Tue Aug 8

'Nobody's child' – despite a compelling case for reform, NZ's adoption laws remain stuck in the past

Written by Annabel Ahuriri-Driscoll, Senior Lecturer Above the Bar, University of Canterbury

It seems clear that adoption law reform ^[1] won’t be a priority before the October general election. This will be bitterly disappointing for many New Zealanders.

Despite some significant progress, the Ministry of Justice has revised its timeline for delivering final proposals from the first half of this year to “in due course”. This means there is still no clear end in sight to what has already been a prolonged and frustrating process.

Most importantly, those touched by adoption – including extended families – continue to feel the enduring effects ^[2] of the antiquated and outmoded Adoption Act 1955 ^[3].

At the heart of the need for reform lies the “closed” form of adoption the law introduced. This has meant those adopted between 1955 and 1985 were prohibited from knowing their biological parents and family.

It wasn’t until the passing of the Adult Adoption Information Act ^[4] in 1985 that adopted people (aged 20 or above) gained the right to seek identifying information about their biological parents.

But this still didn’t alter the fact that, regardless of when they were born, the Adoption Act itself legally extinguishes the relationship between an adopted person and their biological parents.

More than 100,000 adoption orders have been made since 1955, with a resulting stigma and secrecy that extend well beyond the adopted person themselves. Biological and adoptive parents, grandparents, siblings, cousins, uncles, aunts, partners, children and grandchildren are all touched in some way.

Some estimates suggest upwards of two million ^[5] New Zealanders may have a direct link to adoption within their extended family. Law reform cannot come soon enough for many of them.

Legal fictions

Legal adoption emerged in Aotearoa in the 1880s as a response to the growing problem of children born out of wedlock. Closed adoption went a step further, attempting to legitimise the illegitimate child through a kind of legal fiction ^[6].

By pronouncing the adopted person “as if born to” their married adoptive parents, it was thought they would be spared moral and social condemnation.

In the process, however, it created a legal legacy that contravenes the right to one’s birth origins and identity, something now taken as a given and asserted in both the United Nations’ Convention for the Rights of the Child ^[7] and Declaration on the Rights of Indigenous Peoples ^[8].

These agreements assert the right to ongoing connections with biological parents and to cultural heritage. As a signatory, New Zealand is in breach of both due to its current adoption legislation.

It is widely agreed the Adoption Act is outdated – including by the Ministry of Justice. In 1985, legal academic Iain Johnston noted ^[10] that “the basic statutory concept was no longer appropriate for most situations”.

This included how Māori felt about the law. In 1988, the Puao-te-ata-tu (Daybreak) report ^[11] for the Department of Social Welfare (as it was then) stated that closed adoption “is a totally alien concept, contrary to the laws of nature in Māori eyes”.

And in 2000, the Law Commission found ^[12] the legal fiction of closed adoption was “a repugnant and unnecessary distortion of reality”.

A history of inaction

The current attempt at law reform is only one of several over the 68 years since the Adoption Act was first introduced. In the past 40 years there have been six formal reviews, two select committees, four cabinet committees and a draft bill.

There have also been several sponsored bills placed in the parliamentary ballot, a Human Rights claim, five reports to the UN Committee on the Rights of the Child promising to review the law, and no fewer than ten ministers have pledged their commitment to reform.

In the meantime, the courts have been creating or “patching” law to fill some of the gaps where the Adoption Act conflicts with modern rights – for example, ruling that de facto couples (including same-sex couples) can jointly adopt a child.

Social work practice has also become more open, enabling birth parents, adoptive parents and the adopted child to be known to each other. And other legislation has dealt with related issues.

Labour MP Tamati Coffey. Getty Images

The Care of Children Act 2004 ^[14], for example, modernised guardianship but overlooked adoption. Surrogacy is being addressed separately in Labour MP Tamati Coffey’s member’s bill, which the present government has adopted ^[15].

And because of the need for further consultation and discussion, the Māori customary practice of whāngai ^[16] has been removed from the scope of the current law reform proposals.

Taken together, these changes have reduced the all-encompassing impact once envisaged for adoption law reform.

The adoption paradox

There is also the simple fact that adoption law reform is only one of the Ministry of Justice’s many competing priorities, including efforts to reduce crime. Given this, the question must be asked whether the ministry is the right agency to lead adoption reform.

Ultimately, however, there is an unfortunate paradox at the centre of this issue. The emotional and polarising nature of adoption – as evidenced in the stories of those who have given children up, those who have adopted children, and those who have been adopted – is compelling, but also potentially politically unappetising.

Adoption reform pits the interests of some against others – typically, those who have been wronged by adoption, and those who want to adopt but fear reform will make the process even more difficult.

The risk of adverse public opinion or media attention may well act as a powerful political deterrent. As researcher Isla Mirren Doidge concluded ^[19] in 2016, the very thing that makes law reform so necessary – the hurt and loss of closed adoption – may actually work against it.

For all these reasons it is hard to say what might add impetus to the drive for reform – let alone how the process will fare under a new government after October 14.

What is certain, however, is that this is now an intergenerational issue. Current adoptee activists have picked up the mantle of previous reform lobbyists, and the impacts of this outdated law now extend to their children, and their children’s children.

Adoption law reform has been nobody’s child for too long now. Whichever parties form the next government, they will have the power to make a critical change for the better.