Victoria is on the cusp of a reform that would see the State’s last law to directly discriminate against same-sex couples consigned to the dustbin of history. Proposed reforms to the Adoption Act 1984 (Vic) would be a step towards equality for gay and lesbian Victorians but also serve the best interests of children.
There are growing numbers of happy and healthy children being raised in rainbow families all across Victoria. It goes without saying that sexual orientation does not have a bearing on whether you can raise a happy, healthy child. In fact, over 40 years of international and Australian research demonstrates that children in same-sex parented families do just as well, if not better, emotionally, socially and educationally as their counterparts in heterosexual families.
Yet there are children living with same-sex parents that aren’t able to formalise that relationship through adoption, causing a great deal of uncertainty for the children, their siblings and parents.
These children live in a diverse range of family situations. They could be cared for by same-sex couples as foster parents, and then on an ongoing basis under ‘permanent care orders’. They could have one legal parent, with a new same-sex partner willing to adopt the child, or be born to same-sex parents through a surrogacy arrangement.
In these types of situations, parenting orders can be put in place but the child still cannot legally be adopted by their same-sex parents. This means that once the child turns 18 years old the parenting orders expire and the legal relationship between parent and child ceases. This can have flow on effects in wills and estates, and other areas of law. The child is left in limbo without the security, stability and practical benefits of legal recognition.
While this discrimination persists in the law, the state entrusts same-sex couples with the care of some of its most vulnerable children. Couples can be approved as carers for foster children. Indeed, many foster-care agencies actively target same-sex couples in their marketing materials. The Victorian Law Reform Commission (VLRC ) highlighted this inconsistency in their 2007 report: "It makes no sense that people in same-sex relationships are able to be approved as permanent and short-term carers of children in need, but cannot assume the full range of legal parental powers and responsibilities for these children".
These vulnerable children are entitled to the legal status and emotional security that would flow from equal recognition of their same-sex parents. And while the numbers of ‘stranger-adoptions’ in Victoria are very low and increasingly so, there is no reason why same-sex couples or individuals should not be considered on an equal footing to heterosexual couples. The underlying policy drivers in this area should be the providing children with safe and loving homes and protection under the law.
To its credit the new Victorian Government is steadfastly perusing its equality agenda and steaming towards the introduction of amending legislation this year. Leader of the Opposition Matthew Guy has signalled his personal support for the reforms and there are promising signs of a conscience vote within the Coalition ranks that would almost certainly ensure the passage of future legislation through the upper house.
One sticking point in any future bill will be the issue of exemptions for religious bodies. The Australian Christian Lobby has argued for carve outs from the law to allow faith based adoption agencies to discriminate. Thankfully, it appears the ACL is out of step with the views of adoption agencies including faith based Anglicare. Meanwhile, we have argued for additional measures to ensure that faith based agencies are not able to rely on the existing exceptions for religious organisations in Victoria’s equal opportunity laws.
When announcing Government’s plans for adoption equality the Premier said that equality is not negotiable. It’s important that the drafting of the bill gives life to this principle and doesn’t place religious organisations above the law, particularly when tax payer dollars are funding an organisation to deliver important public services.
As Farrah Tomazin has recently commented, it remains to be seen whether the Victorian Government will deliver a reform that matches its rhetoric on equality. However, there is no doubt that change is long overdue. Nearly a decade after the Law Reform Commission recommended reform, Victoria still lags behind a growing list of jurisdictions that have legislated for equality – NSW, WA, Tasmania and the ACT and over 16 other countries internationally. Amending our adoption laws would remove the last stain of discrimination against gay and lesbian parents from the statute books and have an immediate practical benefit for many hundreds of parents and children. And it’s the interests of these children that should be paramount.
Anna Brown is Director of Advocacy and Strategic Litigation at the Human Rights Law Centre. You can follow her on Twitter @AnnaHRLC
This article was written for the special Children’s Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons, the Human Rights Law Centre and UNICEF Australia.