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The only Election issue so far – Gay Adoption

October 26, 2011

You could be forgiven for having missed the fact that in one month NZ heads to the polls for an election. You could equally be forgiven for thinking the only election issue so far is that of gay marriage and adoption. Amongst all the Rugby World Cup madness, it seems the only political issue to get any degree of coverage so far is the Labour Party’s policy release about legalising gay marriage and adoption.

So, what is the current legal situation for same-sex couples who want to adopt a child? The short answer is a same-sex couple cannot adopt a child together in the same way a heterosexual de facto or married couple can.

The reason for this is our adoption law allows an individual or a married couple to adopt a child. The Adoption Act states that a joint application to adopt may be made by “2 spouses” which has, until recently, been interpreted narrowly as a legally married man and woman. In 2010, the High Court opened the door for de facto heterosexual couples in a stable and committed relationship to adopt. It did not go so far as to decide whether “2 spouses” extended to same-sex couples.

When civil unions were established in 2004, the law was not amended to allow couples in a civil union to adopt. At the time, the Green Party sought to amend the definition of “adoptive parent” to include couples in a civil union. The amendment was not passed by Parliament. In the High Court decision discussed above, the Court saw this as a rejection by Parliament of the proposition that a same-sex couple might jointly adopt a child and viewed this as a “formidable barrier” to a successful application by a civil union couple.

An individual in a same-sex relationship can adopt a child on their own but their partner cannot share the same legal status. Only one person in the same-sex relationship can apply to adopt a child. Only that person will achieve the parental rights accorded by an adoption and be recorded on the child’s birth certificate as a “parent”. The other person in the relationship is then left to achieve a measure of legal standing in respect to the child by asking the Court to appoint him or her as an additional guardian of the child.

Another restriction in our adoption laws is that a single male cannot adopt a female child unless there are special circumstances.

Where a lesbian couple has a child through donor sperm insemination, both of the lesbians are recorded on the child’s birth certificate. The birth mother is recorded as “mother” and her partner is recorded as the “other parent”.

There is strong argument that, as it stands currently, our adoption law is discriminatory against same sex couples and opposite sex couples who choose not to marry. The approach taken towards same sex couples in our adoption law is inconsistent with the approach taken in other family legislation. The Adoption Act is 56 years old and is probably the oldest family law statute on our books. Its provisions reflect the social mores and attitudes of the time of its making that held that marriage was a requirement for the conception and upbringing of a child. The issue is that (to misquote Dylan) “the times they have a-changed”.

If you want  help with a family law issue, go to www.familylawresults.co.nz.

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