Gay adoption: redux

The High Court has just said that straight de facto couples jointly can adopt a child. Great - now what about the rest of the community?

Two posts in a day on matters legal may stretch the patience, but given this previous post of mine on adoption matters I feel the need to comment on the High Court's just released decision in the delightfully named case Re: A.M.M. and K.J.O. (Anyone interested in reading it for themselves can get a PDF copy from here.)

The issue for the Court was fairly straightforward, if potentially controversial. A man and a woman who had lived in a stable de facto relationship for 10 years wished to jointly adopt a son whom the woman had conceived using donor sperm. Without such joint adoption, the mother is legally his mother, while her partner only can ever be the boy's "guardian" - not his full, legally recognised father. However, the Adoption Act 1955 only permits the joint adoption of a child by "two spouses". So, do a de facto couple count as "spouses" for the purpose of this enactment?

As there's been some contradictory rulings on this issue at the Family Court level, this case provided a chance for the High Court to make a definitive ruling. The choice before it was pretty simple:

(1): say "'spouse' only means people who are married, and nothing else" (which clearly is what Parliament thought back in 1955, when the Adoption Act first was enacted);

(2): say "as it would be unjustifiably discriminatory to let married couples jointly adopt and not let this de facto couple do so, we will read 'spouse' as including couples like the present applicants".

It should be noted that (2) is open to the Court as an option because of the New Zealand Bill of Rights Act 1990, s.6; plus the fact that the Attorney-General expressly accepted that preventing the present applicants from adopting unjustifiably breaches their right to be free from discrimination. So the Crown didn't try to provide any reason as to why the applicants shouldn't be allowed jointly to adopt the boy - other than to say that as this is what Parliament has said, then Parliament's word on the matter should be the end of the story (even if this unjustifiably breaches someone's rights).

Against this background and as a matter of justice, you'd have to think that if the applicants' claim was the only one at issue, the outcome would have been a pretty straightforward win for them. What complicated the Court's choice, however, are the potential downstream consequences of its decision. For if it says the present applicants (a man and a woman in a long term, loving relationship that they've chosen not to define as a "marriage") should be seen as "spouses", then why shouldn't couples (same sex or otherwise) who have chosen a civil union rather than a marriage be seen as "spouses", or same-sex couples in long term, loving de facto relationships also be seen as "spouses"?

In other words, if this pebble is kicked off the cliff, will an avalanche of claims follow? And won't the Court then be open to allegations that it is making judgment calls that are properly the domain of Parliament? I mean - just who rules here ... elected politicians or judges?

In the end, the Court (perhaps somewhat bravely) stared that challenge down and went with option (2). But in doing so, it tailored its decision as narrowly as possible, noting that it is (in effect) only good for people who are just like the applicants.

So people who've chosen civil unions rather than marriages cannot be "spouses" under the Adoption Act, because Parliament explicitly decided they couldn't be at the time civil unions were created. Same sex couples in stable, long term de facto relationships might be "spouses" under the Adoption Act - but the Court also said they might not be. That's a question for another court on another day.

(Incidentally, if that day should ever come, it will be very interesting to see whether the Attorney-General makes the same express concession as in this case - or will the Crown try to argue that discriminating against same-sex prospective adoptive couples is not in breach of the NZBORA? If so, how and why are the cases different? I'd hate to be the poor crown counsel who has to run that particular argument before a bench!)

So - the upshot is a win for the applicants (and, dare one say it, common sense). But if anything, it makes even more of a mess of our ridiculously out of date adoption laws. Because at present, you may apply jointly to adopt a child if:

  • You are married under the Marriage Act 1955; or,
  • You are a man and a woman in a "stable and committed" de facto relationship.
However, you may not apply jointly to adopt a child if:
  • You are a man and a woman, or a same sex couple, who have entered a Civil Union under the Civil Union Act 2004.
And you may be able to apply jointly to adopt a child if:
  • You are a same sex couple in a "stable and committed" de facto relationship - depending on what a future court may say ... which may depend on whether the Crown tries to argue you shouldn't be permitted to adopt.
If anyone thinks this makes any sense - well, good on you and I hope your medication works more effectively in the future. For anyone else - and I'm looking at the Government here, and Paula Bennett in particular - may I draw your attention to the Law Commission's invaluable report from 2000 on how to fix this particular mess.
Finally - a quick word of congratulations to my friend and colleague at VUW Law School, Claudia Geiringer, who argued the case before the High Court. I suspect she is one of the few lawyers in the country who could have got this result - to say nothing of having the bench admit its judgment is "less elegant[ ] than her submissions". Well done.