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Adoption and surrogacy law reform questions and answers

Kevin Hague MP
Kevin Hague MP
kevin [dot] hague [at] parliament [dot] govt [dot] nz (Email)

Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill

1. What changes will be made to adoption by this Bill?

  • The best interests of the child will become the central consideration in decision making.
  • Applicants who wish to adopt will no longer face automatic ineligibility on grounds of age, sexuality, gender or relationship status. This ensures that the widest possible pool of parents could have the opportunity to care for a child.
  • A process will be set that enables social workers and the Family Court to determine whether an individual or couple would be the best parents for a child.
  • All adoptions will be made open, unless in exceptional circumstances specific criteria are met that demonstrate a need for a severing of the links with biological parents.
  • Requirements will be set for a parent, or parents, to follow when entering into an altruistic surrogacy arrangement, and when seeking to have that child legally recognised as being a part of their family.
  • Similarly, scenarios will be provided for where a parent or couple may adopt a child who is a product of an overseas altruistic surrogacy arrangement, through the New Zealand adoption process.
  • Arrangements providing for the care of children in New Zealand will finally be found in just one statute and the law will be unified.
  • Adoption legislation will be consistent with other family legislation so that parties to an adoption benefit from the same protections as those involved in proceedings under more modern legislation.

2. Why is there a need to reform the law?

Adoption law as it stands in New Zealand does not reflect the attitudes and current practices of adoption.

In the 1950s, when the current adoption law was made, New Zealand society was very different and encouraged single mothers to give their child up for adoption in keeping with the prevailing views of the day about what a family was and what was best for children. Closed adoptions were highly favoured so that there was no connection between the child and their birth parents, in order to serve the purpose of blanketing the stigma associated with both illegitimacy and infertility.

Under closed adoption, once a child is adopted, the birth record is sealed and new birth certificate is issued, naming the adoptive parents as the only parents of the child. This has been widely criticised as creating a legal fiction by obscuring the factual history of the child's life.

Our attitudes towards, and practices of, adoption in New Zealand are quite different today. There are a wider range of options available for the care of children and a greater focus on the role of the birth parents and extended family in providing care for a child. It is now the norm for open adoption arrangements to be agreed to, with a focus on the best interests and on-going welfare of the child. Yet such arrangements have to be made essentially outside the framework of the current law. There are also changes in fertility treatments, including practices such as surrogacy, which have impacts for adoption law.

Included in this attitude change is the idea that the law should no longer discriminate as to who can adopt children and should instead ensure that the widest possible pool of eligible and suitable prospective parents is available. For instance, unmarried couples, including gay and lesbian couples, should no longer be discriminated against for adopting due to the nature of their relationship.

3. What is the history of adoption law reform?

Substantive law reforms to New Zealand's adoption laws have been initiated in 1979, 1987, 1988 and 1990.

The last Labour Government also discussed options for reform. In 1999, the Law Commission was asked to review New Zealand's adoption laws, publishing its September 2000 report Adoption and its Alternatives that recommended wide ranging reforms.

The recommendations in that report are the basis of this Amendment Bill.

4. What is the preferred option for reform?

The most comprehensive option is to repeal the Adoption Act 1955, and amend the Care of Children Act 2004 with provisions allowing for adoption and surrogacy arrangements.

The Law Commission's 2000 report originally proposed a Care of Children Act that incorporated adoption as a part of the legislation, but this was ultimately left out of the Care of Children Act 2004.

Incorporating adoption law into the Care of Children Act 2004 would serve to round out the original aims and intentions of the Care of Children legislation proposed by the Law Commission, and would ensure that the provisions of any adoption legislation were aligned with the aims and purposes of the present Act. It would also allow the Court to interpret the relevant provisions as a part of the broader Act.

5. Why not discriminate for certain types of partnerships or preferences in the law?

The Adoption Act 1955 was written from the perspective that the ideal situation for a child is:

a) To not be burdened with the stigma of being born illegitimately to a single mother who could ill support him or her; and

b) To have that child brought up in a family by a married mother and father, not having any connection to his or her birth family.

It is not possible to determine what an 'ideal situation' is for a child or a family. Societies change and so do families. In the case of the Adoption Act 1955, the drafting of legislation that focused so closely on an 'ideal situation' - that was a married mother and father - served to solidify the attitudes of the 1950's in legislation that remains in effect today. This created a variety of legal and social tensions which modern Courts and society struggle to reconcile with their own views of what is the best situation for a child.

Rather than propose, and require, what some may decide is the ideal parenting situation for children, this Amendment Bill provides a piece of legislation that is focused on the child's best interest, and a regulatory framework that can look at individual situations and provide the best outcome for individual children and their families.

6. Why should the law be changed to allow any individual to apply to adopt?

In keeping with the purpose of the Care of Children Act 2004, this Bill seeks to promote an adoption process that has at its heart the welfare and best interests of the child.

With this in mind, it is proposed that a key way of promoting the best interests of the child is to make available to each child the widest possible pool of potential parents. In doing so, each child may be paired with an adoptive parent or family that best suits their needs.

It is important to note that allowing any individual to apply to adopt does not necessarily mean that any individual will be able to adopt. The proposed legislation simply removes barriers that might prevent a child from having the opportunity to join a family that can best care for him or her.

7. What is the impact for couples that have surrogacy arrangements internationally?

The drafters of the Adoption Act 1955 could not have envisaged a time when children could be born to surrogate mothers using genetic material from other people.

This Bill seeks to provide for such arrangements, and to enable couples or individuals who engage in surrogacy arrangements internationally to adopt their child and raise him or her in New Zealand.

8. What would this amendment mean for people who gave up their children for adoption, adopted children, or were adopted themselves before the Bill is passed?

The same situation still applies for you if you are party to an adoption before these reforms are made. This Bill would not change in anyway your current relationships with your birth or adopted children or parents. The provisions of the Adult Adoption Information Act 1985, which sets out how information can be accessed, would still apply. This Bill sets out the process for new adoptions

9. Which ministerial portfolio does this cover?

It is assumed that this Bill would have an impact for the following ministerial portfolios:

  • the Attorney-General
  • Ministry of Foreign Affairs and Trade
  • Ministry of Health
  • Ministry of Justice
  • Ministry of Social Development
  • New Zealand Immigration Service

10. Why a Members' bill, not a Government bill?

The Government has indicated that this is not a legislative priority this term. The Members' bill ballot system provides an opportunity for MPs to progress important issues such as adoption reform.

11. What is the history of the cross party working group?

In 2010 I called for a cross party group and approach focused on adoption reform.

The rationale for this group was that adoption law reform in the past had stalled due to a number of challenging policy issues. It was envisaged that a cross party approach could be attempted to work through those issues.

We have worked with several legal academics and several people identified with an interest in adoption law reform. As there are a number of technical and sensitive issues in the Bill we will need to work across the House while the Bill is in the ballot to raise awareness and help build support for it.

12. Will you work with others to progress the Bill?

If the Bill is drawn from the ballot for debate in the House it will be subject to the full legislative process that includes consideration by a select committee and a full public consultation period. During this time it is expected that many different political parties, interest groups, and individuals will have much to contribute to the Bill and its development. For example, the provisions in the Bill relating to intercountry adoptions from countries that are not party to the Hague Convention are very likely to be changed while the Bill sits in the ballot.

13. What is the current process for adopting in New Zealand?

There are several stages to the current adoption process in New Zealand

  1. Prospective adoptive parents first make contact with the Adoption Services team at Child, Youth and Family, and are prompted to attend a group information meeting. These meetings provide an overview of the adoption process, and are a chance for prospective adoptive parents to ask specific questions.
  2. Following this, those who wish to adopt complete an application form that provides basic information about the prospective adoptive parent or parents, lists a number of referees in support of the application, gives permission for a doctor to provide medical information, and gives permission for Child, Youth and Family to conduct a police check.
  3. Following this, applicants attend a Child, Youth and Family education and preparation programme. Applicants receive further information about adoption, and have further opportunities to ask questions. Applicants are also assigned a social worker to work with them.
  4. During and after the education and preparation programme the social workers conduct a number of interviews with the applicant. This enables Child, Youth and Family to gather more information about an applicant's home life and background.
  5. Once the assessment is completed the applicants produce a profile for birth parents to consider. Birth parents use this profile to make a decision about who they would like to adopt their child.
  6. An applicant is generally informed that they have been selected to adopt a child after the birth of that child. In some cases they are informed beforehand.
  7. Following the birth of the child, the applicants meet the birth parents. This gives both parties an opportunity to decide whether to proceed with the adoption, and what kind of on-going relationship both parties would like to have with each other. At this point consent forms and legal processes are initiated.
  8. After a minimum of 10 days following the birth of the child, the birth parents can sign legal consent firms. Once these consent forms are signed, the adoptive parents assume full legal rights and responsibilities of the child. Adoptive parents are required to engage a lawyer, and are responsible for the legal fees of the birth parents. At this point the child is placed in the adoptive parents care. Approximately six months later the Court issues an Interim Order, followed by a final order six months after that. At this point the child's name on its birth certificate may be changed.

14. What is current New Zealand law regarding surrogacy?

Under New Zealand law, when a child is born as a result of a surrogacy arrangement, the birth mother is the child's legal mother. The other legal parent is established based on how the pregnancy occurred. If the child was conceived through an assisted human reproduction procedure, the surrogate mother's partner will be the other parent. If the surrogate mother has no partner, then she alone is the child's parent. This position applies in all assisted human reproductive procedures, no matter whose genetic material is used, or who the genetic mother is.

In either of the two scenarios, an adoption order is necessary in order for the commissioning couple to become the child's legal parents. It should also be noted that the law as stated above applies to all "assisted" surrogacies, not just those performed through a clinic.

The law is different where the surrogacy is the result of ordinary sexual intercourse. In this case, the birth mother is the legal mother, and the man who had intercourse with her is the legal father. The commissioning couple still need to have an adoption order granted to become the legal parents.

Under New Zealand law, commercial surrogacy is unlawful.

15. What types of adoption take place in New Zealand?

Below is a summary of adoption statistics in New Zealand between the periods of 1955 - 1990, and 1994/5 - 2007/8:

Adoptions with no family link:

  • 1955 - 1990: 9854 or 281 per year
  • 1994/5 - 2007/8: 1454 or 103 per year

Adoptions involving one parent and one spouse:

  • 1955 - 1990: 4498 or 128.5 per year
  • 1994/5 - 2007/8: 1571 or 112 per year

Adoptions involving family relatives (prior to 1990 included close friends):

  • 1955 - 1990: 1942 or 55 per year
  • 1994/5 - 2007/8: 1425 or 101 per year

Adoptions involving children in New Zealand courts (including foreign children):

  • 1994/5 - 2007/8: 6139 or 438.5 per year

Adoptions involving foreign children in overseas courts:

  • 1994/5 - 2007/8: 4846 or 346 per year

Closed v open adoptions:

  • Information on the number of adoptions that were closed or open are not available, as these arrangements are agreed by the parties to each adoption.

Surrogacy arrangements:

  • Data on surrogacy arrangements is currently being collected, with reliable figures based on surrogacy cases Child, Youth and Family was involved in expected to become available next year.
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