Exploring Gay Adoption
Thousands of children are in foster care each year, yet so few are ever placed for adoption, especially in same-sex households. Serkan Ozturk explores the issues gay and lesbian couples face when adopting a child.
Adoption by a same-sex couple or even a single person who happens to be gay or lesbian is extremely rare in Australia. That rarity is not brought about because gay men or lesbians would never consider adopting a child or that somehow it’s a process not for them. Rather, the mix of state and federal laws means that every year only a minute fraction of children in need of familial stability are placed for adoption and that, in many places throughout the country, it remains illegal for a same-sex couples to adopt any child.
As of June 30 last year, there were about 25,000 children across the nation who had been in foster care for two years or more. The most recent annual paper published by the Australian Institute of Health and Welfare on the number of overall adoptions shows that for the 2010-11 financial year, there were only 384 children adopted. Of that number, 165 adoptions took place in NSW.
Lynne Mogach, the senior manager of Barnardos’ Find-A-Family program in NSW, explains how there are still plenty of children who will never get a real chance for a permanent home and family.
“NSW is really the only state that looks at the adoption of children in out-of-home care,” she says. “All states allow for it but there are very few that happen. They call them ‘known child adoptions’. In 2010-11 there were 49 in Australia who were adopted by their carers. It’s not a lot. It’s really scary to think there are so many children in foster care who are not being adopted.”
Rodney Chiang-Cruise, the convener of support and advocacy group Gay Dads Australia, is even more blunt in his assessment of the current options available for same-sex couples.
“If they are seeking unknown adoption as opposed to a known adoption, then they should be prepared for a long wait, a longer wait, further delays, discovery that there are no children available, then rejection,” he says.
“The chances for a same-sex couple adopting in Australia are very minimal with respect to unknown adoption. Adoption as the result of permanent foster care is likely to be more common but I suspect it is limited to an individual adopting as opposed to a same-sex couple.”
Adoption by a same-sex couple in Queensland, Northern Territory, Victoria and South Australia remains illegal while single gay and lesbian people are also banned from adopting in Queensland and South Australia although gays and lesbians in all states and territories are allowed to be foster carers.
It’s a situation that Tracy Cocks, the president of the Foster Care Association of Victoria, says is hypocritical.
“The greatest hypocrisy is that whilst the Victorian Government says gay and lesbian couples can care for a child on a permanent care order, the federal courts are saying that only one member of a couple should parent a child,” says says. “Are they saying that one gay parent is better than two?”
Kay Feeney, from Feeney Family Law, says that if a same-sex couple does successfully adopt, legislation in NSW, Western Australia and ACT means that both parents are recognised as parents of the child, regardless of sex.
“Generally, a child’s legal parents are the birth mother and the birth father of the child,” she says.
“However where a child is legally adopted, the child’s adoptive parents are considered the child’s parents and will take on the parental rights and responsibilities. The adoptive parents can also be included on the birth certificate.
“This also means that in the event of separation, each of the adoptive parents still take on the parental and legal responsibilities of the child.”
NSW Gay and Lesbian Rights Lobby co-convener Lainie Arnold says adoption of children by same-sex couples usually comes about from having a prior relationship with the child as a foster parent or step-parent.
“Adoption has obvious advantages in terms of formalising care arrangements and providing legal recognition for both partners, including in the context of decision-making in important areas such as healthcare and education,” she says.
Barnardos’ Mogach says that any gay couple or person considering adoption needs to also think about the issues that may also arise from parenting a child that they have not given birth to.
“Sometimes we have very young children in our program as well where Community Services may have removed the child at birth because of the risk of damage to that child,” she says.
“Often that children may have suffered abuse in utero as their parents may have been drug or alcohol abusers so some of the children who come to us are born withdrawing from different drugs.
“So the preparation training is really about that there are additional factors to consider.”
Mogach says she expects more and more same-sex couples to consider adoption in coming years. Already in recent months, Barnardos has helped two male same-sex couples and two lesbian couples adopt children while the organisation has a further four same-sex couples who have children currently placed in their care with a view towards adoption.
“We find that there is a really strong commitment by same-sex couples because it’s a very deliberate and considered thing to do – to apply to an agency and to put yourself through that process to be approved as carers and adoptive parents,” she says.
“We know the outcomes for children who have been adopted by single people, same-sex couples and heterosexual couples and it’s really positive. The outcomes are just so much better and really allows children to reach their potential.”
SAME-SEX ADOPTION IN AUSTRALIA
• Adoption for same-sex couples in Australia is currently only available in Western Australia, the Australian Capital Territory and New South Wales. Only NSW has specific legislation which explicitly declares same-sex couples can adopt after the Adoption Amendment (Same-Sex Couples) Act was passed in 2010.
• In 2002, Western Australia became the first state in Australia to allow for adoption by same-sex couples after amendments to the Interpretations Act changed the definition of a de facto couple to two people in a relationship either of the opposite or same sex resulting in the Adoption Act 1994 being amended to reflect the changes.
• In 2004, the ACT’s Adoption Act 1993 was similarly changed by amendment under the Parentage Act 2004 to replace gender specific terms for couples.
• In Queensland, Northern Territory, Victoria and South Australia, same-sex couples cannot legally adopt a child under their adoption legislation but can become foster parents.
• Single gay and lesbian people may adopt in all states and territories except in South Australia and Queensland, which have bans on single people registering for an adoption.
• The South Australian and Tasmanian governments in recent years have indicated they will review adoption legislation but the Queensland, Victorian and Northern Territory governments have no plans to review or change the law to allow same-sex couples to adopt.
• None of the overseas countries that Australia has adoption agreements with currently allow same-sex couples to adopt, although some countries do allow individuals to adopt children.
• The first Australian legal same-sex adoption of a child occurred in 2007 in Western Australia.