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September 13, 2010 | by  | in Features |
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The Option of Adoption

Incredibly, New Zealand’s existing Adoption Act has not been amended since its introduction in 1955; predictably, it forbids same-sex couples to adopt. However, a recent High Court ruling has given hope to campaigners for equal rights. Salient feature writer Elle Hunt investigates the gay adoption debate.

“I want to have your adopted babies!” cries Wallace Wells, Kieran Culkin’s character in Scott Pilgrim vs. the World, at a (straight) celebrity. That’s not a line you’d have heard in a mainstream action-comedy flick 20 years ago—and 60 years ago, it’s unlikely that the openly gay Wells would have been on screen at all.

60 years ago society favoured the nuclear family, consisting of a heterosexual married couple, living out in the ’burbs with their 2.5 children and a golden retriever. Modern families don’t necessarily reflect that anymore—if, indeed, they ever did. Two years ago, teachers in the United Kingdom were warned against assuming that all their pupils had a ‘mummy’ and a ‘daddy’; last month, actress Jennifer Aniston enraged FOX News host Bill O’Reilly by pointing out that women no longer “have to fiddle with a man” to have a child; recently, Gossip vocalist Beth Ditto announced her plans to start a family with her girlfriend next year. Today, family units are varied and non-uniform—and attitudes within the media and wider society are rapidly starting to reflect that fact.

Legislation has been slower to catch up. New Zealand’s adoption laws are almost 60 years old, and still largely operate under the assumption that a heterosexual married couple is the only fit unit to raise a child. Under the Adoption Act 1955, a couple can only make a joint application to adopt a child if they are ‘spouses’, which is normally interpreted to mean married. Not only does this rule out civil-unionised heterosexual couples, as well as those in de facto relationships, it also effectively means that same-sex couples are unable to adopt a child together. Individuals can adopt (although single men are not allowed to adopt girls), but de facto, civil-unionised and same-sex couples cannot both be recognised in law as their adopted child’s parents.

“The irony, of course, is that a single man or a lesbian woman is allowed to adopt, but two gay men or two lesbian women can’t,” remarks Tony Simpson, chair of Rainbow Wellington. “That seems to us to be remarkably silly.”

Dean Knight, a senior lecturer at Victoria University’s Faculty of Law and an Associate Director of the New Zealand Centre for Public Law, puts it bluntly: “The law at the moment is a dog’s breakfast. “Everyone knows that our model of a family has changed and become more diverse. The law has got to be updated.”

As Simpson points out, the question is whether the Act should be amended, or replaced altogether. While he allows that there’s “no question” that the legislation needs a complete overhaul (“and I think it’s something that the Law Commission should get its teeth into as soon as it can”), Simpson believes the Act could be extended to include same-sex couples “without too much difficulty”.

He is referring to a precedent-setting adoption case at the High Court in Wellington last month, AMM and KJO, in which Victoria University’s senior law lecturer Claudia Geiringer successfully applied the word ‘spouse’ to one half of a de facto couple. This was the first time the Act’s use of the words ‘spouse’ and ‘couple’ had been understood to refer to anything other than someone in a heterosexual marriage: a small step, but a step nonetheless, in a debate that has made little progress in over five decades.

“The judgement of the High Court makes the point very clearly that, when the Marriage Act was first put together, the meaning of ‘spouse’ had a particular social connotation, which it now no longer has,” notes Simpson. “I would suggest that without doing too much—if any—damage to the language, you could easily extend that meaning to encompass [same-sex couples].”

The issues with the Act

Andrew Geddis is an Associate Professor of Law at Otago University, and blogs on legal matters for Pundit.co.nz. He agrees that the current Adoption Act is “hopelessly outdated”.

“Everyone who has looked at it, including the Law Commission, agrees on this point,” he says. “It’s not just the gay adoption point—that’s actually a bit of a side wind—but rather, the Act’s inability to cope with the variety of changing family arrangements that are a part of modern New Zealand.”

In other words, the Act is inflexible, despite dealing with a matter that calls for a certain level of leeway—as Green MP Kevin Hague points out.

“Nowadays, people talk a lot about open adoption, and how this is a much more healthy process than how adoption used to be done, and that sort of thing,” says Hague. “All of that’s true, except open adoption—where children maintain relationships with their biological parents—actually happens by almost circumventing the law.

“[Open adoption] is not something that the law provides for; it’s entirely a construction that has been put in place because the law is inadequate.”

Geddis points out that the Act also discriminates on a basis of marital status, family status and sexual orientation.

“All of these are prohibited grounds of discrimination under section 21 of the Human Rights Act 1993,” he says. “Note that you also have a right not to be discriminated against by the State under the New Zealand Bill of Rights Act 1990, which was the basis of the recent High Court decision in AMM and KJO.

“Basically, unless you are a married (hence, straight) couple—or, now, a straight de facto couple—you are not allowed to jointly adopt a child, even if you are qualified on every other criteria. That’s discrimination, pure and simple.”

Human Rights Commissioner Joy Liddicoat has 16 years’ legal experience across the public, private and community sectors. She says that the Commission believes same-sex couples should have the same rights and related responsibilities to adopt children as heterosexual couples do.

“Kevin Hague is right to say that the current Adoption Act does not reflect a modern human rights approach,” she says. “We are on public record as saying that the Adoption Act needs to be amended. So, too, is the Law Commission.”

Liddicoat points out that a growing number of jurisdictions, such as the Supreme Court of Mexico, are ruling in favour of same-sex adoption.

“It is unfortunate that [the ruling in AMM and KJO] did not take the opportunity to extend its interpretation of the law, as courts in other countries have done,” she says. “States including Iceland, the Netherlands, Spain, Sweden and the United Kingdom allow same-sex couples to adopt children jointly; Denmark, Germany and Norway permit one lesbian or gay partner to adopt the other’s children.”

Making progress

In August 2009, Hague attempted to revive the private member’s bill that his colleague, Green Party co-leader Metiria Turei, had submitted to Parliament in 2006.

“What it did was specifically expand the definition of ‘spouse’ or ‘couple’ to include de facto couples and couples with a civil union,” Hague says. “That would have had the effect of opening up adoption options to include de facto heterosexual couples; heterosexual couples in civil unions; and same-sex couples—either de facto, or with civil unions.”

When Hague’s bill was not drawn in the parliamentary ballot process, he withdrew it.

“It became apparent to me that there were many, many issues with the 1955 Act, so the just thing to do was to actually address those problems comprehensively—rather than just pick off one issue,” he says. “It was also a practical approach, because the reality is, we could go through all of the processes trying to change this one aspect, and then find that… the whole Act is swept away [later on], anyway.”

Hague now heads a cross-party group of MPs that is working to address the Act’s shortcomings. “The reason for taking this approach is to really try to remove that political point-scoring from this area,” he says. “Adoption inevitably raises really deep and powerful emotional responses, and that can leave people feeling very vulnerable… So there’s huge potential, in discussing adoption, for people to be re-victimised.

“The other frustration is that sort of political point-scoring, or fear of it, is a recipe for inaction.”

Hague points out that the last Labour government, which was in power when the Law Commission filed its report on the Care of Children Act 2004, implemented most of the Commission’s recommendations, but not the one about revisiting the Adoption Act.

“I think part of the reason for that was that Labour was anxious to avoid a fight with National over the issue, and so I want to try an approach that removes that fear of a fight—so that we actually do this with goodwill towards the issue and a preparedness to work together.”

The group first aims to pinpoint the issues with the current Act, and to then explore potential options for addressing them. The best of these will inevitably end up as some form of legislation, although Hague doubts that this will happen before the next election (“it will take as long as it does”).

“It could end up being in a bill that gets adopted by the Government, or it could be a member’s bill that goes in the ballot,” says Hague. “There is also an option that it’s a member’s bill that is allowed to circumvent the ballot, by the leave of the House, so any of those could be the result of this process.”

Hague points out that the cross-party group “has MPs from most parties with an interest in it”, and so, regardless of whoever is in Government at the time he sets about presenting his findings, “they’ll have been involved in the process.

“This is the way to maximally plan for actually getting the legislation through the guards of the Government.”

A contrasting viewpoint

As much as revising the Adoption Act seems to be a commonsense decision, some are against extending adoption options to de facto, civil-unionised and same-sex couples. Bob McCoskrie, of Family First, is of the opinion that only married heterosexual couples should be allowed to adopt.

“It’s not just a gay adoption issue for us.

“At the end of the day, adoption is not about providing a child to a family—it’s about providing a family to a child. And I think the problem with this whole debate is that it’s been taken from an adult perspective [on] adult-centred policies: that it’s about the rights of adults, and we say, no, it’s actually about the rights of children, and what’s in their best interests.”

He points to a “huge quantity of research [and] studies” that shows the stability of the married couple exceeds that of other familial units.

“The research shows that it’s the best environment for a child to be raised,” he says. “We think we should be promoting best practice, and marriage is shown to be the best practice. It’s not perfect, but it’s better by far than other comparisons.”

McCoskrie is quick to point out that not all heterosexual married couples make good adoptive parents.

“Of course, you still do that test of character—no doubt about that. We’re not just saying because they’ve got a marriage licence, they’ve passed Adoption 101.”

However, he believes that to change the legislation to include de facto or same-sex couples would be to add to the “issue with fatherlessness and motherlessness”.

“Nature—which requires a man and a woman for procreation—discloses something of the purpose of nature; that a child’s best interests are served by having a mother and father.”

McCoskrie argues that it is misleading to approach the issue on grounds of discrimination.

“We already discriminate: Child, Youth and Family doesn’t allow single men to adopt girls; couples can’t adopt under the age of 25; adults in [polygamic] relationships can’t adopt; and an adult with a record of violence can’t adopt either.

“You can’t say, look, this policy is discriminating, as we already discriminate,” he says. “We’re doing it based on the best interests of the child… and unfortunately, this whole debate around gay adoption has an adult-centred focus at the moment.”

So McCoskrie believes that the 1955 Act should remain in place?

“It should be tightened up, actually,” he replies. “It’s far too loose. [AMM and KJO] suggested that it’s not just married couples; it can be de facto.

“It’s a very… interesting case,” he says, with a rueful laugh. “But no, we would say draw a line in the sand, and keep it at what was the original intention—which was a married couple.

“So there we are: there’s a bit of a contrast for you, isn’t it!”

The future of adoption in New Zealand

While the ruling in AMM and KJO reignited the issue of New Zealand’s adoption legislation, Knight doubts that the High Court will “be able to make any more tweaks to the law, even if gay couples and civil union couples come knocking on the door.

“The ball is now back in Parliament’s court.”

Justice Minister Simon Power, however, has made it clear that he does not consider reworking the 1955 Act to be on his agenda.

“If the Justice Minister isn’t interested in reform legislation, then it is likely the courts will continue to be asked to revisit the issue,” says Geddis. “As was seen in AMM and KJO, the courts can, and sometimes will, rework statutes to make them work in changing social circumstances. That’s not ideal—Parliament really should have this job—but it’s unavoidable if our MPs aren’t acting.” It looks likely, therefore, that the work of Hague’s cross-party group will be key to any potential reform of New Zealand’s adoption legislation—and that could take some time. However, Hague argues, it needs to be done.

“The Act fossilises the views of society in 1955, and those values have moved on,” he says simply. The ‘current’ Adoption Act is tailored to an understanding of family that is no longer relevant—if, indeed, it ever was, as Simpson notes.

“I grew up in the era to which [McCoskrie] tends to hark back to, and believe me, the arrangements that constituted families were myriad, in my experience,” he says. “You had everything under the sun, really.”

Even disregarding its inconsistency with society, the Act is not entirely effectual from a purely legal perspective, as Geddis points out.

“Why isn’t it in a child’s best interests to have two loving adults, wanting to parent that child, in an ongoing, stable relationship?” he asks. “After all, it isn’t a question of whether gay people should or shouldn’t be parents at all: they already can be and are.

“It’s a question of whether a gay couple should both be recognised as the legal parents of a child—or if only one of them can be recognised as such, while the other is simply a ‘guardian’ of the child, with lesser legal rights, and all the confusion, instability and uncertainty that this creates.”

In this day and age, anything goes in terms of familial units, and it seems illogical to further complicate the process of adoption with out-of-date and immovable legislation. Whether McCoskrie likes it or not, the 1955 Act no longer reflects societal values, and the consensus seems to be that that will have to change—and sooner, rather than later.

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About the Author ()

Elle started out at Salient reviewing music. In 2010, she wrote features and Animal of The Week, which an informal poll revealed to be 40% of Victoria students' favourite part of the magazine. Alongside Uther Dean, she was co-editor for 2011. In 2012, she is chief features writer.

Comments (25)

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  1. Craig Young says:

    Excellent article, Ellie. As a gay coparent myself, I’d like to respond to some of McCoskrie’s points. New South Wales has just opened up equal adoptive parental responsibilities to same-sex couples and Barnardos, a prominent child welfare NGO agency, was fully in accord with this. So are many prominent US child health, welfare and development organisations, including the Child Welfare League, American Academy of Pediatrics, American Psychological Association, American Psychiatric Association and so on.

    When it comes to pediatrics and developmental psychology, most reputable research shows that same-sex parents have excellent spousal and parental communication skills, set strong disciplinary boundaries, that sons have better interpersonal communication skills with the opposite sex and that daughters are more likely to get nontraditional, higher paying jobs. There is no effect on educational outcome or future employment prospects.

    Craig Young
    Wellington

  2. Chris says:

    Craig Young conveniently forgets to mention other organisations such as:
    Spanish Association of Paediatrics “family nucleus with 2 fathers or 2 mothers is clearly dangerous for a child”

    Multi-party Commission of the French National Assembly Jan 2006 – “the best interests of the child must prevail over adult freedom… even including the lifestyle choices of parents.” The Commission does not support adoption by single parents or same sex couples.

    Researchers at Yale and Florida State Universities – Journal of Early Adolescent 2005 said that mothers keep teens from falling victim to anxiety and depression; fathers keep teens from turning belligerent and defiant.

    One American study of 19,000 young people conducted by the Bowling Green State University (Ohio) found that teens fare best when living with two married biological parents: “Adolescents in married, two-biological-parent families generally fare better than children in any of the family types examined here, including single-mother, cohabiting stepfather, and married stepfather families. The advantage of marriage appears to exist primarily when the child is the biological offspring of both parents. Our findings are consistent with previous work, which demonstrates children in cohabiting stepparent families fare worse than children living with two married, biological parents.”

    McCoskrie is right –
    Nature—which requires a man and a woman for procreation—discloses something of the purpose of nature; that a child’s best interests are served by having a mother and father.”

  3. smackdown says:

    Yeah, we shouldn’t let those queers near ‘dem kids, ‘cos they might queer everything up and turn them (shhh) gay and shit.

    Fuck off. Fuck off. Fuck right the fuck off.

  4. Hank Scorpio says:

    Forgive my rather upset Beatles-loving friend up there (he was raised by wolves with hair like Ringo Starr, so…)

    Chris — explain what each and everyone of those studies mean by “fares better.” That sounds like something park rangers would say when talking about birds in the wild. What removes a person from the “faring well” category? Criminal conviction? Dropping out of high school? Suicide? Starvation? Watching Glee?

    I’m guessing the mother cat raising kittens on her own is outside the realm of nature? So too the male seahorse? Cattle calf? Duckling?

    In fact, outside this heteronormative family (http://bit.ly/bmmBMD), where does this “Nature—which requires a man and a woman for procreation—discloses something of the purpose of nature; that a child’s best interests are served by having a mother and father” stem from?

    You cannot argue every single child raised by a single parent, or by parents of the same gender, will “fare less” than those who are raised in a mom/pop home. This is not an argument of absolutes — there are significant areas of grey. Children fare better when raised by people who raise them well.

    That’s the only absolute we can all agree on.

  5. BJ says:

    smackdown: overreaction much?

    And yeah, I tend to agree with the whole idea that it generally doesn’t matter whether its mum or dad or mum/mum dad/dad. There’s enough deadbeat parents out there that are mum/dad where one/both is terrible or ones missing etc…I’d be more concerned about bad parents (which seem pretty common in the opinions of people if you read a letters column in most places.) rather than what gender they were.

  6. shitkicker says:

    umm if it’s natural to have one mum and one dad why are they adopting? seems pretty unnatural if it’s not from out your own box

  7. smackdown says:

    that wasnt me that was a false smackdown

    btw chris is dumb as hell lmao

  8. Craig says:

    Chris:
    Could you please cite the source of your claims? In any case, the United Kingdom changed its adoption laws back in 2002, as have Israel, most Canadian provinces, Western Australia, Tasmania, the Australian Capital Territory, New South Wales, Uruguay, Spain itself, the Netherlands, Germany and much of Scandinavia. In each case, many of their national pediatric, child health, welfare and development professional organisations supported reform. In addition, lesbians and gay men already have access to parental responsibilities when it comes to reproductive technologies, guardianship and fostering, so why should adoption be an anomaly?

  9. Craig says:

    Why Marriage Matters, Second Edition: 26 Conclusions from the Social Sciences was produced by a politically diverse and interdisciplinary group of leading family scholars, chaired by W. Bradford Wilcox of the University of Virginia and includes psychologist John Gottman, best selling author of books about marriage and relationships, Linda Waite, coauthor of The Case for Marriage, Norval Glenn and Steven Nock, two of the top family social scientists in the country, William Galston, a Clinton Administration domestic policy advisor, and Judith Wallerstein, author of the national bestseller The Unexpected Legacy of Divorce.
    http://www.americanvalues.org/html/r-wmm.html

  10. shitkicker says:

    willies!

  11. Michael says:

    This sums it up nicely. When conservatives are asked to stop moralising and produce their evidence, (then do), liberals respond with “Fuck off. Fuck off. Fuck right the fuck off.” My old boss used to say “The truth just is”. Pity the liberals won’t accept it.

  12. Hank Scorpio says:

    Well, a reasoned counter-argument was produced by Craig two comments above yours. Reading.

  13. shitkicker says:

    michael is willies

  14. Real Craig says:

    Ah, Steven Nock. In an affadavit during the Halpern v Canada same-sex marriage case produced by Dr Judith Stacey of New York University and Tim Biblarz, her associate, it was noted that Dr Nock’s background was in demographics and that he had no professional disciplinary background in pediatrics and developmental psychology.

    Moreover, social conservative ‘marriage movement’ critiques of same-sex parenting tend to not be circulated in peer reviewed journals and accepted by professional associations as legitimate grounds for public policy.

    An excellent literature review of the existing pediatrics and developmental psychology research is:
    Judith Stacey and Tim Biblarz: “Does the Sexual Orientation of Parents Matter?” American Sociological Review: April 2001: 58:2: 158-183.

  15. Franz says:

    Michael…
    This is what I am, I am a man
    so come and dance with me Michael
    So strong now, its strong now
    so come and dance with me Michael
    I’m all that you see, you wanna see
    so come and dance with me Michael
    So close now, its close now,
    so come and dance with me, so come and dance with me, SO COME AND DANCE WITH ME

  16. Hank Scorpio says:

    How about same-sex partnerships (not relationships) between family members? Say, two sisters? Two brothers? A grandmother and an auntie? Grandfather and uncle? Would a child be subject to the same tragic upbringing as he/she would if their same-sex parents were in a relationship?

    I’d like to see Chris and Bob explain Full House.

  17. Craig Jr says:

    In a review of all the studies that purport to find no difference between children raised in families by same-sex parents and parents of different sex, major methodological flaws have been noted. For example, the studies have very small sample sizes, biased sample selection, or lack of control groups

    Here’s a good summary of the methodological flaws from the Woodrow Wilson School of Public and International Affairs at Princeton University and the Brookings Institution
    http://www.princeton.edu/futureofchildren/publications/journals/article/index.xml?journalid=37&articleid=108&sectionid=700

  18. Hank Scorpio says:

    That is interesting, Craig, but it also weakens the anti-adoption argument as well.

    How can anyone make an informed asssessment about how well same-sex couples are as parents, when a “full” study into same-sex parents has yet to take place? Doesn’t make sense to draw any conclusions when one “side” has yet to be properly investigated.

    My personal feeling is that while that stuff may be up in the year, what defines good parenting is not. It’s consistent, and can be applied to any number of family make ups. I’m yet to be convinced beyond a shadow of a doubt that gender or sexuality plays a significant role in subverting “good parenting” ideals.

  19. Real Craig says:

    Insofar as the examples that my namesake has posted, don’t be fooled. Again, this is an instance of illegitimately applying the strictures of one discipline (ie demographics) to another (ie pediatrics and developmental psychology). That was the case in terms of Nock’s claims, rebutted by Stacey and Biblarz. It was pointed out that if that claim were to be taken seriously, most existing biomedical research would be disqualified.

    Furthermore, why is then the case that so many child health, welfare and development NGOs seem to support same-sex parenting, given that at least some of their members would be aware of the alleged ‘methodological’ flaws cited in this context? It tends to be the social conservative antagonists of same-sex parenting whose research methods are inadequate, or who are opposed by mainstream child health, welfare and developmental NGOs. Moreover, apart from backwaters, it is usually those NGO professional associations whose evidence-based research is taken seriously in judicial and legislative decisions.

  20. Hank Scorpio says:

    Real Craig, your sensible and reasoned arguments can’t stop the tears of Baby Jesus falling. 9/11 never forget.

  21. Craig Real says:

    For every NGO that supports it, there are NGO’s that disagree. Stick to the research and evidence real craig. Many NGO’s are simply puppets of the UN political agenda – as we saw evidenced in the recent debate on s59, despite overwhelming (and continued) opposition.

  22. LOL says:

    “up in the year”… classic

  23. smackdown says:

    hank is a lame brain

    get a clue weirdo

  24. Kat says:

    Good article Elle. In my opinion it doesnt matter what your sexual orientation is, if you are a good parent, you are a good parent. I think Gay couples should be allowed to adopt children together.
    My question is why are single men (who have passed all the adoptive standards and regulations) only allowed to adopt a boy, not a girl? Single women can adopt a boy or a girl.

  25. A. Leverkuhn says:

    And what’s Geiringer’s stake in all this ? Just curious …

    A. Leverkuhn

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