Same-sex adoption and discrimination

- Susan O’Connor

The rights of lesbian, gay, bisexual and transgender New Zealanders have been the centre of considerable attention in recent months. With marriage equality passed into law on 17 April 2013, 77 votes to 44, the Marriage (Definition of Marriage) Amendment Bill 2012 (the Bill) looks set to become law in the near future. This is not to say that the Bill has not been met with significant opposition, and even outrage, since it was introduced. Although the primary focus of the Bill can be found in cl 5, redefining marriage as “the union of 2 people, regardless of their sex, sexual orientation, or gender identity”, it will, as a consequence, amend other pieces of legislation. Among these is the Adoption Act 1955. Read a selection of public submissions on the Bill and it quickly becomes clear many opponents are concerned that the redefinition of ‘marriage’ will allow same-sex couples to adopt jointly.

Same-sex adoption has recently been the focus of the European Court of Human Rights. In X v Austria[1] (Austria), the applicants alleged that allowing unmarried heterosexual couples to adopt while denying same-sex couples this right amounted to discrimination. The first and third applicants were two women in a stable relationship; the second applicant was the son of the third applicant who lived with his mother and her partner for around 13 years (at the time of the judgment). The first applicant wanted to adopt the second applicant in order to create a legal relationship between them, without severing the legal relationship between the boy and his mother.[2]

Under the Austrian Civil Code, this was not possible and their application to adopt was dismissed in the domestic courts. Only individuals or married couples may adopt (art 179). This rule is subject to an exception however: Article 182 § 2 allows for second-parent adoption by heterosexual couples, but not by same-sex couples. Based on this exception the applicants applied to the European Human Rights Court for relief. They argued, with reference to arts 8 (the right to family life) and 14 (the prohibition on discrimination) of the European Convention on Human Rights (ECHR), that art 182 § 2 presents an unjustified distinction between same- and different-sex couples.[3]

In reaching its decision, the Court confirmed that differential treatment under art 14 of the ECHR is lawful if that treatment has a legitimate aim and is reasonably justifiable.[4] The Austrian Government argued, and the domestic courts agreed, that protecting the traditional, biological family unit is a legitimate legislative aim and so denying same-sex couples the ability to adopt is reasonably justifiable.[5] However, the Court pointed out that as the ECHR is a living instrument, the rights it protects develop alongside societal changes. The Court criticised the Austrian adoption law position, stating the “legislation lacks coherence” as same-sex partners may adopt as individuals but not as a family.[6] By finding that ‘family life’ is no longer limited to the traditional, biological family unit,[7] the Court held the discrimination found in art 182 § 2 “is incompatible with the Convention. Article 14 taken in conjunction with art 8 is violated as a heterosexual unmarried partner is able to adopt their partner’s child but a same-sex partner may not.

New Zealand adoption laws are similar to those in Austria. Parliament has resisted calls to update legislation, despite calls for reform from many quarters.[8] Section 3 of the Adoption Act 1955 (the Act) provides for adoption by one person or by “2 spouses jointly”.  ‘Spouse’ is not defined by the Act, but it is traditionally understood to mean ‘husband’ or ‘wife’. However the New Zealand courts have extended ‘spouse’ to include de facto heterosexual couples in the case of Re application of AMM and KJO to adopt a child (Re AMM and KJO)).[9] This extension was possible through the New Zealand Bill of Rights Act 1990 (NZBORA): although Parliament may limit rights and freedoms under s 4, a legislative interpretation that is consistent with NZBORA is to be preferred.[10]  Interpreting ‘spouse’ as including de facto partners is more consistent with the right to freedom from discrimination, (s 21 of the Human Rights Act 1993 (HRA)) than the traditional view.[11] It is also consistent with the intent and purpose of the Act (as required by s 5(1) of the Interpretation Act 1999). The judgment points out that, in this case, the Attorney-General had taken the unusual step of agreeing that the Act discriminates against de facto couples “without logic or justification”,[12] but did not comment on the Act’s discriminatory effect on same-sex couples.[13]

Justices Wild and Simon France acknowledged that although Re AMM and KJO did not concern itself with whether same-sex or civil union couples could adopt, this decision could “open the door for those in other forms of relationship to apply” to adopt.[14] However, obiter in Re AMM and KJO notes that there are formidable barriers to a successful adoption application by a civil union couple. In 2005 Parliament rejected an amendment to the Act under the Relationships (Statutory References) Act 2005 which would have allowed civil union partners to adopt; additionally, heterosexual de facto partners in a stable relationship are directly comparable to a traditional married couple,[15] whereas same-sex and civil union partnerships are not. Notably, the dicta acknowledges that Re AMM and KJO eliminates only one instance of discrimination in the Act.[16]

The discriminatory nature of the Act becomes even more apparent when considering it in light of the Austria decision. Although New Zealand cannot be party to the ECHR, the government ratified the International Covenant on Political and Civil Rights. Articles 17 and 26 provide rights parallel to those stated in arts 8 and 14 of the ECHR. Although language differences do exist, the substantive rights remain the same. Given the parallels between the facts in Austria and the New Zealand position on same-sex adoption, the Government faces potential complaints being laid before the Human Rights Commission on the basis of unjustified discrimination.

Victoria University of Wellington Professor Bill Atkins writes that “same-sex parenting has become a fact of life”.[17] Atkins points out that the obiter regarding same-sex adoption in Re AMM and KJO is anomalous. It is a matter of logic to extend ‘spouse’ to include civil union partnerships, regardless of sex. Presumably the level of commitment and stability present when entering a civil union is the same when entering a marriage or de facto relationship.[18]  Surely, he argues, a civil union, regardless of the sexual orientation, is akin to a marriage or de facto relationship, and falls within the traditional family unit concept. As the European Court of Human Rights pointed out in X v Austria, the notion of a biologically traditional family unit does not justify treating a same-sex couple differently in light of modern societal developments.[19]

Louisa Wall, author of the Marriage (Definition of Marriage) Amendment Bill 2012 (39-2), points out that the reality of same-sex parenting is here to stay.[20] In New Zealand, as in Austria, a homosexual person may adopt a child as a single parent.[21] This means that children of same-sex couples often have only one legal parent – the other ‘parent’ must be satisfied with guardianship status – but live in a same-sex family. The law in New Zealand, as in Austria, lacks coherence.

Acting Principal Family Court Judge von Dadelszen calls it as he sees it: “The Adoption Act is outdated and it has become unjustly discriminatory.”[22]  When the Act was enacted, homosexuality was a crime under the Crimes Act 1908, s 158); society has moved on from this but the adoption laws have not.[23] Currently the Act breaches NZBORA, HRA and the United Nations Convention on the Rights of the Child in eleven ways,[24] including the prohibition of discrimination on the grounds of both sexual orientation (HRA, s 21(m)) and marital status (HRA, s21b).

Acting Principal Judge von Dadelszen goes on to comment that the Act has been developed judicially over the years. The paramount consideration in adoption applications is now whether the adoption is in the best interests of the child.[25] This welfare principle is present in other legislation (see, for example, the Care of Children Act 2004, s 4(1)), but is not provided for in the outdated Act. The principle focuses on whether the parents can provide a loving and stable environment for a child; were it not for the requirements of the Act, it is unlikely the sexuality of the parents would factor into this analysis.[26]

The focus of the Marriage (Definition of Marriage) Amendment Bill 2012 (39-2) is redefining marriage. However, it has far reaching and important consequential effects, not least of which will be the impact on the Adoption Act 1955 and the redefinition of spouse. Despite its divisive nature, the Bill has highlighted (once again) that society is an evolving institution, and the Government must react to these developments or fail in both its domestic and international human rights obligations. The 1950s nuclear family is not the family of 2013. It is time for the Adoption Act 1955 to be updated.