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58 ACCOUNTS OF THE EARLIEST KNOWN ADOPTION PRACTICES date
back to c2800 BC.[46] Most early adoption, whether based upon religious practices or not, was for the purposes of succession. Greek, Roman, Chinese, Hindu and Japanese adoption practices were based on securing succession.
59 Roman law had two forms of adoption, adrogatio (or arrogatio) and adoptio. Adrogatio was used for religious purposes, requiring the head of an upper class family to submit to the head of another family. Adoptio minus plena secured the child’s succession rights in the natural family and allowed the child to succeed in the event of the intestacy of the head of the adoptive family. Where the person was a minor, adoptio minus plena was used and the child’s legal relationship with its parents survived the process.[47]
60 Mäori had a system of caring for children that has been equated with guardianship.[48] Mäori would give members of their whanau a child to raise as their own.[49] Such children were referred to as whängai or atawhai. Whängai placement was not necessarily permanent. Such placements were a matter of public knowledge and the child was aware of its birth parents and other family members, and usually maintained contact with them.
61 In 1881 New Zealand became the first country of the Commonwealth to enact adoption legislation.[50] This arose out of a recognition that informal adoption, described by Campbell as a “system of voluntary guardianship”,[51] was already taking place. Such adoption contracts were not recognised by the common law on grounds of public policy. If birth parents wished to reclaim their child, the adoptive parent was powerless to intervene. The Hon George Waterhouse introduced the Adoption of Children Act 1895, in order that “the benevolent might find wider scope for generous action; and that the results of their generosity might obtain some security by law”.[52] The adoption legislation gave legal status to adoption but did not prevent legal recognition of the Mäori practice of whängai placement.[53]
62 Social needs and perspectives change throughout history – what is considered to be acceptable practice by one generation can be considered completely unacceptable in another. That has been the experience in the case of adoption law. The next section illustrates the changes in the way adoption has been viewed and practised throughout this century.[54] It is the changes in social needs and perspectives between the 1950s and the 1990s that present challenges to the current law of adoption.
63 Statutory adoption in New Zealand was initially viewed as a means of lightening the burden on the State of maintaining destitute persons. Many adoptions in the early period of legal adoption were of young children rather than babies. Tennant noted that Päkehä adopters during that time were more interested in adopting “children of ‘useful’ years”, as small babies were “uneconomic”.[55] Prior to the Second World War it was unusual for single women to give up their babies. Else observed that:[56]
Right up until the 1940s, many believed that keeping an illegitimate child was a fitting punishment for the mother’s sin – and a warning to other women who might be tempted to stray.
And Smart explained that:[57]
[H]er parental obligations were seen as little more than part of her stigma and rejection . . . having sole custody [of the child] . . . was more a form of legal punishment than a concession.
64 Where a mother was not able to care for her child, institutional or foster care was the usual alternative. Where a mother chose to place her child in state care because she was unable to care for it (usually for financial reasons) she had to pay maintenance to the State. Mothers usually attempted to keep their babies, despite the difficulties involved. Adoption was mainly reserved for instances where a married woman had an extra-marital child.[58]
65 By the late 1940s, institutions (such as Bethany, Motherhood of Man and Alexandra) involved with the care of unmarried mothers began to promote adoption, rather than keeping the child, as the most appropriate option for unmarried pregnant women. Keeping the child as a means of punishment was seen as undesirable. Such institutions emphasised that adoption allowed the mother to return to her life as if nothing had happened. Even so, in the late 1940s more women still chose to keep their child rather than have the child adopted.[59]
66 In the 1950s single mothers were encouraged to adopt their children; the prevailing view was that children were best raised in a two-parent adoptive family rather than by a single mother. A single woman who did not want to give up her child to be raised by such a family was labelled selfish.[60] The mother who gave up her child was praised for being responsible, and was deemed a better mother than the woman who wished to raise her own child.
67 Unmarried pregnant women were usually sent to live in a different town until the baby was born. Some women had positions arranged for them as unpaid (or poorly paid) domestic help. Women who went to institutions which cared for unmarried mothers theoretically had the option of keeping their children. However, in the 1950s there was fewer babies available for adoption than there were couples waiting to adopt a child, and some homes actively discouraged mothers from keeping their babies.[61] There was an unspoken presumption that an unmarried women would give up her child. Little effort was made to explore how a single mother might be assisted in keeping her child. As the Deputy Superintendent of Social Welfare explained in the 1950s:[62]
I am assuming that all who read this . . . think as I do that, in principle, adoptions are a good thing, and that I do not need to write about the emotional satisfaction for adoptive parents and child that can ensue from a good adoption. We will agree that adoptions should be encouraged rather than discouraged.
68 The perception that there is either a ‘surplus’ or a ‘shortage’ of children to adopt illustrates the way that people viewed adoption – in this period (and perhaps to a more limited extent, today) adoption was seen as a way to supply childless couples with a family.[63] In the late 1940s newspaper articles began referring to the ‘shortage’ of babies available for adoption. Throughout the 1950s there were more applicants to adopt than children needing to be adopted.
69 The Destitute Persons Act 1910[64] and the Domestic Proceedings Act 1968[65] created a statutory means by which a woman could seek a maintenance order against the father of her children. The court could, at its discretion, set the rate that it thought appropriate for the father to pay the mother in respect of the child.[66] This maintenance continued until the child reached the age of 16; maintenance would continue to be payable in respect of a child over the age of 16 if the child was engaged in full-time education.[67] These statutes provided a means by which women could seek maintenance from the putative father, but where there were difficulties, women had to resort to the court in order to enforce the maintenance agreement or order. There were further difficulties; an unmarried mother had to obtain an acknowledgement of paternity from the father or a declaration of paternity from the court in order to be entitled to seek maintenance.[68] The Domestic Purposes Benefit (DPB), introduced in 1973,[69] mitigated these difficulties. The Act provided state financial support for single mothers, irrespective of whether the father was contributing to maintenance payments.[70]
70 The introduction of the DPB was blamed for “creating a shortage of babies for adoption”.[71] However, the extent to which the DPB contributed to the shortage of babies available for adoption is unclear. The number of births outside of marriage fell between 1971 and 1976.[72] The numbers of ex nuptial children being adopted had started to fall in 1962, before the introduction of state financial support.[73] Else notes that a number of other factors were at work, such as a ‘softening’ of attitudes towards illegitimate children and their mothers, the removal of the stigma of illegitimacy by the Status of Children Act 1969, the increasing availability of contraception and delays in the placement of babies.[74]
71 Since the middle of this century, a climate of secrecy has surrounded adoption law. This was effected by a variety of means. Prior to 1955 the natural mother’s consent to an adoption was not valid unless she knew the identity of the adoptive parents.[75] Section 7(6) of the Adoption Act provides that a parent or guardian of a child may give consent to an adoption without knowing the identity of the prospective adoptive parents. This was described by the Attorney-General at the time as “highly desirable”,[76] and by another member of parliament as “a humane step”.[77] Blanchard J commented in Re Adoption of PAT that the practice of a[78]
closed adoption process which seems to have been envisaged by the Adoption Act was in part designed to protect child and adoptive parents respectively from what were then regarded as the stigmas of illegitimacy and infertility.
The Adoption Regulations 1959 allow the identities of the adoptive parents to be kept secret by providing forms which identify the adoptive parents by a reference number, if they so wish.[79] Natural mothers were often told that they were not allowed to attempt to find their child.[80]
72 Once a child is adopted the birth record is sealed and a new birth certificate is issued. This certificate shows the names of the adoptive parents[81] only and their ages at the birth of the child. This obscuring of the factual and legal history of the child’s life further served to entrench the culture of secrecy. This secrecy has been partially eroded by the Adult Adoption Information Act, which provides a process by which birth parents can seek contact with their children and by which adopted children can obtain their original birth certificates and make contact with their birth parents.[82]
73 Over the last 20 years social workers have initiated a dramatic change in adoption practices. Since the early 1980s research has been conducted in relation to the benefits of open adoption[83] and the practice has grown substantially. There has been a marked increase in the number of adoptions providing for some form of continuing contact between the child and its birth parents; most adoptions involve some degree of contact from their inception.
74 New Zealand has been described as “leading western adoption practice with respect to openness”.[84] Although open adoption is being widely practised, it is not recognised in law and Family Court judges struggle to reconcile open adoption with the Adoption Act which acts as a statutory guillotine, promoting secrecy and the complete severance of ties between birth parents and children.[85] The Adult Adoption Information Act went some way towards resolving some of these issues and allows most birth parents and adult adoptees to access identifying information.[86]
75 Adoption has been used at various times this century as a means of regulating the status of the child. In the middle of this century, when illegitimacy was considered an undesirable status, a parent could legitimate his or her child by adopting it – one of the effects of adoption is that the child is deemed to be the child of the parent as if born in ‘lawful wedlock’.[87] In more recent times, a child born in performance of a surrogacy agreement is not the legal child of the parents who intend to raise it, therefore adoption is used to regularise the child’s status.[88]
3. The participants – competing interests
76 EACH PARTICIPANT in the adoption process has specific interests; the
participants also have specific legal rights. We consider how adoption law might balance the interests of all participants in the adoption process.
77 At the centre of the whole process is the child who is placed for adoption. For the child, the main aim of adoption should be to provide a permanent family that would otherwise not be available. Such an environment should provide the child with love, shelter, food, nurturing, education and emotional security. The welfare and interests of the child should be at the heart of the adoption process.
78 Chisholm J of the Australian Family Court[89] observed that:[90]
[W]e know from research and from anecdotal material that many adopted people also have complicated feelings about identity and about their origins and their birth parents.
Adopted children have unique and continuing needs in this respect, and adoption law must be shaped in such a way that this is recognised. The law, as well as acting paternally to protect the child’s best interests, should also respect the right of the child to the preservation of “identity, including nationality, name and family relations as recognised by law without unlawful interference”.[91]
79 The decision to place her child for adoption is one of the most crucial decisions in a mother’s life.[92] Longitudinal surveys of birth mothers reflect the profound impact that this decision has on the rest of their lives, whether for better or for worse.[93] In order that birth mothers make the right decision for themselves and for the child, legislation needs to provide safeguards that ensure a considered decision is made.
80 Current legislation allows birth mothers to consent to an adoption 10 days after the birth of the child.[94] There is debate as to whether this allows sufficient time after the upheaval of pregnancy and childbirth to make a proper decision.[95] What needs to be taken into consideration is our increased understanding of the stresses and hormonal changes that accompany pregnancy and childbirth.[96] An appropriate period for consent will be discussed later in the paper.
81 There is no statutory requirement that a birth mother undergo any counselling to assist in deciding whether to consent to the adoption of the child. Social workers are encouraged to counsel birth mothers in assisting them to make the right decision;[98] however under the current law a birth mother may make the decision to place the child for adoption and select adoptive parents before Social Welfare becomes involved. If the birth mother has not approached Social Welfare prior to the birth of the child, the first contact with a social worker is likely to be after the birth when the mother wishes to place the child.
82 A further concern is that participants in the adoption process need to be able to access independent counselling services. We discuss in Chapter 14 how the provision of counselling might better protect of the birth mother’s interests, before she gives consent to the adoption of her child and after the adoption order is made.
83 Except in extraordinary cases[99] birth fathers have a moral right to take part in deciding whether to give up the child for adoption, and their interests are analogous to those identified above in the discussion about birth mothers. The importance of considered and informed consent and proper counselling should not be overlooked with respect to the father of the child.
84 The interests of a birth father who is not a guardian of the child are difficult to identify and hard to protect. Else describes the place of an unmarried birth father in the era of closed adoption as “at best shadowy and at worst completely invisible”.[100] The law states that the consent of birth fathers who are not guardians shall be required if the court considers it expedient to do so.[101] There is judicial disagreement as to whether the consideration of ‘expediency’ requires an assessment of whether it is fair to deny the father the right to consent (or to withhold consent) to the adoption.[102] In some cases it is recognised that applications by a birth father to become a guardian may be vexatious or not genuinely motivated;[103] in others there seems to be a comparison between the father’s suitability to act as a parent or guardian and the quality of home that the proposed adoptive parents can offer.[104] At paragraphs 223–226 there is a consideration of how the interests of the non-guardian birth father can be better balanced against the wishes of the birth mother and the needs of the child.
85 Current adoption practices facilitate varying degrees of contact between the birth parents and the adoptive family, and this is often a condition which birth parents seek to impose when consenting to adoption. There is no provision in the current legislation recognising these arrangements. If the adoptive family renege on the arrangement the birth parents have no legal means of redress, although social workers will often attempt to mediate between the parties to achieve an amicable outcome.
86 Family members often play an important role in the life of their grandchild, niece or nephew. Some cultures place particular importance on intergenerational and wider family involvement in the life of the child. Current adoption law enables these links to be severed without any involvement of the extended family. The Adoption Practices Review Committee in 1990 noted[105]
the concern of families, who were unaware of the child’s birth, until after the decision to adopt was made. These families expressed feelings of grief and regret, not only at the loss of a family member, but at not having had the opportunity to participate in the decision-making regarding the child’s future.
The lack of consultation with wider family can be particularly offensive to Mäori, who value collective decision-making in relation to child placement.[106]
87 The model of family consultation established by the CYP&F Act provides a useful comparison. Where a child is in need of care and protection, the wider family can become involved in making decisions regarding that child’s future. The CYP&F Act sets out in its long title the need to:
[M]ake provision for matters relating to children and young persons who are in need of care or protection . . . to be resolved, wherever possible, by their own family, whanau, hapu, iwi or family group.
88 Unlike the CYP&F Act, the Adoption Act does not require consideration of whether family members might be able to meet the needs of the child, before adoption outside of the family is considered. It is common for an older child who has been cared for within its birth family to have been the subject of a family group conference[107] or of a care and protection order[108] under the CYP&F Act before adoption is contemplated. This is not the case when newborn children are placed for adoption.
89 Wider family will usually have a legitimate interest in the welfare of family members, although in exceptional cases it may not be beneficial for the child that they should take such an interest.
90 A careful balance must be maintained between the interests of the wider family and those of the birth parents. Input from families may not always be helpful. Where after counselling a birth parent is adamant that there shall not be wider family knowledge or involvement in the making of decisions regarding that child, there should be discretion not to require the involvement of other family members. The Adoption Practices Review Committee concluded, after wide consultation with social workers, that[109]
to have to face unwelcome family pressure when one is at one’s most vulnerable seems inhumane, especially if, with open adoption, adoption may not harm the child’s interests. It is likely that if the birth mother was on good terms with her family then she would already have involved them. If after some counselling a birth mother still does not want her family involved then should she be made to consult them?
91 In order to achieve consistency in child welfare legislation, and to comply with our obligations under the UNCROC,[110] where family members are available and willing to care for the child, the State should facilitate and intervene as little as is necessary.
92 Adoptive parents may seek to adopt for a number of reasons. A common reason is infertility. Another recent trend has been for people to adopt for humanitarian reasons, motivated to save children from lives of poverty in lesser developed nations. Common to all of these motivations is a desire to parent a child.
93 Adoption is not, however, the same as having a biological child, and it may benefit adoptive parents and children to receive counselling to come to terms with the difference between raising an adopted child and a biological child. Adoptive parents need to be prepared for what the adoption process will entail, both in the short term and longer term.
94 Taking full responsibility for someone else’s child is a big commitment. Adoptive parents need to be supported and need to feel secure in the knowledge that their parenting efforts will not be disturbed or undermined. It is in the interests of adopted children that they be brought up by parents who are secure in their parental role.
95 Where adoptive parents have participated in a surrogacy arrangement, they may also be the genetic parents of the child. The interests of these parents are unique and will be discussed in detail in the chapter on surrogacy.[111]
96 Adoption, as a balancing of competing interests and rights, and as a means by which children are legally transferred from the care of one family to another, plays a fundamental role in society and the community interests involved must be considered. In this respect we consider a number of factors:
• the way family relationships are altered by adoption;
• the role that secrecy has played and should play in adoption;
• the role of the professionals involved in the adoption process;
• the regime that should regulate the process.
Finally, we will consider the relevance of adoption as an institution in contemporary society. The community has an important interest in each of these matters.
Adoption and new family relationships
97 Section 16 of the Adoption Act determines the family relationships that exist in law after the adoption order. Subsection (2) provides that:
(a) The adopted child shall be deemed to become the child of the adoptive parent, and the adoptive parent shall be deemed to become the parent of the child, as if the child had been born to that parent in lawful wedlock;
(b) The adopted child shall be deemed to cease to be the child of his existing parents (whether his natural parents or his adoptive parents under any previous adoption), and the existing parents of the adopted child shall be deemed to cease to be his parents, and any existing adoption order in respect of the child shall be deemed to be discharged.
98 These provisions create the legal fiction[112] that the adopted child is the child of the adoptive parents, and vice versa, and in law the links with birth parents cease to exist. This approach is reflected in the Births, Deaths, and Marriages Registration Act 1995 (‘Births, Deaths and Marriages Registration Act’). Section 63 provides that the birth certificate for an adopted person will not be issued unless it has been requested “by reference to the names most recently included in the registration of the person’s birth under section 24 or section 25 of this Act”.
99 Sections 24 and 25 refer to the provisions for the registration of adoptive parents. Unless a request is made under the Adult Adoption Information Act, the birth certificate of an adopted person will read as if that person had been born to the adoptive parents, to the extent that the adoptive parents’ ages at the time of that child’s birth are recorded. Original birth records are sealed.
100 Adoption is a change of status that creates between the adopter and adoptee all of the legal rights and obligations (and responsibilities) that exist between birth parents and their children. Section 16, which deems adopted children to be the child of the adoptive parents as if born to them, is viewed by some adoptees as an unnecessary distortion of the reality of the adoption process. This point may seem semantic, but appears to be of significant symbolic importance to some adoptees.
101 An adoption order must at the very least shift permanently ‘full parental responsibility’ from one set of parents to the next. Parental responsibility in this sense might comprise all rights, duties, powers, responsibilities and authority which, by law a parent has in relation to a child and that child’s property.[113] The effect of such an order would be that only the adoptive parents could exercise parental responsibility.
102 Such reformulation would place less emphasis on obscuring the connection to the birth family, but would still ensure that the rights and responsibilities of the adoptive parents are made clear. A reformulation could guide an amendment to the description of the effect of adoption contained in section 16(2) of the Adoption Act. This may help assuage the concern expressed by adoptees that the current provision gives an unrealistic impression of the role of the adoptive parents in the child’s life.
Should legislation reformulate the legal effect of an adoption?
What should be encompassed in a definition of parental responsibility?
The place of secrecy in adoption
103 The Adoption Act contemplates ‘closed adoption’, a concept premised upon the idea that the adoption should be kept secret, that involved parties should not be identified, and that there should be no contact between the parties. In 1955 it was assumed that a clean break was best for all concerned, that the birth mother would forget the child and begin a new life, and that the adoptive family would be no different from a natural one.
104 The legal consequences of adoption purport to give effect to such assumptions. The reality, however, is that there are birth parents who for some reason give up, or have taken from them, the right to care for their child. Adoption creates a new family relationship in which that child can be nurtured and raised. But adoption does not mean that the birth family never existed. There is increasing recognition that knowledge of, and perhaps even contact with, birth parents and relatives, can be important to the growth and development of the child.[114]
105 Social workers, through their duty to control the placement of children for adoption, have promoted openness whilst the law contemplates secrecy.[115] It is appropriate to consider whether the law should be altered to reflect current adoption practices.
Adoption: knowing the options and obtaining professional advice
106 We observed in paragraphs 81 to 82 that it is in the interests of both birth parents and adoptive parents to have access to effective counselling and advice so that informed decisions can be made and the adoption process and implications understood. Where a birth parent does not involve social workers, doctors or lawyers until a very late stage, it may not be possible for her (or him) to make a considered and informed decision.
107 Access to counselling and adoption services needs to be widely promoted so as to be available at an early stage to those who are vulnerable. Such services should provide accurate and impartial advice. Life education in schools should not be confined to ‘sex education’ but should also educate young people about relationships and responsibilities, the social consequences of pregnancy and should inform students of places from which they can seek advice.
108 In the particular case of step-parent adoption of a spouse’s children, there is no legal requirement to involve Social Welfare – often the only professional involved will be a lawyer. These cases especially can require careful assessment by social workers in order to determine the motivations for the adoption and the interests of the child. It is in the interests of the community that counselling be conducted and assessments be made to ensure that the child’s links with the other birth parent (or previous guardian or adoptive parent) and that parent’s family are not being severed unnecessarily or without good reason. Reports from counsellors and social workers should also be required in these cases.
Private providers of adoption services
109 Agencies such as Bethany in Auckland, Catholic Social Services in Christchurch, and the Latter Day Saints Social Services are involved in matching up adoptive parents with birth mothers.
110 These agencies are not regulated and have no statutory powers. Since a child cannot be placed in a home without prior social worker approval,[116] these agencies must seek approval for the proposed placement from AISU social workers of Social Welfare. The AISU works with these agencies but requires that the prospective adopters make a formal application to adopt and take part in the education sessions provided by the AISU.
111 Experience suggests that these agencies perform a useful function. Potential adoptive parents screened and accepted by these agencies at first instance, are usually subsequently approved by Social Welfare. The agencies also provide extensive services for pregnant women who need ‘time out’ to make a considered decision about their ability to care for a child.
112 To this extent, an accreditation programme that allows agencies to have a formal role in the adoption process may relieve part of the burden of screening applicants, which is currently officially borne by the State. The United Kingdom Adoption Act 1976 contains a provision which allows the Secretary of State to approve voluntary agencies to work as adoption societies.[117] This allows the society to screen prospective adopters and place children for adoption. The adoption agencies are controlled by regulations made by the Secretary of State.[118] This model could be adapted for use in New Zealand. New Zealand already has an accreditation procedure for non-profit bodies arranging intercountry adoptions.[119]
113 There arises here a consideration of whether such agencies should be profit-making. The introduction of a profit motive may compromise the ability of these agencies to offer a service that provides, and is seen to provide, independent screening of applicants for adoption and independent counselling of birth mothers. ‘Payment’ for adoption has in the past aroused fears that children will become commodities and baby-farming will be encouraged. It is for this reason that the Adoption Act provides that it is an offence to make or receive payments[120] in consideration of an adoption or proposed adoption, or in consideration of making arrangements for an adoption.[121]
Should all agencies which provide adoption services be accredited?
Should accreditation be allowed only for non-profit agencies?
How should accredited agencies be regulated?
Should accredited agencies be permitted to authorise adoption placements?
114 Birth mothers often make their own arrangements to adopt their child to persons that they know or who are recommended to them by friends and acquaintances. These private arrangements are unregulated and often the first contact that the prospective adopters have with the AISU is when the court calls for a social worker’s report on the suitability of the applicants to adopt. By this stage the child has usually already been placed with the prospective adopters (notwithstanding that this may constitute a breach of section 6 of the Adoption Act), and the court is presented with a fait accompli.
115 The birth mother’s right to choose the prospective adopters is important. However, it needs to be balanced against the risk that the birth mother might be subjected to undue pressure to adopt by well-meaning family and friends. Unauthorised placements may also place the child at risk, as the screening of the prospective adopters occurs only after the child has already been placed with the prospective adopters.
Should all prospective adopters be required to be screened by the AISU (or an approved agency) before making an application for an interim adoption order?
Should section 6 of the Adoption Act be more stringently enforced to prevent unauthorised placements?
Should an unauthorised placement impact on the court’s assessment of the suitability of the prospective adopters?
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