The future of adoption law: moving past our 1950s framework

The future of adoption law: moving past our 1950s framework

Last year marked the 60th anniversary of the Adoption Act’s entry into force. The sheer age of this Act should surely signal to Parliament that it is in dire need of amendment. Despite its ancient origins, reviewing the Act has been continually moved to the bottom of the Parliamentary ‘to-do list’ for well over 20 years. With the Act blatantly failing to match up with contemporary attitudes and laws and a decision recently being issued by the Human Rights Tribunal stating that it is discriminatory, one is left questioning how this important piece of New Zealand legislation has been neglected for so long.

hands holding children's picture of family

“The tribunal issued seven declarations that certain provisions in adoption laws are “inconsistent with the right to freedom from discrimination affirmed by s 19 of the New Zealand Bill of Rights Act 1990”.

The Act very much reflects attitudes and practices at the time it was passed, when adoption was seen as an embarrassing matter for all parties, due to the stigmas present in society regarding illegitimacy and infertility. A 1950s attitude towards the ‘ideal situation for children’ (a nuclear family type scenario, with a married mother and father) is also heavily embedded in the Act. The current framework acts as a statutory guillotine, severing all legal ties between birth parents and their biological children. While this was a desired consequence at the time the Act was passed, the culture of secrecy regarding adoption has since dissipated, and the negative effects of closed adoptions on adopted children have been discovered.

The introduction of the Adult Adoption Information Act 1985 enabled birth parents and adopted children to locate one another once the child turned 20. The current Adoption Act has not been updated to reflect this process or the move towards open adoption (where the birth parents maintain an ongoing relationship with the adoptive parents and child), which is now widely practised. The entrenchment of closed adoption in law also continues to be a growing concern in respect to Māori values and beliefs, as the Act does not take into account the collective views of wider whānau in the adoption process and fails to acknowledge the whāngai system, which is similar to open adoption. Put in the context of today’s society, this outdated approach to family structure has created social and legal tensions. Courts are continually left struggling to reconcile this attitude with a more modern, holistic view of what creates the best situation for a child.

Other situations that are important in our current social climate but that were not contemplated at the time of the Act’s enforcement, such as surrogacy, IVF and gay marriage, further complicate the struggle when dealing with such archaic legislation. This shows the need for a new Act that can provide clear and comprehensive legislative guidelines when dealing with these issues. The New Zealand Government has largely ignored criticisms and calls for reform, including multiple proposed amendment Bills, which have been left to languish in Parliament. Despite the recommendations made by multiple judges, official committees and various other parties, adoption reformation seems to be continually overlooked in favour of more ‘urgent’ matters. In a country that prides itself in being relatively progressive and in line with human rights, the Act now serves as an embarrassment to our domestic legislative framework and international obligations.
Adoption Action Incorporated v Attorney-General

A decision that many commentators are anticipating may finally prompt a successful attempt at overhauling the Adoption Act was recently made by the Human Rights Tribunal. Reform lobby group Adoption Action brought the case against the Attorney-General and are hoping that the Tribunal’s unanimous decision will now translate into a law change. In this ruling, the Tribunal held that the Adoption Act (along with the Adult Adoption Act) breached the Human Rights Act 1993 and the Bill of Rights Act 1990. The tribunal issued seven declarations that certain provisions in adoption laws are “inconsistent with the right to freedom from discrimination affirmed by s 19 of the New Zealand Bill of Rights Act 1990”. These are some of the grounds for finding discrimination:

  • Marital status and sexual orientation: This is one of the largest issues following the legalisation of same-sex marriage in New Zealand. The Act still provides that same-sex couples in a civil union or de facto relationship are unable to jointly adopt. Opposite-sex couples in a civil union are also unable to adopt under the current legislation. There is also no requirement that the partner of an unmarried sole applicant needs to give consent for an adoption, while there is such a requirement for a married applicant’s partner.
  • Gender: For an adoption to go ahead, a birth mother’s consent is always required (barring some exceptions). If a birth father is not married to the birth mother, his consent for adoption is generally not required. Furthermore, a sole male applicant must prove ‘special circumstances’ before he is permitted to adopt a female child.
  • Disability: The law makes it possible for a court to dispense with the consent of parents when granting an adoption order on the grounds of their physical or mental incapacity.
  • Age: No one under 25 can adopt unless there are special circumstances or the child is a relative.

Unfortunately, the Tribunal was restricted to a declaration of inconsistency as its only remedy for this situation, but the time for the Crown to appeal has now expired, and the Minister for Justice is required to file a report on the declaration by 15 August 2016.

While Adoption Action’s claim has served to place more pressure on the government in terms of adoption reform, these declarations only focus on a small proportion of problems present within the Act. Many past attempts at reform have fizzled out, but with this new surge of criticism and growing social pressure, many of us are waiting with bated breath to see if we will finally observe an overhaul of this archaic Act. Reforms of the Adoption Act would serve to move New Zealand into the future through removing discriminatory policies present in this integral legislation while achieving healthier and safer outcomes for children involved in the adoption process.

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