In NSW, the Adoption Act currently uses an archaic heterosexual definition of “de facto”, “spouse” and “partner” to preclude same-sex couples eligibility to be considered to adopt. Adoption is not a right. However, the legislative barriers in the Adoption Act send out a troubling social message that a person’s non-heterosexual orientation necessarily makes them an inadequate parent. It is unsurprising then that homophobic ideas that conflate pedophilia and homosexuality continue to exist, when the law itself seems to implicitly connect gay or lesbian parents as potential risks to children.
Discriminatory rhetoric utilised in the pursuit protecting children is not new. Aboriginal and Torres Strait Islander families have suffered the forcible removal of children. The commonly referred to “Stolen Generation” represents an era of Government policy that imputed a lack of parenting ability to persons of an indigenous heritage. While such a racially motivated policy is now rightly met with abhorrence and apology, why does the NSW Government continue to promote a construct of parenting that disenfranchises same-sex families?
While not contesting the value of the typical nuclear family, part of the problem with our understanding of parenting is the overemphasis of gender. Feminist politics has laboured across generations to contest the popular idea that women bear the primary responsibility or desire for raising children because of their reproductive anatomy. As surprising as this may be to some, not all women want to be mothers. The association between motherhood and nurturing, or fatherhood and discipline, reveals more about our limited cultural stereotypes than any gendered natural predispositions.
Social research on families ably demonstrates that it is the processes of parenting, rather than the family structure that matters. Credible psychological studies discern that children in same-sex families do not demonstrate any important differences in development, happiness, peer relations and adjustment.
Adoption often evokes the image of a mother giving her child to unknown parents. Despite the prevalence of this image in our cultural imaginary, this form of adoption accounts for only a very small percentage of adoptions in NSW. Adoption reform will have the most significant impact on the already 1,500 children living in same-sex families in NSW (what is referred to as “known adoption”).
If a child is unable to have both their parents legally recognised, they will be denied rights, entitlements and benefits associated with the non-legal parent. This includes automatic rights to inheritance, superannuation benefits or worker’s compensation. Parentage also ensures custody and contact for parents upon relationship breakdown, including child support obligations on a non-resident parent. The Bill amends step parent definitions to include same-sex step parents, and this will ensure children have greater certainty around their care and welfare.
Perhaps what makes the Government policy situation to parenting in NSW more confusing, is that same-sex couples are able (even encouraged) to foster children by the NSW Government. Minister for Community Services, Linda Burney, has endorsed parenting by same-sex couples: “Lesbian and gay foster carers make a highly valued contribution to the NSW out-of-home care service system”.
Despite considerable praise for same-sex parenting for vulnerable and displaced children, the NSW law denies these children the durability of having their relationship to their foster parents recognised. Permanency planning, which places children in long-term foster care, continues to be undermined, as children fostered by same-sex couples are then denied the security of adoption. Parenting orders that empower foster carers with parenting responsibilities expire once the child becomes 18, effectively terminating the legal parent-child relationship.
With the NSW Government claiming it is committed to the most vulnerable groups in our society, particularly children, how can disallowing same-sex couple adoption be conducive to this agenda?
Even in the case of unknown adoptions, permitting same-sex couples eligibility for consideration does not undermine the rights of children or other potential parents. Relinquishing parents should have the broadest possible range of options for their children. The adoption process is intricately guided by the consent and wishes of the relinquishing parents. It should be left to the relinquishing parents to decide on the best place and parents for their child from the widest possible diversity of families.
Adoption reform is not foreign territory in Australia. Western Australia, the ACT and Tasmania (in specific circumstances) already permit same-sex couples eligibility to adopt children.
Equality and non-discrimination before the law are universal rights, not selective privileges. Passing the Adoption Amendment (Same-Sex Couples) Bill will not only benefit children, and existing same-sex families, it will also send an important social message that people should be judged on their individual merits, not on their sexual orientation.
Families come in all shapes and sizes. It is not the lack of a mother or father that should concern us. Rather, it is the continued stigmatisation of same-sex parenting and denying legal recognition to same-sex families that undermines the best interests of children.