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.