Of marriage, same sex couples and adoption

Following the legalisation of same sex marriage, same sex couples will be able to jointly adopt their children. But which same sex couples?

One of the flow-on consequences of the same sex marriage bill shortly to become our law is that it will permit same sex couples to jointly adopt children. Some people think this is a bad thing. I strongly disagree. 

First, the best thing for a child is to be raised by two loving parents of any sexuality in a stable, nurturing relationship. That's not just my view, it's the view of the American Academy of Pediatrics:

A great deal of scientific research documents there is no cause-and-effect relationship between parents’ sexual orientation and children’s well-being, according to the AAP policy. In fact, many studies attest to the normal development of children of same-gender couples when the child is wanted, the parents have a commitment to shared parenting, and the parents have strong social and economic support.

So insofar as allowing same sex couples to jointly adopt a child helps to foster the optimal environment for raising that child, it is a good thing.

Second, a LGBT individual already may adopt a child under the Adoption Act 1955. Take the example of a lesbian woman who has a 6 month old nephew who is orphaned in a car crash, with that woman being named as the child's guardian in the child's parent's will. That woman already can apply to become the child's "parent" by way of a sole adoption order under s.3(1), and her sexuality will not be an issue in deciding whether or not such an order should be made.

Third, following on from the last point, this change will not result in perceptably more children being raised by same sex couples than is the case at the moment. (Not, to quote Jerry Seinfeld, that there is anything wrong with that.) Last year there were only around 50 "stranger adoptions" in all of New Zealand to married couples. There are far, far more couples (straight and same-sex) wanting to adopt than there are children put up for adoption. So even when married same sex couples are permitted to "stranger adopt", the number of children placed with a same sex couple will be vanishingly small.

Consequently, the true impact of the change wrought by the same sex marriage law is to open a route for same sex couples to jointly adopt a child under s.3(3). Because a married same sex couple will be "spouses" in terms of the Adoption Act (just as married straight couples are now), they can go to court together to seek an order that they both be recognised as the parents of a particular child.

This actually matters quite a lot (there's a concrete example of the problem recounted in this news item from 2009). At the moment, a same sex couple that have a child using either a surrogate mother or donor sperm are in an invidious position. The biological mother or father is recognised as the child's "parent" under the law. But the other partner is not - at most, they can be recognised as a "guardian" of the child, with inferior status and rights in law. If that other partner were then to apply to solely adopt the child (and so be recognised as the child's parent), this would have the effect of ending the biological parent's status as a "parent. Hence, a catch-22 exists for same sex couples: if you aren't the child's parent, the only way to become the child's parent is to make the child's other parent not the child's parent.

So what same sex couples who have had a child together need to be able to do is jointly adopt the child - have the law recognise them both as being the child's parent. However, a joint adoption application can only be made by "spouses". And because same sex couples could not marry, they were not able to become "spouses" in the traditional sense. Furthermore, in a decision from three years ago that I posted on here, the High Court said a couple of important things about the status of same sex couples under the Adoption Act:

  1. It indicated that any couple in a civil union (be they straight or same sex) most likely could not qualify as "spouses" under the Adoption Act;
  2. It specifically ducked the question as to whether a de facto same sex couple could qualify as "spouses" under the Adoption Act (whilst finding that straight de facto couples did qualify as such).

This then means that the law following the passage of the same sex marriage bill is going to be in a somewhat jumbled state. Here's how I read it:

Married couples, be they same sex or straight, will be able to jointly adopt children, as they are "spouses" in terms of the Adoption Act. De facto straight couples will be able to jointly adopt children, as in 2010 the High Court stretched the term "spouses" to apply to them in the decision mentioned above.

But what of the status of civilly unionised couples and same sex defacto couples? Here's what the High Court said about them back in 2010:

What of the consequences of embracing a wider definition [of the term "spouses"]? In our view it would have to be accepted that giving spouses a meaning beyond married couple would open the door for other types of couple to seek a similar extended meaning. Whilst the present decision applies only to de facto couples of the opposite sex, a barrier would nevertheless be broken. That does not mean, however, that the outcome of an application by other types of couple would necessarily be the same.

First, for reasons to be discussed more fully in the next section, we consider there are formidable barriers to a successful application by a civil union couple. In brief, as recently as 2005 Parliament rejected an amendment that would have allowed civil union couples (either of the same or opposite sex) to adopt. Second, in relation to the only other option, namely de facto same sex couples, it is apparent that there would not necessarily be the same concession of unjustified limitation from the Attorney-General as there is here. There may be, but not necessarily so. Further, without commenting on the validity of the arguments, it is apparent that different arguments would arise since such an application would represent a departure from the traditional family unit concept.

Clearly, that reasoning is rendered somewhat redundant in light of a subsequent decision by Parliament to let same sex couples marry (and thus jointly adopt). It would make no sense whatsoever to interpret Parliament as saying; "we're quite happy for same sex couples to marry (and thus jointly adopt), but not to enter into a civil union and jointly adopt." And the High Court didn't expressly say that civil union couples couldn't be "spouses" for the purpose of jointly adopting ... just that the argument would be a very hard one to mount (back in 2010) given Parliament's apparent intent when creating civil unions. But equally, they didn't expressly say that civil union couples are "spouses" under the Adoption Act, and they indicated they most probably aren't.

Similarly, the ability for the Crown to argue there is a justification for treating same sex and straight de facto couples differently when it comes to joint adoption applications disappears once Parliament has allowed same sex couples to marry (and thus jointly adopt). But, once again, the High Court has not specifically said that such couples are "spouses", and has indicated they may not be such.

So here's the problem for any Family Court judge who, in a post-same sex marriage era, gets presented with an application to jointly adopt a child by a couple in a civil union, or a same sex de facto couple. The logic of Parliament permitting same sex marriage indicates that this couple should be regarded as being "spouses" under the Adoption Act. But the guidance from the High Court - the superior body in the judicial chain of heirarchy - is that they may very well not be "spouses" for that purpose. So do you treat that guidance as being out of date and allow the application even though the High Court indicated its doubts, or do you feel bound by the guidance and say it is up to the High Court to revisit the issue in light of Parliament's new action? 

You might think that the neatest solution here would be for Parliament to clear the matter up by making it clear that, once same sex couples can marry and jointly adopt, civil union and same sex de facto couples can do so as well. But the problem with this lies in the Standing Orders of the House, specifically the "one subject area" rule:

257 Bills to relate to one subject area

(1) Except as otherwise permitted by the Standing Orders, a bill must relate to one subject area only.

(2) A bill may make consequential amendments to a number of Acts affected by its provisions.

This rule prevents the Marriage (Definition of Marriage) Amendment Bill being used as a vehicle to make a wider change in the law relating to adoption generally. So, you can update the Adoption Act to take account of the immediate changes that will occur when same sex couples can marry. But you can't use the bill to permit individuals in relationships other than marriage (which is the subject area of the bill) to be able to jointly adopt.

All this means that unless and until Parliament passes some stand-alone piece of legislation to amend the Adoption Act - something it probably should do anyway, given the wider problems with it - there is going to be uncertainty over how it applies in a post-same sex marriage era. At least, uncertainty until someone incurs the time, effort and expense of taking the matter to court in the hope that they can convince a judge to follow Parliament's lead and go where the High Court would not in 2010. 

But here's the kicker to the tale. There are quite a lot of same sex couples in New Zealand who have had children by way of surrogates or donors. At the moment, the law regards these families as consisting of a parent, a guardian and one or more children ... while in reality they consist of two parents and their kid(s). So the easiest, most simple and least risky way to make the legal status of these families match their reality is for that same sex couple to marry (even if already in a civil union) and apply jointly to adopt their children ... an application that will almost automatically be granted. 

As such, I think same sex marriage is going to be a somewhat more popular option than some may think. In fact, there's good reason to believe that for a same sex couple wanting to have children together, it will be a more popular option than for straight couples. So wouldn't it be funny if the people with the most incentive to marry actually turn out to be ... the LGBT community?