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Baby steps

Posted in: Features, Ask Our Expert
By Jacqui Stanford - 30th July 2011

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Jacinda Ardern (left) is urging Simon Power(right)to look at the issue.
Labour MP Jacinda Ardern has launched the heady long-shot of a private member's bill to reform the adoption law, but she's also thrown a ball firmly into Justice Minister Simon Power's court.

Ardern, who is Labour's Youth Justice spokeswoman and Auckland Central candidate, will next week table the Care of Children Law Reform Bill, which would require the Law Commission to review and update adoption law to better reflect modern New Zealand, and put the interests of children at the heart of any decision-making about their future.

The MP concedes putting the bill in the ballot is 'a bit of a lottery', which is why she has also written to Power asking him to start reform. "There's no reason why we should need to wait. The Government should be progressing change to our adoption laws," she says.

"Simon Power himself has acknowledged that adoption law in New Zealand needs to be reviewed. But what he's also said it isn't a priority. I hope that the Minister will tell us why kids in New Zealand aren't his number one priority."

The Care of Children Law Reform Bill would replace the current 1955 Adoption Act, which Ardern says is antiquated and discriminatory and needs changing.

"The current Act fails to recognise that more than three quarters of children adopted today are not adopted by ‘strangers' but by wider family, including relatives and long term partners of the biological parents," she says.

"It also fails to take into account the number of legislative changes introduced over the past decade areas such as assisted reproduction technology, surrogacy and the legal status of de facto relationships and civil unions."

Ardern believes the bill would ultimately see the discrimination against same-sex couples in the arena of adoption end, based on the fact the Law Commission already recommended that form of discrimination be removed from the law. "Obviously they'll no doubt recommend that again. And this bill will mean that recommendation can go straight before Members of Parliament."

While the same-sex aspect of the debate has been the most contentious in the past, Ardern points out the Law Commission's recommendations were overwhelmingly met favourably.

"I think the key thing to remember here is that same-sex couples are already raising children together. And now it's a matter of making sure that they'll be given the legal backing to do a job they're already doing. But as I've said it's about civil union couples, de facto couple, whangai adoption - it's about a range of issues and just making sure that at the heart of that is the welfare and best interest of kids."

Where are we at with adoption?

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Life has become a lot more complex since 1955 on a number of levels and there are many areas the law simply doesn't cover. Most children who are adopted are not taken in by 'strangers', and, as Ardern points out, the change that is needed in the gay adoption and parenthood arena is about giving parents who are already raising kids together legal backing.

Canterbury University Lecturer Nicola Surtees is carrying out a study into the phenomenon of 'gaybies', that is gay men and lesbians having children together and co-parenting, which has given her a great insight into what's happening in the gay parented homes; where people are having success within the current law and what the ongoing struggles are.

Surtees says lesbian-parented families are alive and well in New Zealand and have been for many years. She says initially, most lesbian parents were raising children who were born into previous straight relationships, but these days many have had children within their same-sex relationship.

"Gay parented families are less common. It's harder for gay men to find lesbians to conceive and raise children with and/or to find a surrogate so that they can go it alone as parents. That said, there are gay dads out there and more and more gay men appear to be seriously considering the possibilities of being dads in some capacity."

Surtees has recently written a journal article which drew from a Families Commission research project, which has insight into how gay parent families are functioning under the current law and how they are most impacted.

She concludes that "despite the progressive nature of New Zealand family law, the rules that determine parental status and parent-child relationships have not kept abreast of the diversity in the family structure deriving from social change and reproductive technologies."

The researcher says gay and lesbian-led families which comprise of three or more households require further attention and more than two parents should be able to be identified in the law. "In particular, the parenthood of donor fathers needs to be recognised and protected in the law so access to children and parenting participation is guaranteed regardless of shifts of intent or untoward events. In turn, this will protect children's right of access to their fathers."

When it comes to other explicit changes that would be needed to end discrimination, Surtees tells GayNZ.com second parent adoption would be useful for non-birth mothers where their children were born before a 2004 amendment to the Status of Children Act which enables two women to be named as legal parents on a child's birth certificate. "These non-bio mums have the option of becoming guardians to their kids but that is not the same as legal parenthood. At the moment, if the non-birth mums were to go for adoption of their kids, the birth mum would have to give up her legal parenthood."

Surtees says gay men who have had a child via a surrogate with one of the men donating the sperm are also discriminated against. "The biological father (as sperm donor) has to adopt his own child! That seems plain wrong to me, why should he have to adopt his child? Partners of men in this situation who are expecting to be dads too also need to be protected."

Where to from here? 

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Ardern's move comes as advocacy group Adoption Action has also launched a campaign to have the half-century old legislation overhauled. It has filed a claim with the Human Rights Review Tribunal saying current laws breach the Bill of Rights and the Human Rights Act.

The Law Commission and the Human Rights Commission firmly agree the law needs to be changed, and there has even been some movement in the courts: last year a key precedent was set in the High Court when Victoria University Senior Law Lecturer Claudia Geiringer successfully argued that the word 'spouse' could mean one partner in a de facto relationship.

Lobby group Family First unsurprisingly thinks the law should be tightened up to ensure only marries straight couples can adopt, so there is bound to be an abundance of debate as the issue is once again placed firmly in the spotlight.

Is your family impacted by the current law? We would love to hear from you. Email news@gaynz.com


Jacqui Stanford - 30th July 2011

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