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February 28, 2011 | by  | in Opinion |
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Adoption

Everyone always derides lawyers for being heartless creatures. But the reality couldn’t be further from the truth. While some tax lawyers are undoubtedly drier than the Sahara, the law can’t seem to get enough of love.

Legislation is used to regulate almost every facet of our love life. It states the age at which you can have sex for the first time; it protects you against unwanted advances in the workplace; it protects you if you’re selling your body in the workplace; and it figures out how property is to be divided up, if your partner turns out to be a massive douche.

When it comes to love, the law’s got your back. But there are areas where things have gone and got terribly confused. Misguided attempts at protecting love have led to injustice, mystification, and a whole lot of heartache.

The law not keeping pace with social mores was demonstrated last year in the High Court of Wellington. The case of Re AMM & KJO, involved a de facto heterosexual couple who wished to adopt a child. By all accounts they were excellent candidates for parenthood. But according to the New Zealand’s draconian Adoption Act 1955, only married couples can adopt. And thanks to the existence of both the Civil Unions Act 2004 and the Marriage Act 1950 only heterosexual couples are allowed to be married.

This created a tricky legal issue. In 1955 the term “spouse” was intended by Parliament to mean a partner in marriage. But today, spouse can be used in a variety of different relationships.

But the couple had an ace up their sleeve. They argued that “spouse” should be interpreted consistently with the Bill of Rights Act 1990, which enables judges to give preference to meanings that are consistent with fundamental rights—as long as the meaning is reasonably possible on the statutory text.

It was a long shot. The text was definite, the Act was written in 1955, when relationships outside of Marriage were treated with scorn. But the judge unexpectedly accepted the couple’s argument. To restrict adoption to married couples was discriminatory. Justice won out on the day, right?

Well no, not entirely.

The judge went out of his way to limit the scope of his ruling only to heterosexual de facto couples. Gays and lesbians (who can currently not adopt) were once again denied the same basic legal rights afforded to straight society.

But it was worse than that. The ruling confused an area of law already marred by inconsistency. Now the circumstances in which a couple may adopt now bear no connection with reality. Married heterosexual couples may adopt. Civil Unioned heterosexual couples may not. Heterosexual de-facto couples can adopt, homosexual couples in a Civil Union can’t – and it’s too early to say if gay or lesbian couples in a de facto relationship can.  What a truly absurd mess.

Unfortunately the solution is not quick or simple. Amending the Act could solve things in a flash, but that would miss an opportunity for wide-ranging reform.

The Act is badly out of step with modern values. It was written during a time when the majority of adopted children were unwanted or unplanned. Legal relationships between birth mothers and adoptive parents were severed. The best interests of the child were not a consideration, and international principles regarding the care of children were conspicuously absent.

New Zealand has already led the way in reforming other laws relating to youth and children.

Now it’s time to go back to the drawing board and imagine new legislation that drags adoption kicking and screaming into the 21st century.

True reform would result in a law that puts children’s interests first, allowing for a rainbow of families to give them the love, support and care that they deserve. And thankfully, it will be those love-obsessed lawyers resolutely campaigning to make it happen.

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About the Author ()

Conrad is a very grumpy boy. When he was little he had a curl in the middle of his forehead. When he was good, he was moderately good, but when he was mean he was HORRID. He likes guns, bombs and shooting doves. He can often be found reading books about Mussolini and tank warfare. His greatest dream is to invent an eighteen foot high mechanical spider, which has an antimatter lazer attached to its back.

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