Outdated adoption law set for change

After decades of campaigning from advocates, and multiple recommendations from the Law Commission, UNICEF and the Human Rights Commission, NZ’s adoption act is finally going to be repealed. But will it address the rights and needs of those whose lives it has affected – and are we at risk of repeating the same mistakes?

The government has this week told adoption reform campaigners it intends to overhaul the 1955 Adoption Act - a long awaited action over a law widely accepted to be outdated and unfit for purpose.

The law was created when unwed mothers were seen as shameful - their newborn babies often forcibly removed and placed with strangers, mostly married P?keh? couples.

In a letter sent this week to adoption law reform advocate and author Barbara Sumner, Justice Minister Kris Faafoi says the Government will take up the issue this parliamentary term.

It had already indicated the prospect of adoption law reform in its release of Briefings to Incoming Ministers (BIM) late last year, but this has only now been confirmed.

It is a long time coming for those advocating for change, who for decades have been petitioning successive governments to scrap the law, which contravenes multiple articles in the UN rights of the child, to which New Zealand is a signatory.

These include the right to your birth name, nationality and your natural family, which would mean removing the cloak of secrecy around adoption.

Sumner says: “The on-going secrecy provisions of the Adoption Act 1955 are in direct contravention to UNCROC, so I am delighted we are finally going to see an end to this archaic legislation.

“Adoption takes away your ability to function fully as a citizen. In New Zealand we should be accorded equal rights no matter our birth status. We have no rights to our medical and genealogical history, we are removed from our family tree. Adoption is the only piece of contractual law in New Zealand to which the object and subject has no right to alter it or consent to it.

“I’m currently grappling with a genetically acquired health issue that I have no legal right to find out about. It’s not about good or bad adoption or good or bad adopters, it’s about the fact every adopted person lives with a different level of citizenship to biologically-connected people - even if you’ve had a great adoption the fact remains you are not equal under the law.”

Barbara Sumner

Sumner was one of a handful of stakeholders who pushed for a select committee hearing into the practice of forced adoption and its legacy, which was finally held last year. The committee heard from Sumner, who was forcibly adopted as a newborn, and two women whose babies were taken from them at birth.

They shared their experiences of the practice and gave impassioned evidence into the ways in which both mothers and children were treated in a widely practised phenomenon that saw around 90,000 babies taken from their birth mothers and given to strangers from the 1950s to the 1980s.

The select committee report found adoption is legally facilitated through a “clean break protocol”. (There is no legal open adoption in NZ.)

From the report: “We heard that associated practices included removing babies from their mothers directly after delivery, mothers receiving little support and no legal representation, and heavily medicating mothers during and after birth. It was deemed best that adopted children should grow up as if they had been born to their adoptive parents, so records of their natural births [are] concealed, new birth certificates produced, and mothers were prevented from contacting their children.”

Adoption numbers have decreased dramatically in New Zealand from a peak of 4000 a year in 1971 to fewer than 100 each year currently, mostly due to access to contraception and financial support for mothers. But Sumner says adoption law reform is needed to enable those who were adopted and are now adults to access their complete records and have the same legal status as biologically-connected people.

The committee responded with two vague recommendations: that the Government consider the concerns that exist about the practice of forced adoption in New Zealand from the 1950s to the 1980s, and the actions it could take in response to these concerns.

Two areas of work

In his letter to Sumner, Faafoi says the Government has formally responded to the select committee’s recommendations and will be addressing them in two ways: first through the current Royal Commission of Inquiry into Abuse in State Care, and secondly through substantive changes to the law.

Faafoi says he supports the replacement of current laws with legislation that “reflects the attitudes and values of modern New Zealand.”

“I also agree that there is a need to ensure our adoption laws meet our human rights obligations, particularly those relating to the rights of the children.”

The government response to the select committee recommendations says adoption law reform will be guided by objectives that include child-centred legislation, including the right to identity and access to information, to ensure they meet Te Tiriti o Waitangi obligations and to provide support to those who require it throughout the adoption process.

But Sumner and another adoption reform advocate Gillian Moynihan are worried about one of the objectives in particular, which aims to “simplify and improve the timelines, cost and efficiency of adoption processes where a child is born by surrogacy, whilst ensuring the rights and interests of the child are upheld.”

Moynihan says: “It seems to me there is a possible conflict in this statement – making it easier to commission a child yet upholding the rights of the child, the two of them don’t marry up. They (the government) will need to consult with those affected first and foremost and not go firing off in one direction until they have all the facts.”

Anonymous gamete (sperm and/or eggs) donation has been illegal in NZ since 2005, however commissioning couples and individuals have found ways of circumventing this law by acquiring gametes and commissioning surrogates overseas, then adopting the newborn and bringing them back to New Zealand.

Sumner and Moynihan say the Government should be wary of attempts to make it easier to commission the creation of children using anonymous donors – enshrining further generations to a newer, more technologically focused form of adoption and “identity theft”.

“I am concerned the process is open to being hijacked by the special interests of those who commission children using a variety of reproductive technologies. These new forms of family-making appear to ignore the history of closed adoption, the impact of falsifying birth documents and of hiding biological truths,” says Sumner.

“Adoption tells a paternalistic, social and moral story of fresh starts for children deemed in need of saving from their origins. In anonymous gamete donation, even as commissioning parents select donor profiles for traits to match their own, it tells a story of the inconsequence of biology for the person created.

“If we are to allow this to influence new legislation, we will be creating a new group of citizens being legally denied the legitimacy of biological history, ancestors and genealogy.”

Why has it taken so long?

Commentators and campaigners have shown continued confusion as to why no government has been willing to address adoption law reform until now.

One clue as to why the previous coalition government stalled any movement on the issue can be found in the government response to the select committee, in which the authors describe how a report from the social services committee on a 2016 petition demanding an inquiry into forced adoptions in New Zealand rejected the need for an inquiry.

“The report did not recommend an inquiry however the Labour Party and Green Party minority views supported a review into forced adoptions.”

Tellingly, it does not mention NZ First’s position, however then-Justice Minister Andrew Little alluded in media interviews at the time to their coalition partner being the reason progress on the matter was stalled.

The Government will also not start a separate “full and broad” inquiry into the practice, as petitioned for by Sumner and others.

Instead, Faafoi has encouraged submitters to share their experiences through the inquiry into abuse in state care, whose terms of reference include adoption placements.

Both Sumner and Moynihan share their experiences at the inquiry.

“The Royal Commission is the stepping stone and the government needs to listen at the end and act accordingly. In my view the law should be dismantled and abolished. It was the crime of the 20th century to separate mothers and babies under duress. Those mothers were treated like criminals and the pain has been passed on,” says Moynihan, who was forcibly adopted as a baby.

Sumner is keen to see New Zealand follow the likes of Australia in issuing a fulsome apology to the adopted community and mothers of loss.

“I hope we do see an apology detailing and acknowledging all aspects of forced adoption and that adopted people will have the right to be legally reinstated to their genetic family tree, and resume their original identity if they choose to.”

And she hopes that any new legislation is drafted in accordance with national and international human rights and standards, and creates a form of enduring guardianship that avoids the model of adoption that separates a person from their heritage.