'Way Out of Date', 'Discriminatory', and 'Not Fit for Purpose' – the Adoption Act 1955 Needs to be Reformed

By Daniel Meech

It’s been called “way out of date”, “discriminatory” and “not fit for purpose” by the Human Rights Commission’s chief legal officer. It’s been criticised by the Law Commission, the Law Society, the Children’s Commissioner, and UNICEF. In 2016, it was formally declared to be inconsistent with the New Zealand Bill of Rights.

So why hasn’t the Adoption Act 1955 been reformed yet?

The Act has a number of problems. It was written for a different era, and, as such, is riddled with anachronisms and peculiar rules in need of urgent overhaul. It discriminates on the grounds of sex, age, marital status, and disability, as held by the Human Rights Commission in Adoption Action Inc v Attorney-General. The Act also sets out an unnecessarily difficult adoption process. The most concerning, however, is the Act’s ability to alienate and estrange children from their biological parents through its ‘closed’ approach to adoption.

At the heart of these problems is the Act’s age. Written more than 65 years ago, it sports a number of antiquated rules which seem out-of-touch with modern society. Among other things, the Act:

·       Expressly forbids adoptions according to “Maori custom”

·       Prevents unmarried partners from adopting as a couple

·       Prevents men from adopting female children, if they apply as a sole parent

·       Allows children to be adopted without the consent of the father

·       Prevents anyone under the age of 25 from adopting, except under special circumstances

·       Says that biological parents suffering from any kind of mental disorder are unfit to parent. This means the adopting parents don’t need to obtain their consent

·       Allows children to be adopted without the consent of the child. In some situations, this can occur even when the child is over the age of 18.

Perhaps most egregiously of all, the act includes a section titled “Application to Maoris” (section 18). The section exists only to state that the act applies to “any person, whether a Maori or not”. That, more than anything else, speaks to the Act’s age and obsolescence.

But these problems – those which which reveal themselves on a first read – are only the tip of the iceberg. There are other, less obvious problems with the act.

The adoption process the act lays out is unnecessarily difficult and complex. It can take years to complete the process – even when both sets of parents agree to the adoption. It’s also prohibitively expensive. Christian Newman and Mark Edwards, a couple who documented their adoption journey on their blog, “Love From Your Dads”, say they spent $60,000 and two and a half years formally adopting a child born to a surrogate, even though the mother had consented to the adoption from the beginning.

Practice Advisor of Oranga Tamariki Adoption Services, Peter McGurk, believes the act is contributing to the decline in adoptions in New Zealand. According to McGurk, the country has been averaging 20 to 25 adoptions a year for the past few years. That’s 0.5 adoptions per 100,000 people – substantially lower than comparable countries, like Australia, where 1.24 children were adopted for every 100,000 Australians last year.

But the Act’s worst aspect – and the thing it is most often criticised for – is its ‘closed’ approach to adoptions.

The Act was written at a time when giving your child up for adoption was shameful, and the rules and processes it lays out reflect this reality. In giving their child up for adoption, biological parents lose all rights in relation to the child. They have no right to see their child. They have no right to visit their child. They have no right to access any information relating to that child.

To be fair to legislators, the adoption process is more open today than it was when the Act was first passed. Sections of the Adoption Act which actively prevented biological parents from seeing their children or accessing any information about them have been effectively repealed by new legislation. But the process is still far from perfect.

There are no legal protections or rights given to biological parents who wish to stay in contact with their children throughout the child’s life. Instead, biological parents have been forced to rely on informal agreements with the adoptive parents.

The law “doesn't actually allow for the types of adoptions which we do most of in New Zealand which is whānau adoptions or open adoption,” Krista Mortensen – a parent who had given her child up for adoption – told RNZ. “It is all very much secretive, closed adoption, give the baby to a family and never contact that child ever again.”

Unfortunately, while it seems clear that reform is needed,  there don’t appear to be any plans to make that happen. The sole source of hope seems to have come in the form of a 2019 tweet from Prime Minister Jacinda Ardern . The Act “needs fixing”, she wrote.

But the Act doesn’t need “fixing”. It needs fundamental reform. Minor adjustments aren’t enough to bring it up-to-speed. The problem doesn’t exist solely in individual sections of the legislation – it exists in the Act’s entire approach to adoptions. Attitudes towards adoptions have changed, but the Adoption Act 1955 hasn’t.

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