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Saturday 10 October 2009

Adoption Law and Same-Sex Parents

Posted in: Comment
By Craig Young - 23rd August 2009

As the question of same-sex parental status under the Adoption Act 1955 has been in the news lately, what is the current status of same-sex parents insofar as this form of acquired parental responsibility goes?

Consulting the recent thirteenth edition of Butterworth's Family Law in New Zealand (2007), I found the following to be the immediate context. As we know, the Adoption Act 1955 does not permit anyone but married heterosexual spouses to adopt children, although there is debate over this issue within the Family Court of New Zealand itself. Adoption has fallen into disuse as a parenting option due to the widespread availability of effective contraception and abortion access for straight women, as well as the permissibility of solo parenthood and the resurgence of whangai (whanau relative) adoption amongst Maori. Most adoptions are now partner/coparent adoptions. LGBT parents already have access to in vitro fertilisation, as well as guardianship and fostering responsibilities.
Even before the United Kingdom legislated for equal LGBT adoption responsibilities in 2002, the English Family Division of the High Court there was willing to recognise a lesbian coparent in her joint parental care and responsibility for their child (In re W [1997] 3 WLR 708).
In New Zealand, there are two relevant cases that depict how unwieldy the current law is. Single people can adopt, and so Application by RH to adopt RTH (Family Court Napier A, 31/84) was successful, but that was because the lesbian coparent was sole carer for the child and its biological mother had been absent for several years. In that context, it was concluded that given her proven parental responsibility and commitment, continuity of care entitled RH to acquire full single parental responsibilities.
In Re an Application by T [1998} NZFLR 769-775 though, matters were unnecessarily confusing. A lesbian coparent had applied to adopt her partners child, and the couple had been together for the last seven years, while their child had been born four years ago by donor insemination and the partner was already guardian of the biological mother's two older children. The biological lesbian mother supported the application. The Family Court turned it down, so the couple went to the High Court.
Justice Ellis noted that an advantage of such an order would be enhanced family security and stability, caregiver equality and reduced custody risk fallout should the biological mother die or become incapacitated. He only saw one problem, which was that the child would be unnecessarily confused by the exchange of adoptive parent legal and biological parental identities. However, a guardianship order was available for the two women, and if it were decided today, the Care of Children Act 2004 provides for immediate recognition of coparent status as jointly responsible parent in this context.
However, and tellingly, Justice Ellis also acknowledged that if the Adoption Act's spousal definitions were broader, there would be no problem, as if they had been a married straight couple within a blended family situation, the court would have had that jurisdiction.

Phillip Webb et al (ed) Butterworths Family Law in New Zealand (13th Edition) Wellington: Lexis/Nexis: 2007.

Craig Young - 23rd August 2009

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