Working to change adoption law: Latest Member's Bills

Adoption is lodged deep in New Zealand’s psyche. This week’s episode of Tricky Business showed a birth mother trying to approach her daughter. She would have been adopted in the 1960s, when we had one of the highest rates of “stranger” adoption in the world. For each person involved, the repercussions last a lifetime and often beyond.

New Zealand was once in the vanguard of adoption law. In 1881 this was the first country in the then British Empire to provide for legal adoption. No secrecy was involved. Since then we’ve fallen far behind. It’s now 57 years since adoption law had its last thorough overhaul.

The Adoption Act 1955 is the oldest statute in regular use. Despite new laws on access to information, intercountry adoption and reproductive technology, the basic law is fundamentally unaltered.

From the start, adoption was controversial. It was seen as immoral, because it allowed “fallen women” to redeem themselves and start afresh. But the debate shifted as public views of sex and sin, children and families changed. By the 1950s, in the aftermath of war (which brought, as it still does, more infertility and many more out-of-place babies), adoption looked different. Now it was an ideal way of providing babies for childless couples and a fresh start for their mothers (their fathers were more or less ignored). All it took was a “clean break” and lifelong secrecy (except for the adopters, who saw the name of the birth mother on the adoption order).

The Act never made it illegal for birth families and children to look for each other (though lawyers taking birth mothers’ consents often told them it did) - it just made it extremely difficult. As those adopted under this regime grew up, many children and birth mothers started speaking out about how they really felt, with support from some adoptive parents.

In 1978 Jonathan Hunt introduced the first Bill designed to allow adult adoptees and birth mothers to identify each other. It took seven years’ intense debate to get the Adult Adoption Information Act passed, and even then it had major restrictions. Two years after it came into force in 1986, close to 11,000 adopted people (around one in four of those eligible) had used it, as had over 2,500 birth parents.

By then sympathetic social workers were all too well aware of the grief caused by the old “clean break” rule. From the early 1970s they found ways to humanise the process. As always with adoption, supply and demand had an influence too. By the 1980s, with so few women considering adoption, the ones who came to Social Welfare were able to choose their child’s new parents from a broad group of applicants, meet them, and talk about how they could continue to be involved in the child’s life.

But the law stayed the same, and none of this openness has any legal backing. When an adoption takes place, every relationship with the birth family is cut. This runs completely counter to how Maori and many Pakeha see birth links. The child gets a new “birth” certificate showing the new name, with the adopters as the birth parents. The original one is sealed until the child turns 20 and can ask to see it (providing he or she knows about the adoption). The named birth parents can get identifying information too, though with more conditions.

Reforming adoption law
For at least three decades, people have been trying to get the 1955 Act reformed to bring it into line with later legislation on the care of children, and contemporary concepts of what works best for children and families of all kinds. The most comprehensive blueprint for reform came in 2000, when the Law Commission published Adoption and its Alternatives: A Different Approach and a New Framework.

Backed by extensive research and consultation, the commission made over 100 recommendations, and summed them up this way:
• guiding principles should be a part of adoption legislation;
• adoption legislation should provide for support services to be available throughout the adoption process;
• issues of jurisdiction, citizenship and intercountry adoption should be clarified;
• amendments should be made to the definition of who is eligible to be adopted;
• categories of persons eligible to adopt a child should not be limited, although suitability should be carefully assessed on a case-by-case basis;
• procedural requirements for giving consent to an adoption application should be strengthened;
• there should be full access to adoption information for adopted persons, birth parents and adoptive parents;
• the applicability of the crime of incest and the law of forbidden marriage to adoptive families should be clarified.

Clear, sensible and straightforward, the report was an excellent blueprint for reform. It opened the way, for example, for de facto couples, gay or straight, to be approved as suitable to adopt. (Single people have always been eligible, though with conditions.) But at the time, political divisions on the select committee meant the report was never even tabled.

Over the last twelve years, despite repeated promises, no Government has been willing to tackle the Adoption Act itself. It has sat there like the ghost of past fears and shames, becoming more and more at odds not only with New Zealand today and with other legislation on the care of children, but also (as the United Nations and the Human Rights Commission have repeatedly pointed out) with the international conventions we have promised to uphold.

Two Member’s Bills
Frustration over the lack of reform has now led two MPs to put forward their own Bills. The Labour MP Jacinda Ardern’s Bill has been drawn. It focuses on the Law Commission drafting a comprehensive new Bill, which must then be “introduced to the House and set down for its first reading, making it immediately available for wider public debate and consultation”.
http://www.legislation.govt.nz/bill/member/2012/0062/latest/whole.html

This is an excellent idea, though it may be hard to put into practice. The whole field of adoption, including intercountry adoption and altruistic surrogacy, is one of the most complex and pitfall-ridden areas of family law. This makes it extremely difficult for individual MPs to devise a satisfactory Member’s Bill.

But Ardern’s Bill now looks unlikely to get a first reading. The Greens have opted not to vote for it, on the grounds that it will take too long to get new legislation, and any resulting Bill couldn’t be guaranteed to provide for adoption by gay and lesbian people. Green MP Kevin Hague has been quoted as saying that “the Greens had decided to introduce their own bill after being advised by officials Ms Ardern's bill couldn't be substantively changed as it moved through the parliamentary process.”
http://www.stuff.co.nz/national/politics/7815029/Gay-adoption-remains-in-focus-despite-bills-likely-failure

However, Labour MP Louisa Wall’s Bill would, by legalising gay marriage, bring gay married couples within the existing law’s definition of who is eligible to adopt; and has already passed its first reading.

Now Kevin Hague, working with National MP Nikki Kaye, has this week put a new Member’s Bill into the ballot, designed to incorporate reformed adoption law in the Care of Children Act.

http://www.greens.org.nz/sites/default/files/care_of_children_adoption_and_surrogacy_law_reform_amendment_bill_v_12_10_12.pdf

The heart of the matter: What adoption does
Under current law, adoption completely severs all legal ties between the child and every member of the birth parents’ families. This runs counter to all other legislation on the care and protection of children, and the Law Commission believed it should be changed.

“The way forward for adoption as a legal concept and institution is to reformulate the legal effect of adoption…adoption should be a transparent process for the permanent transfer of parental rights and responsibilities.”

It is not absolutely clear, but the proposed Bill seems to have quietly taken this on board. Gone are the drastic effects spelt out in section 16 of the current Act:

“the adopted child shall be deemed to cease to be the child of his existing parents…and the existing parents of the adopted child shall be deemed to cease to be his parents … the relationship to one another of all persons (whether the adopted child, the adoptive parent, the existing parents, or any other persons) shall be determined in accordance with the foregoing provisions of this subsection so far as they are applicable.”

Instead a final adoption order would mean simply that “the adoptive parent or parents become the child’s sole legal parent or parents (as the case may be) in place of the birth parents.”

At first glance, the new Bill appears to tackle most of the other areas covered by the Law Commission recommendations. Yet it’s not easy to see what overall guiding principles this new Bill is based on, because it contains some striking contradictions.

In some respects – a full and accurate birth and adoption certificate, who can adopt (no barriers of gender, sexuality, age or relationship status), heeding children’s views, and allowing adopted people to apply for a discharge of the adoption – it clearly makes the Law Commission’s guidelines a reality. In others, it falls well short or apparently misses the point, though these problems could on the whole be fixed fairly easily. But in one very important area, intercountry adoption, it goes completely against what the Law Commission recommended.

Of course this Bill may not be drawn. But looking closely at it now is useful, because it highlights some of the most important features any new legislation should have. Three significant areas are openness, informed consent and surrogacy.

Openness
For adoptions taking place after the law is changed, the Bill does provide the key requirement: an annotated birth certificate showing both birth and adoptive parents (though the drafting is unclear). This would be open to all adopted people of any age, as of right. But it looks as if birth parents (and other birth relatives, completely excluded at present) would have to apply to see it. There seems to be no requirement that they get a copy of this new certificate or the adoption order once the order is granted (though they may be present at the court hearing). The health information clause is unworkable and irrelevant.

There’s no longer any provision for counselling in connection with getting information and locating people. Taking away the current mandatory requirement for it (before you get the certificate) makes sense, but help should be available if needed – as the Law Commission recognised. This is highly sensitive, emotional territory, and the state is directly involved.

Informed consent
Thanks to the great work done with the health consumers’ bill of rights, we now understand far better exactly what informed consent means. The 1955 Act does not provide genuine informed consent for anyone involved in adoption.

The Bill appears to deal well with provisions enabling children to consent to their adoption, and have their own independent legal representation. Birth parents are supposed to have this too, but there’s no suggestion it should be state-funded, as the Law Commission recommended. It also recommended state-funded counselling pre and also post adoption

The minimum period for consent changes from 10 days after birth (one of the shortest in the world) to the 28 days recommended by the Law Commission. In contrast to the 1955 Act, the birth father is now included - both birth parents and any guardians must give their consent (except in certain circumstances).

But the Bill also repeats the archaic, patronising provision in the 1955 Act where the provisions for the birth parents are the same as those for the child: the solicitor states that he has told them what the adoption means and they have understood this, instead of requiring parents to state for themselves that they know and understand what they’re doing before they consent to their child being adopted. The same problem comes up with social workers stating they’ve done everything required for and with the birth parents, instead of the parents stating it.

Even more strangely, before they consent, the birth parents “may be permitted to request information about the identity of the prospective adoptive parent or parents”. Except in special circumstances they should be given this as of right, and the consent form should clearly identify the adopters. This would bring into law what is now the usual practice. Truthful birth certificates alone are not enough – especially as the Bill provides for adopted children or adults to obtain their annotated certificate as of right, but birth parents must, like everyone else involved, apply to the Court for permission to do so. This is not openness at all.

The Bill also requires a written parenting order (with no legal force) covering among other things the birth parents’ future involvement. But this is to be drawn up by the adoptive parents only. The birth parents aren’t mentioned.

Surrogacy
This is a significant issue for gay men who want their own genetically related child and may also want to adopt as couples. In the Human Assisted Reproductive Technology Act 2004 requires parental status to be transferred from the “surrogate” birth mother to the intending parent or parents through adoption.

Commercial surrogacy is not permitted in New Zealand. But the Bill allows children born through altruistic surrogacy overseas to be brought into New Zealand and adopted here. It provides for parents intending to use this provision to get prior clearance from a New Zealand Court, though exactly what will be approved in advance is not clear. The Bill even refers (at s.222(3)) to the possibility that an adoption order may have been granted “before the child’s birth”, which would be completely invalid in terms of adoption law generally.

Kevin Hague has stressed that the Bill can be altered between ballots until it’s drawn, and if it reaches a select committee it would come under expert scrutiny. In terms of what happens in New Zealand courts dealing with New Zealand adoptions, the Bill could probably be changed to match the Law Commission recommendations much more closely. But one major area presents really serious problems which can’t be fixed by minor changes.

Intercountry adoption
Today most of the children being adopted by New Zealanders come from other countries. In 2010/11, 206 adoptions were registered in New Zealand. Most of these involved family members (including step-parents) rather than unrelated adopters.

The other 238 adoptions had taken place overseas and were then recognised here. Only 43 of these involved countries where the human rights and best interests of children (as well as of birth and adoptive parents) are protected by the 1993 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Most of the others were Samoan adoptions of young people up to 14 years of age.

Known as the Hague Convention, it was drawn up to protect children, birth parents and adoptive parents from the abuses evident in the rapidly growing numbers of intercountry adoptions in the 1990s, particularly from countries (such as Rumania) where the combination of severe poverty, weak and corrupt state powers and high demand from first world couples was bound to result in exploitation and deception.

New Zealand has ratified the Convention and is bound to uphold it. As the Law Commission pointed out, rratification “entails a commitment to implement the principles of a convention in domestic law”. The Convention:

“establishes a series of safeguards to ensure that free and informed consent is sought from and given by natural parents and the child, that consent to an adoption is not induced by bribery, that the views of the child have been sought, that the adoptive parents have received such counseling as necessary and are suitable persons to adopt, and that the child’s heritage will be preserved.” (p.29)

But New Zealanders are still able to adopt children from non-Hague countries because of a loophole in the 1955 Act. Here’s how the Law Commission outlines it:

“Section 3 [in the 1955 Act] allows New Zealanders to adopt children from overseas using New Zealand adoption legislation, and in combination with section 17 could arguably allow New Zealand adopters to circumvent the provisions of the Hague Convention, as expressed in the Adoption (Intercountry) Act.

It also creates practical difficulties. Where the parties are not resident in New Zealand, they cannot be assessed appropriately, and post-placement services and monitoring cannot be provided. Such scenarios do not allow social workers to discharge their statutory obligation to report on the suitability of the applicant to adopt or the advisability of the adoption generally.” (p.114)

There may also be problems with recognition of such adoptions overseas. The Law Commission made a very clear recommendation on how to deal with this issue:

“We recommend that jurisdiction be limited to cases where:
• the child is habitually resident in New Zealand or coming to reside in New Zealand; and
• the applicants are New Zealand citizens or permanent residents who are resident, and have for three years been habitually resident, in New Zealand prior to the filing of the application to adopt.” (p.116)

The new Bill does incorporate the Hague-compliant provisions of the Adoption (Intercountry) Act 1997. But before that, it adds a new set of provisions, “Non Convention Intercountry and overseas adoption.” The first section says:

“196 Non-Convention Overseas adoptions

“(1) Where a person has been adopted (whether before or after the commencement of this Act) in any place outside New Zealand according to the law of that place, and the adoption is one to which this section applies, then, for the purposes of this Act and all other New Zealand statutes and laws, the adoption has the same effect as an adoption order validly made under this Act.”

Such adoptions need meet only minimal conditions, to do with the parental status of the adopters. The effect is also retrospective.

Other sections in the Bill reinforce this new provision. Together they amount to throwing opening the door for the unmonitored adoption of children from any non-Convention country, regardless of New Zealand’s obligations under the Convention. This is exactly the opposite of what the Law Commission recommended and the existing law on intercountry adoption seeks to achieve. It renders commitment to the Hague Convention elsewhere in the Bill virtually meaningless.

ENDS

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