Last week, a full court of the High Court (this means 2 judges – commonly the way that test cases are heard and decided) significantly widened the pool of adults who can legally volunteer to adopt children in New Zealand.
The last time Parliament considered the issue was back in 1955 when it passed the current Adoption Act. Not surprisingly, given the values of the time, Parliament restricted eligibility to adopt to married couples by the use of the word “spouse” in the Act. When the civil unions and relationship property acts were passed, the definitions in the Adoption Act were left unchanged.
The test case came before Justices John Wild and Simon France, both highly regarded members of the Court. What they had to decide was whether the term ’spouse’ as used in the Adoption Act 1955 should be interpreted today as including unmarried people living together. It was argued that it should, largely because the New Zealand Bill of Rights Act, as enacted in 1990, contains a prohibition of discrimination on the ground of martial status. The Bill requires an outcome consistent with its provisions wherever possible.
The Court found that, to give effect to the ban on marital status discrimination, it had to interpret the word “spouse” as including people in de-facto relationships. The parties to the case had agreed that the interpretation they were seeking extended only to test whether heterosexual relationships were included in the ruling, and the Court records this limitation in its reasons for judgment.
However, logically, the ruling extends eligibility to be considered for adoption to anyone in a marriage, civil union or (straight or gay) de-facto relationship. This is so for two reasons – the definition of “marital status” and the fact that “sexual orientation” is also a ground of prohibited discrimination in the New Zealand Bill of Rights Act.
The number of adoptions that actually occur each year in New Zealand is small -guardianship and other legal forms allowing for the care of children without legally extinguishing the birth relationship are more usual these days. But the decision is important. Children who are in need of adoptive parents should have the right to have those parents selected from the widest pool of appropriately-qualified people possible. Unless amended, the current Act, as now interpreted by the High Court, restricts them to people in a relationship. At some point soon Parliament should widen the pool further. Who can seriously argue today that single, or divorced, or widowed people can’t make great parents? And as you would imagine, there are other anomalies in legislation that is now 65 years old that need fixing up.
Right now, though, it’s good to read a sensible decision from our Hight Court that shows the Bill of Rights to be a valuable tool in keeping the law up to date.
I’m in two minds about single people adopting, but have an open mind to arguments either way
there are other anomalies in legislation that is now 65 years old that need fixing up.
That’s what we have a Parliament for Charles.
I have no problems with single people adopting – I think that so long as the person/s wanting to adopt can provide proof that they are guaranteed to provide a better home for the child than their biological parents then I am all for it.
In terms of spouse – to me this has equal legal status as next of kin. Therefore where a couple are wanting to adopt, the child should only be able to legally be adopted to the couple (as opposed to one of the potential parents) where that couple’s relationship is recognised in the law.
This means that should that couple split, both will have equal rights with regard to sustained access and/or custody of the child.
In terms of same sex – well if the above test is met then no one has any legal right to argue against it.
Quite true Richard. It’s a shame that when the rest of the western world was moving on gay adoption we for nine years had an illiberal socially conservative government in power.
Solo parenting can be a rough ride
While it is hard spud, its mainly due to the limited income. If a person was able to provide for the child, then there shouldn’t be a problem.
I was hoping you would say something
I happened to be sitting next to someone from the law firm that took this case when she heard about it, she was totally stoked.
@Rebecca: given the legal recognition of de facto status in our property laws, would that be enough for you, or are you saying adoption should be restricted to those with a marriage/civil union?
A Mother no, it is about far more than being able to provide for a child when it comes to adoption.
The adoptive parents have to be able to guarantee that the child will be given a better life in terms of their overall wellbeing.
Most children that are up for adoption in NZ are from less than favourable backgrounds, further they are nowadays, usually open which means that the adoptive parents are in many ways, adopting the child’s biological family. Or so I have gathered as I was of the understanding that NZ no longer does closed adoptions.
This means that the adoptive parents have to be well-equipped to handle the stresses that go with this.
However, like Charles has said, adoptions are actually quite rare these days with non fertile parents being more inclined to go for IVF which can include surrogates (where they then have the option to adopt the child from its mother once the child is 10 days old…..goes through an ethics committee).
Lucy – no de facto should not suffice in my view.
If a couple want to adopt another person’s child then they should be secure enough in their relationship to sign on the dotted line – whether in marriage or civil union.
Bottom line unless you relationship has this legal status you are not regarded under the law as next of kin. You may get the house but you won’t be able to arrange the funeral…..
For an adoptive child to have full security in terms of continuity of care from both parents then I think they should only be adopted into a family where the parents have this status.
As Charles says there are a very small number of adoptions in NZ each year, however all children deserve loving forever homes and these can come in many shapes and sizes as the range of people providing full time guardianship can attest.
Being married does not mean that divorce is not imminent, being in a de-facto does not mean that that commitment is not there.
Emma it is not about marriage or civil unions guaranteeing the relationship, it is about guaranteeing the right of the child to receive continuous care irrespective of whether their adoptive parents are together or one day separate.
I don’t think that the 5 year survival rate of marriages is much better than the 5 year survival rate of recognised defacto relationships. (My impression only)
Can you explain how a marriage or a civil union achieves this aim in a better way?
Rebecca are solo mothers not capable of providing a safe and loving home for their children?
But where there is a couple both should be able to have legal guardianship of a child.
Nicola – read my posts above….
Loota – rather than me answer this question, can you explain how if a child is adopted into a family where the parent’s relationship is not recognised as legitimate for the purposes of FULL spousal legal rights, that this child is guaranteed continuous access to both parents should the separate?
My suggestion is you read up on this issue yourself instead of expecting me to provide all the answers.
I can substantiate my opinions, question is, can you? Have you even read anything on adoption law in NZ? Do you even know how it works? I do as it is something that we would consider doing.
Nicola I am not sure they would; the law does not currently allow de facto couples to adopt children.
If the law was to change so that this was possible then they have to consider somehow legitimizing the relationship outside a civil union or marriage. This would no doubt be far more complicated that mere changes to how property is divided.
I apologise Rebecca, I failed at multi-tasking and misread what you had said. Silly me!
Loota marriage achieves that right of continuous care better at the moment because both adoptive parents can be legal guardians. In de facto or same sex relationships only one can have this status so if it splits up they are torn away from one parent. And if the one with legal guardianship passes away the situation is even worse… this is what I understand the situation to be.
Thanks Nicola & well said.
I’m not naive enough to believe that money is enough for a secure home, of course you need to be able to provide a loving secure home as well as money. That is what I ment by provide. Though I do admit my post was confusing as I spoke about how its hard for solo parents due to money but then spoke about provide. It was clear in my head but I can see how it was unclear typed out.
I don’t think that a peice of paper makes any difference.
Thanks Nicola, appreciated.
I understand this issue very well (personal experience) – my point is that being married at the point of adoption does not guarentee continuity of care. As the family court person told me (in response to my direct question) “no the court cannot require a parent to see their child.”
Family is about choosing to be committed, to stay involved in the child’s life no matter what happens in the adults’ lives. This is not related to adult marital status but is a value a personality thing.
Interestingly the research in Time magazine last month, which was forwarded to me by numerous friends, – discussing a long term study that children brought up in same sex homes seem to be more confident in themselves and their social skills and values than peers brought up in heterosexual parent families, would indicate same sex couples would make good adoptive parents.
Thanks for a really thoughtful debate.
@A Mother – You’re a good mother and yes a solo parent can make a loving home.
@Emma – Those families must be having a gay old time
That is interesting Emma, food for thought.
I definatly believe “Family is about choosing to be committed, to stay involved in the child’s life no matter what happens in the adults’ lives. This is not related to adult marital status but is a value a personality thing.”
Emma – I see what you mean but I am referring to the legal guardianship side of the issue as Nicola so eloquently put it. This is very important if one parent passes away.
Re “children brought up in same sex homes seem to be more confident in themselves and their social skills and values than peers brought up in heterosexual parent families”
Sorry but I do not believe that this can possibly be substantiated: a child’s long term well-being depends on who their parents are as individuals. This has nothing o do with who they choose to have sex with.
Same sex couples are no less likely to neglect, abuse or maltreat their children in any way that heterosexual couples.
Good parenting comes down to how the individual parents were brought up and how much they choose to be proactive parents who engage with their children.
Thus, ones sexual preference should have no relevance to this debate seeing as same sex couples can legitimize their relationships just as easily as heterosexual couples.
This issue is about whether couples who have not signed on the dotted line should be allowed to adopt a child as a couple.
I don’t think the law will ever be able to allow this due to the need for both parents having to be the child’s legal guardian.
I think sexual orientation of the parents is a factor and is personally why I am opposed to changes to adoption law. Can’t tell me homosexual parents won’t have some effect on a child, just like spousal abuse. I would like further studies and experimentation done on homosexuals before we put any children under their care.
Wow Jake you’re a brave person to be saying such things on a liberal site, especially on the post written by a gay MP!
The only further studies I would like done is perhaps that showing that where all good parents are concerned, children benefit just as much from a great same sex couple as they do from a great heterosexual couple.
I am a firm believer that children benefit most from the traditional nuclear set-up – that is, a Mum & a Dad so long as they are committed to/love each other and love, nurture and engage with their child.
This is said without any disrespect to those fantastic solo parents who more than outweigh families where the parents are fighting, abusive, not committed etc.
A single happy parent is far better than an unhappy couple…
“I would like further studies and experimentation done on homosexuals before we put any children under their care.”
….. seriously?!
“would like further studies and experimentation done on homosexuals” – Argh! Experimenting on people, only sickos enjoy doing that!
Rebecca, you sound quite liberal considering your test results
@Nicola – don’t you get sick of people who dehumanise others in their minds and think it’s okay to treat them as animals to be experimented on?
Yes Nicola. Some people are still like that. The legal issue is a worry Rebecca and I understand where you are coming from with that but think that they need to look at that and change the laws.
Spud – generic tests don’t always give a true picture….
I am most definitely not liberal in terms of values I promote, but I am hugely accepting that the world is what it is and ones choices is actually ones own business.
My concerns lie mostly with encouraging a society that believes in ‘walking the talk’ and promotes compassion, empathy and understanding.
Where children are concerned I get eternally frustrated with this view that we are entitled to have children as a matter of right – this is wrong in my view as they are a privilege and should be treated as such.
This is where I would like more emphasis placed.
One thing to always bare in mind is that prospective adoptive parents almost certainly view children as a privilege as it is a HUGE commitment in more ways than one (especially given how they are generally open adoptions these days).
One thing I will add to the argument in light of Jake’s comment….
What do you say to those people who believe that if as a couple you are reproductively incompatible – that is, never had a chance of physically conceiving a child due to being with someone of the same sex, then you have no right to a child, that adopting children should be the prerogative of those couples who are infertile by ’standard’ definitions…..
“Spud – generic tests don’t always give a true picture”
Define what you consider to be generic tests. Experiments sound evil.
I agree that most adoptive parents have the best of intentions.
As for your last point, Lesbians are luckier in this sense, they can go and buy some sperm and get one of them preggers
Spud – no I meant that where the couple is naturally incompatible by way of natural biology – girls need boys in one form or another to get pregnant just the same as boys need girls.
Unless of course science goes so far as to artificially manufacturer sperm & eggs.
Generic tests – refers to the one we took last week. Very black & white and repetitive so as to try and push the candidate in one direction or another.
Most of us have lots of grey areas…..
“If a couple want to adopt another person’s child then they should be secure enough in their relationship to sign on the dotted line – whether in marriage or civil union.”
But a single person can adopt, i your opinion, even though they may marry or de facto a totally unsuitable person later, after the adoption has gone through?
Rebecca, you make an interesting point. Some argue that infertility is natures way of saying “whoa back up the truck, this doesnt look good for the future of mankind”.
Put another way with new medical breakthroughs and technology, we are able to have children we wouldnt (they would die in vetro or still born, or shortly after birth) and this is a form of population control (natural)
@Becks, I know – that’s why I mentioned the lesbian sperm buying thing.
I think rigorous testing even for straight people is important, you don’t want bad parents getting the kids.
Tracey – yeah but those kids put up for adoption are already rejected by their parents so population control doesn’t come into adoption.
Tracey – re single person yes I totally believe a single person should be able to adopt as if they were to meet & live with someone it is not like anyone would reasonably expect them to hand the child back because they were now de facto…
But where a couple is concerned I believe their relationship has to be recognised under the law by way of Civil Union or Marriage so that both parents can become the legal guardians of the child.
In terms of the same sex issue – the difference would no doubt be focused on the fact that naturally they could never have a child therefore not as eligible perhaps as the heterosexual couple who discover upon trying to have a child that they are infertile. They have the ability to produce the whole package (egg, sperm & womb) whereas the same sex couple do not.
When I stated “reproductively incompatible” above by definition I meant as naturally compatible as a horse is with a fish – that is, consummation for the sole purpose of reproducing is naturally/biologically impossible.
Like it or not, these kinds of things would no doubt be raised should same sex couples wish to adopt.
The other thing I would like to know is where is NZ law with respect to same sex couples wishing to use a surrogate? I swear I read something about a lesbian couple being the surrogate (or one of them agreed) for a gay couple?
I have noticed in all these conversations, comments and feedbacks between people here, no one has given a dam to the fact its the BEST interest of a CHILD to have a balance, male and female.
to try and take away the fundamental knowledge a child should be some how given a chooice or a representitive to SPEAK on thier behalf, to ask someone first IF they liked to just be placed into a home with same sex as oppossed to male and female home?
Is it not a LIBERAL thing to do to give liberity to a child to choose, I never see or here ever on these same sex sites, what is in the best interest of a child, only what the same sex couple WANT to take as what they feel is their right?
Deleted. You have the right to express your views but not to resort to homophobia. Clare
Adoption is ALL about what is RIGHT for a child, and yes Children have rights to choose as they should.
The majority of children in NZ are fosterd any way and older children, also MOST NZ Adoptions are only Open Adoptions where as its the MOTHER or both parents that may agree to whom that child will be going to what sort of home they may like for that baby/child, VERY very few new born babies are Adopted out in NZ, compared to the 18,000 Aborted.
All same sex couples all where born to Male female couples or fleeting realtionships what ever in the first place any way, so why try and take away a child’s first option .
cut the PC now, seems a bit of contradicting here, gays have rights, well boo hoo, You seem not to care of the child’s needs of the truth and facts of life, men cannot ever replace a wee babies girls feeding needs, and a woman cannot fulfiil a wee boys needs to grow into a healthy all male boy … Other than being unfortunately born with same genitalia, and VERY mush different brain patterns, Gays and lessos are simply deceiving them selfs into thinking they are perhaps not who they where suppose to be….. often because of a sad past themslefs and unbringing, they think they know what is best for a baby? same sex couples , also only confuse children. They want to poison young minds in to thinking straight healthy married couples have it all wrong, what sad lifes gays must of gone through to be pushing thier pitiful case.
You are different because you want to be, A child does not seem to register here on this site as having any rights to thier say??
So if a boy or wee girl grows up in a same sex home, you also just may put them of having children themsleves in a healthy male female relationship, when all they see is Mommy and mommy in bed, Or daddy and daddy in bed together< goodness heard all this we have rights rubbish, Adoption is ALL about the FULL rights to have make and female role models.
homo phobia i am now told, oh go on bo hoo again, you talk about being LIBERAL lol! but then say I cannot EXPRESS myself? goodness this site is a real contradiction . Homos are just that and lessos are what they are , is straight is straight a naughty word to ? what hang overs some people have, once agin prove the point here, they are so over indugled in thier sexual orientaion they have missed the pint here, IT S CHILDREN they are after,,,, My child would never go same sex couples FULL STOP.
I have rights to express my right to view, rather if a was a child with no voice I would be scared I would be subjected to see daddy and daddy in bedd, or mommy and mommy in bed, how confused would you think a child would get.
Also facts stand as it is here, that most children in NZ are fostered by extended family first , no ties are ever cut even with unrelated Adoption in NZ, Open Adoption if any per yr perhaps 1-4 % are all there is, the Mother or and the father can see thier child as much as they like to or what is agreed with the ( shades of grey ) visiting arrangements prior to accepting the childs new parents.
To often children and placed in to a pawn situation, the child is either inconvinient to the Birth Mother but she cannot quite let the child go, so then the new parents became the rich caregivers all care and all responsibilty, and the birth mother plays house now and then, now that may sounds harsh but these are the facts, it would be nice if the baby perhaps could go back to the Birth Mother that would be ideal, but this is not a ideal world we live in, rather such a selfish world, of Children meeting or not meeting a persons needs then we can just dispose of them, all we read and here. Goodness hardly a Right to live, and people want to grab kid even if it means using another womans womb! the womb it seems has become a thing to either abuse” because its a right to Abort, or nowadays, well you can rent a womb, umm place things that way does sounds a little crazy, seems to fly a man to the moon, but no answer to ” the selfishnees” of the ever consuming give me culture, because its my right. I disagree.
Children are a GIFT and what ever and however you want to have sex with, CHILDREn should always have a advocate to speak on their behalf, and for their best interest,
Children should not be use for supply and demand.
You need a liecense to drive a car, you need to register it….
You need a registration for a DOG and need to train it…
You want and need to work and earn to buy and appreciate things and learn the value of life…
One LAW all need nowadays should be adults should pass some tests and have some checks in place way before any of them have Children, just because you may be lessos and homos or straight does not mean 0. Its not a right , its a girt, and children and not to be flushed down the toilet or in garbage bins of hospital sin the thousands each yr as they are, heck NZ thinks other places are third world! Children can be far more cherished in poorer countries, NZ is alos 3rd highest in abuse to thier own flesh and blood, thats not counting all the 18,000 killed ones in the womb.
NZ is not the way it use to be, or maybe I am old fashion and just see things through things for what they are,old school ace a ace etc, and when men where men and a woman was just that.
The media portrays and glamourises ADoptions, now ever where you read people seem to think its a right to have one, a accessory m haven’t got one just have to have one.
Wow, do people not realise that sexual orientation is there from birth? Otherwise how would you explain gays and lesbians still happening even with straight parents?
I miss Rebecca
And jabba 
We are talking about healthy straight relation ships that don’t suffer confusion and know the difference between healthy and unhealthy practices.
Children have rights to Healthy straight parenting first.
Yes agree male are born male, and female female funny that. And any one over the age of 5 did know, the original word GAY was meant or use to mean, to be Happy, nothing at all to do with ones sexual situation they choose to be.
To have a GAY OL time,was use in the context if the inocience of Life, nothing at all with sexual practice. Sad the word that wording Gay was and has ever been twisted.
Wow do people not realize it took a man to sleep with a woman to make a babies in the first place.
Men and men don’t and can never make babies, and woman and woman can never.