people who have chronic diseases maintain their state of health and are certainly capable of raising a child,” says Nancy Hemenway, executive director of the InterNational Council on Infertility Information Dissemination (INCIID) in Arlington, Virginia.
Stith’s personal experiences with HIV—and, in turn, with health and medical issues—helped prepare him to raise his adopted son, who also had health issues. Under Stith’s care, Keon eventually was able to stop taking all meds for his severe asthma, and his kidney condition greatly improved. “Today, he is a healthy child in the first grade,” Stith says. “He holds a red belt in tae kwon do and is in training for his brown belt. He also takes weekly swimming lessons. Anyone looking at Keon can tell that he’s loved.”
Adds Stith: “I wanted to make a difference in a child’s life. My son gives me a reason for living. Whenever I do pass away, I want Keon to say without a doubt that ‘My daddy loved me.’”