NSW recommends same sex adoption
There has been a recommendation for NSW to allow same sex adoption, according to a parliamentary committee. The Legislative Council standing committee on law and justice said that the Adoption Act 2000 should be amended:
to allow same-sex couples to adopt, but that an exemption from the application of the Anti-Discrimination Act 1977 be created for faith-based adoption agencies. The Committee has concluded that reform to allow same-sex couples to adopt in NSW will protect children’s rights and help to ensure children’s best interests. It will do so by providing the security of legal recognition for existing parent-child relationships, by broadening the pool of potential applicants from which the most appropriate parents for any individual child are selected, and by enabling children currently fostered by same-sex couples to have that relationship permanently secured where appropriate. Such reform will also address discrimination against same-sex couples and their children, and address anomalous inconsistencies in their present treatment under the law.
Nevertheless a minority considered that only heterosexual couples should be able to adopt:
Some members of the Committee consider that the best interests of children are met in the context of a family comprised of a mother and a father in a permanent, preferably married relationship, where the child can experience on a daily basis the fundamental complementarity of motherhood and fatherhood.
These members believe that mothers and fathers bring unique qualities to their parenting roles, both of
which are essential to optimal child development. These members further consider that the state has a
duty of care to ensure that children are adopted into families that will provide ‘optimal care’, and that
same-sex parenting denies children such care, to their detriment in the short and longer term.
Correspondingly, these members consider that the Government has a responsibility to adoptive
children and to broader society to prevent adoption by same-sex couples.
The majority of members, however, consider that the gender of parents is not a significant determinant
of children’s wellbeing, and that as such, the sexual orientation of prospective parents is of no material
relevance to the best interests of adoptive children. Nor do the majority consider that the sexuality of
gay and lesbian people precludes them from being fit and proper parents, or that children in same-sex
families necessarily have insufficient access to both male and female role models. The majority of
Committee members are persuaded by the argument that an adoptive child’s best interests are
determined in the context of an assessment of the individual child’s needs and the individual
prospective parents’ capacity to meet those needs. The majority of Committee members believe that
same-sex parents should be able to be assessed on exactly the same basis as other prospective parents.
The majority note that if legally eligible to adopt, gay and lesbian people will, like all prospective
parents, be subject to a rigorous assessment process by accredited adoption agencies to determine their
suitability to adopt; they will also be subject to the preferences of relinquishing parents; and they must
ultimately satisfy a court that they can fulfil the best interests of the child concerned. The majority of
Committee members are confident in the rigour of the adoption system to continue to ensure that only
those who would make fit and proper parents go on to adopt.
In addition, the majority of members are persuaded by a number of other arguments that the best
interests of the child will be served by reform to allow adoption by same-sex couples. It is highly
desirable to broaden the pool of adoptive parents in order to increase the likelihood of the best match
between individual child and prospective parent. Also, the permanency that is so desirable for many
children in out-of-home care would be facilitated by enabling same-sex couples to adopt their foster
children.
Other States and Territories
The Committee examined the law on adoptions in other Australian States and Territories:
Adoption by same-sex couples in other Australian jurisdictions
2.56 Same-sex couples in the Australian Capital Territory (ACT) and Western Australia (WA) have
equal access to adoption with heterosexual couples. In Tasmania same-sex couples are
permitted to adopt a child who is related to a member of the couple. In all other states and
territories there is no provision for same-sex couples to adopt. In every jurisdiction same-sex
couples and individuals are permitted to provide foster care.
Australian Capital Territory
2.57 In the ACT, same-sex couples have had equal access with heterosexual couples to adoption
since 2004. The Adoption Act 1993 was changed by amendment under the Parentage Act 2004 to
replace gender specific terms such as ‘heterosexual relationship’ and ‘a man and woman’ with
the gender neutral terms of ‘domestic partnership’ and ‘2 people’ respectively.
2.58 The Adoption Act 1993 allows for adoption by two people jointly ‘who, whether married or
not, have lived together in a domestic partnership for a period of not less than three years’.
The Parentage Act 2004 amendments included the definition of a ‘domestic partnership’ as ‘the
relationship between 2 people, whether of a different or the same-sex, living together as a
couple on a genuine domestic basis’, as defined in the Legislation Act 2001.
2.59 In addition, the Parentage Act 2004 recognises the same-sex partner of a woman who has
undergone a fertilisation procedure as the parent of her partner’s child:
If the woman undergoes the procedure with the consent of her domestic partner at
the time of the procedure, the domestic partner is conclusively presumed to be a
parent of any child born as a result of the pregnancy.
Western Australia
2.60 In WA a couple may apply to adopt a child if they are married or in a de facto relationship.
In 2002, the Adoption Act 1994 was amended to remove specific references to heterosexual
couples.This amendment effectively removed the limitation on same-sex couples to apply
for adoption.
2.61 As is the case in NSW and the ACT, WA also recognises the non-biological partner of a
lesbian couple as the parent of any child that is born as a result of a fertilisation procedure, if
the partner’s consent is given at the time of the procedure. This was achieved through the Acts
Amendment (Lesbian and Gay Law Reform) Act 2002.
Tasmania
2.62 In Tasmania the Adoption Act 1988 was, from January 2004, amended to remove genderspecific
terms that had previously precluded same-sex couples from applying to adopt. Under
the Act, couples may adopt if they are married or parties to a ‘significant relationship’. A
significant relationship includes heterosexual and same-sex couples in a de facto relationship.
Couples in a significant relationship may only adopt a child if one member of the couple is a
relative or biological parent of that child.
2.63 Adoption orders can also be made in favour of one person in exceptional circumstances
which are not defined by the Act. However, that individual cannot be married or in a
significant relationship, thus preventing one member of a couple from adopting a child who is
not related to either member.
Northern Territory
2.64 In the Northern Territory (NT) people in same-sex relationships are effectively prevented
from applying to adopt as couples or as step-parents by the definition of ‘couple’ and ‘spouse’
contained in the Adoption of Children Act 1994.
2.65 In section 13, ‘Adoption by couple’, the Act specifically refers to a couple as a ‘man and
woman’. The Act also defines the term ‘couple’ as follows:
For the purposes of this Act, a reference to 2 persons or a couple in relation to a joint
adoption of a child under this Act is a reference to
(a) a man and a woman who are married; or
(b) an Aboriginal man and woman who are living together in a traditional
Aboriginal marriage.
2.66 In the category of step-parent adoption, the Act defines a step-parent as the ‘spouse’ of the
parent. The Act states:
“spouse” means a person who is married or who is living in a traditional Aboriginal
marriage in relation to the man or woman to whom he or she is married or with
whom he or she entered into the traditional Aboriginal marriage.
2.67 These definitions also effectively prevent heterosexual de facto couples from applying to
adopt.
2.68 The NT allows adoption by an individual only in exceptional circumstances. These
circumstances are not defined in the Act. However, an individual is specified in the Act as a
person who is not a relative of the child or spouse of the child’s parent, and the child must be
in the guardianship of the Minister.
Queensland
2.69 In Queensland the Adoption of Children Act 1964 prevents same-sex couples from applying to
adopt through the specific reference to joint adoption by a ‘husband and wife’. As is the
case in the NT, adoption orders can be made in favour of individuals only in exceptional
circumstances.
2.70 In April 2003, as part of Queensland’s reforms to remove discrimination against same-sex
couples, the Acts Interpretation Act 1954 was amended to include section 32DA, which defines
the term ‘de facto partner’ as follows:
In an Act, a reference to a de facto partner is a reference to either one of two persons
who are living together as a couple on a genuine domestic basis but who are not
married to each other or related by family.
2.71 The effect of this amendment did not, however, extend to adoption. In this regard, the Acts
Interpretation Act 1954 was amended so that any reference to the term ‘spouse’ in other Acts
included de facto partners, unless that legislation expressly states to the contrary, which is the
case for the Adoption of Children Act 1964.
2.72 After extensive community consultation the Queensland Government introduced into
Parliament on 10 February 2009 the Adoption Bill 2009. The bill, in its eligibility criteria,
explicitly excluded same-sex couples from adopting children. It is noted that the bill did not
pass into law as the Queensland Parliament prorogued on 23 February 2009.
South Australia
2.73 In South Australia same-sex couples are prevented from applying to adopt under both the
couple and step-parent categories.
2.74 The Adoption Act 1988 restricts joint adoption to people in a ‘marriage relationship’ and
defines a ‘marriage relationship’ as follows:
marriage relationship means the relationship between two persons cohabiting as husband
and wife or de facto husband and wife.
2.75 The Act provides for adoption by an individual person, but only under ‘special circumstances’,
which are not specified in the Act.
Victoria
2.76 In Victoria same-sex couples are prevented from applying for adoption as the Adoption Act
1984 specifically states that adoption may be made in favour of a ‘man and a woman’.
Furthermore, while couples in a de facto relationship are able to adopt, the definitions of ‘de
facto relationship’ and ‘de facto spouse’ specify a relationship that is between a man and a
woman.
2.77 Steps have been taken, however, to review the existing adoption laws in Victoria. The final
report of the Victorian Law Reform Commission (VLRC) on assisted reproductive technology
and adoption was tabled in Parliament in June 2007. The report contained the following
recommendations with regard to adoption:
67. The Adoption Act 1984 should be amended to allow the County Court to make
adoption orders in favour of same-sex couples.
68. The same-sex partner of the parent of a child should be able to apply to adopt the
child in accordance with the same criteria that apply to opposite-sex partners.
69. The Department of Human Services should review the Adoption and Permanent Care
Procedures Manual to accommodate applications by same-sex couples.
70. Adoption agency staff should receive training to provide education about
parenting by same-sex couples.
71. The Adoption Act 1984 should be amended to allow the County Court to make an
adoption order in favour of a single person in accordance with the same criteria that
apply to couples.2.78 In December 2008 the Relationships Act 2008 was passed to register and recognise the
relationships of committed adults who are not married. This legislation, however, did not
include any reforms to adoption legislation and, to date, no legislation or government action
has been taken to implement the VLRC’s recommendations.
Overseas
Overseas jurisdictions
2.79 Adoption by same-sex couples is currently legal in several overseas jurisdictions. Same-sex
couples have equal adoption rights with heterosexual couples in Andorra, Belgium, Guam,
Iceland, Israel, Norway, Spain, Sweden, South Africa and the United Kingdom. In the
Netherlands, adoption by same-sex couples is limited to Dutch children, and in Germany and
Denmark it is limited to step-parent adoptions. Adoption by same-sex couples is legal in
several provinces and territories of Canada and in several states in the United States of
America.
2.80 Adoption by same-sex couples is not permitted in the majority of countries around the world.
Arguments against same sex adoption:
- Parenting by a mother and a father:
A significant number of inquiry participants stated explicitly that they considered that
adoption by same-sex couples would not be in the best interests of children. Most but not all
of these participants based their views on religious teaching and belief, emphasising that the
presence of both a mother and a father, preferably in a married relationship, has a major
bearing on the best interests of children, both in the short and longer term. - The fundamental complementarity of men and women:
Some participants who advocated that the best interests of children in the short and long term
are served by the presence of a mother and father in a permanent, preferably married
relationship, went on to illuminate their position by referring to the ‘fundamental
complementarity’ between men and women embodied in motherhood and fatherhood. In
their view, this complementarity is by nature absent from same-sex relationships, to the
detriment of children. - Doctrine, natural law, self-evident truth and research
Several church-based organisations who participated in the inquiry advised that their views in this area are based on fundamental matters of Christian doctrine. In its submission the Catholic Archdiocese of Sydney placed Catholic teaching on marriage and the family within the context of broader social and moral instruction:
Catholic teaching on sexuality, marriage and family is part of a much larger body of
Catholic social and moral teaching, which includes respect for the dignity of the
human person and the need to care for all, especially the poorest and most vulnerable.
The Church’s teaching on sexuality and family must be understood in that wider
context. The genuine, committed and exclusive love between a man and a woman,
grounded in marriage, is the foundation of family life and promotes the optimum
welfare and development of children….
Several participants voiced concern about the fitness of gay and lesbian people to parent
children. For example, the NSW Council of Churches and Family Life International suggested
that heterosexual marriages are more likely to value fidelity and exclusivity than are
homosexual relationships. The Catholic Archdiocese of Sydney also expressed this view,
stating in its submission:
[W]hile same-sex couples have no monopoly on infidelity, the evidence reflects that
married heterosexuals better value and model sexual fidelity and exclusivity. It is
highly likely that higher rates of household infidelity would impact upon children.
Placing children in domestic situations where infidelity may be more likely to occur
threatens the stable, loving environment and appropriate role modelling which are
important for the healthy development of all children, especially vulnerable ones.121
3.33 The Australian Christian Lobby noted that the Adoption Act recognises the importance of
stable, committed parental relationships. It then pointed to evidence that homosexual couples
have, on average, shorter relationships, and suggested that commitment to monogamy is
‘much less a feature of same-sex relationships than of heterosexual relationships.’ Mr
Shelton stated:
[W]e know from research from the National Centre in HIV Social Research that 57
per cent of male homosexuals are highly promiscuous. That is hardly a stable
environment in which to place a child … Promiscuity is a bad thing for any child to
have to live with in an environment where that takes place … All I am saying is that
the research shows that male homosexual relationships are notoriously unstable, they
are not generally monogamous, and this is not in the best interests of children. We are
talking about legalising same-sex adoption. I think we need to think very carefully
about the type of environment and lifestyle that currently occurs in these communities
and whether that is an appropriate environment in which to place children,
particularly when there are other alternatives available.
3.34 In its submission the Fatherhood Foundation argued that ‘[t]o legislate for homosexual
adoption is to endanger our children physically, mentally, emotionally and spiritually’, based
on the suggestion that same-sex couples are characterised by higher levels of:
• drug use and partner violence
• communicable diseases and bad health
• decreased life expectancy and
• sexual exploitation of children.
4. The limited number of children available for adoption
A number of inquiry participants including the NSW Council of Churches and the Anglican
Church, Diocese of Sydney, argued that given the limited number of children presently
available for adoption, compared with the large number of heterosexual couples willing to
adopt, there is at present no evident need to change the legislation to broaden parental
eligibility.
5. A responsibility to maintain the status quo
A number of the witnesses and submissions that argued parenting by a mother and a father
rather than a same-sex couple is in a child’s best interests emphasised the importance of
upholding the heterosexual family unit as the building block of society. Mr Meney of the
Catholic Archdiocese suggested that to depart from this model was to experiment with
children and ignore the wisdom and reality of human history:
Every society before our own has privileged heterosexual marriage as the place for the
upbringing of children because this has been sought and found to be the best situation
for all concerned. To propose alternative models of family and parenting is to be
willing to experiment on children not for their own benefit, and to be willing to
dispense with the accumulated wisdom and experience of millennia.
Adoption decisions regardless of parental gender and sexuality
3.44 The second stream of views presented in evidence to the Committee was that the best
interests of the child would be served by making adoption decisions based on the individual
needs of the child and the capacities of the prospective adoptive parents, regardless of their
gender and sexuality. This argument rejected the idea that same-sex parenting is, per se, less
than ideal or harmful to children. Participants in this stream argued that it is ‘family
functioning’ rather than family form that has the major bearing on children’s wellbeing.
3.45 This view was encapsulated in the position of Barnardos, the third accredited non-government
adoption agency in NSW, which explicitly supported adoption by same-sex couples.
Barnardos currently facilitates adoption by gay and lesbian individuals as well as foster care by
same-sex couples and individuals, in line with current legislation. It refuted the assertion that
the best interests of a child are served by the presence of both male and female parents,
focusing instead on the parenting capacities of prospective parents without regard to sexuality:
When considering the “best interests of the child”, it is often argued that children
“need” or “do better with” a mother and father. This premise is not borne out by
research, with studies showing that children with same-sex parents do at least as well
as children raised in heterosexual families. The traditional definition of a “family” has
changed from “mother, father, child/ren” and now encompasses a wide variety of
family combinations, established in a variety of ways. The focus must not be on the
“absent” mother or father, rather it must be on the capacity of the “parent” to meet
the child’s needs.
3.46 Proponents for adoption by same-sex couples cited research evidence that children raised in
same-sex families are just as well off as those raised in heterosexual-headed families.
The Gay and Lesbian Rights Lobby of NSW participated:
Responding to the suggestion that the number of children available for adoption is very
limited, and that opening up eligibility to same-sex couples would disadvantage heterosexual
prospective parents, the GLRL made several points:
• Gay and lesbian individuals are already eligible to apply to be assessed for
adoption and as such are already present in ‘the pool’ of eligible persons.
• If same-sex couples become eligible to adopt, take up would be small as same-sex
couples only account for 0.7 per cent of all married and de facto couples in NSW.
• Even if eligible to adopt, same-sex couples will not have access to the intercountry
adoption system. As a result, the majority of unknown adoptions will continue to
only consist of married couples.
3.75 The GLRL’s submission went on to argue that to speak of a ‘queue’ to adopt is to imply that
adoption is a competition between adults, rather than a child-centred service:
Finally, and most significantly, we would suggest that it is contrary to the objects of
the Adoption Act to consider the issue of same-sex couple adoption as adding to a
“queue” for children. Such an argument removes the emphasis from adoption as
being a child-centred service into adoption as a service for adults competing amongst
each other to become parents. No adult has the right to adopt a child, and
relinquishing parents and their children deserve to be given the greatest diversity of
potential households from which to choose the right home for their child.
The desirability of permanency for children in foster care
3.77 One of Barnardos’ key arguments for adoption by same-sex couples being in the best interests
of the child was that the permanency afforded by adoption is desirable for many children in
the out-of-home care system. Ms Voigt told the Committee that Barnardos believed it was in
the best interests of the children in its foster care program who were being cared for by samesex
foster parents to be adopted by them. She went on to observe:
[T]here has been quite a lot of community concern that children in foster care are
available for adoption because for those children are often have a very in-between life
in that they do not belong properly to anyone. Many of them move repeatedly.
Adoption has been shown to be a much more secure option for children in the
welfare system.
Discrimination sends the wrong message
5.37 The final core argument put forward by proponents for the removal of discrimination against
same-sex couples in relation to adoption was that discrimination, codified in law, sends the
wrong message to society. According to the GLRL, it particularly sends the wrong message to
society about risks to children and devalues the contributions of gay and lesbian people:
Same-sex adoption involves removing prejudice from the lives of lesbians, gay men
and their children. The GLRL affirms the social reality that 20 per cent of lesbians and
up to 10 per cent of gay men are already parenting with potentially thousands more
lesbians and gay men in positions of responsibility for children and/or young people.
Discrimination in adoption laws sends the wrong message about risks to children,
fuels prejudices and stereotypes against lesbians and gay men, and diminishes the
significant contributions made by lesbian and gay people towards the development,
care and education of children and young people in NSW.
Foster care and adoption by same-sex couples
At the present time in NSW same-sex couples are permitted to provide
foster care. Several inquiry participants argued that it was inconsistent for the law to allow
same-sex couples to provide foster care but to exclude them from adoption. They also argued
that for various reasons this was not in the best interests of children concerned.
