Adoption by Same-Sex Couples

What is adoption?

According to Cornell University Law School, adoption is defined as the act of an adult formally becoming the guardian of a child and acquiring the rights and responsibilities of a parent, the legal relationship terminates any legal rights then in existence with the adoptee’s natural parents.

The Adoption Act 2009

  • Section 76 - eligibility criteria
  • Section 88 & 89 - suitability criteria/assessment

Adoption Process

After putting your expression of interest in the register, an assessment must be made to see if the adopter is suitable. To best meet the needs of children, the assessment of prospective adoptive parents is a comprehensive process. It involves information being gathered and analysed from various sources so that adoptive parents are best prepared to meet the needs of a child or children throughout his or her life. The assessment is made against domains outlined in the Act. Information gathered for the assessment may include:

  • criminal, domestic violence, traffic and child protection history checks
  • home visits for assessment interviews
  • talking with applicants, children and other adult household members and nominated referees, if required
  • obtaining health information
  • for Aboriginal or Torres Strait Islander children, having regard to the person’s ability and willingness around a variety of domains to preserve a child’s culture
  • for a child of a particular ethnic or other cultural background, having regard to the person’s ability and willingness around a variety of domains to preserve a child’s culture.

Before the Adoption and Other Legislation Amendment Bill 2016 passed the Palaszczuk Government, same-sex couples were not considered to be eligible to adopt in Queensland.

On 11 November 2016, the Bill was approved enabling same-sex couples, single persons, and person undergoing fertility treatment (i.e. IVF) to put their expression of interest on the register. Although, this does not mean that they are able to adopt a child right away, they still have to go through the process and get assessed on their suitability to become adoptive parents.

“I am proud we are removing one of the last discriminatory barriers that prevents LGBTI Queenslanders from being able to adopt a child,” - Ms Fentiman

violation of human rights

The Adoption Act 2009 violated a few rights due to not considering the eligibility of same-sex couples to adopt in Queensland. The rights violated include:

  • Article 23 of the International Covenant on Civil and Political Rights (ICCPR) - Right to Family
  • Article 16 of the Universal Declaration of Human Rights (UDHR) - Right to Family
  • Article 2(1) of ICCPR - Right to non-discrimination
  • Article 7 of UDHR - Free from discrimination
  • Article 1 of UDHR - "All human beings are born free and equal in dignity and rights"
  • Article 3(1) of the Covenant on the Rights of Child (CRC) - "In all actions concerning children….the best interests of the child shall be a primary consideration"
  • Article 21 of CRC - the best interest of child must be the paramount consideration in adoption
"Loving, nurturing and safe environments are in the best interests of the child. Gender orientation is no barrier to this"

The recent changes to the law, however, demonstrates effectiveness as it efficiently protects the stakeholder rights in which the previous law could not do.

Fairness and equity issue has been addressed by the reform as the preceding law was quite arbitrary and based on outdated prejudices and assumptions, whereas the recent changes to the law are more fair, taking into consideration vast body of parenting research showing that good parenting is not about the gender or sexuality of the parent rather the relationship of the child with the parent. Researchers from University of Melbourne surveyed 315 same-sex parents and 500 children about their physical health and social wellbeing, (ABC, 2014). Doctor Simon Crouch, a lead researcher said that children raised by same-sex parents scored an average of 6 per cent higher than the general population on measures of general health and family cohesion. Also, in a randomly sampled representative survey of 44 young people raised by lesbian or gay parents in the US, it was found that the teenagers described relationships with their parents as warm and caring. Children raised in lesbian-and gay-parented families generally report harmonious relationships with their parents, (Dempsey, 2013). Hence why the previous law was arbitrary which did not promote fairness and equity. Furthermore, the fact that Queensland was one of the three states in Australia that did not allow same-sex couples to adopt before the Bill was passed in 2016, demonstrates the inconsistency of the Queensland law with the other states. The inconsistency of the law affects the life of children who need home. Assistant Social Services Minister Zed Seselja said that “There are over 40,000 children in out-of-home care yet in the 2014-15 year we only saw 209 domestic adoptions occur”, (Farr, 2016). According to Brennan (2015), the rates of adoption in Queensland is low as Queensland laws make it difficult to adopt children. Thus, by expanding the eligibility criteria which allows same-sex couples to adopt, it makes the law effective in promoting fairness and equity as well as consistency of the law.

The Adoption Act 2009 was criticised for being archaic and discriminatory and people were hoping for some changes in the law. There were a few rights stated in the UDHR, ICCPR and CRC violated as the law did not consider same-sex couples to be eligible to adopt a child despite the number of children that needs home and love, which same-sex couples can give the child just like any heterosexual parents. Fortunately, the Bill made it possible for single-parent, same-sex couples and person going under IVF to put their expression of interest on the register. The reforms made in 2016 addressed the stakeholder rights, reflection of social norms and values, and fairness and equity as well as consistency issues which were in the previous law. Therefore, the current law must be retained.


Created with images by Tony Webster - "Equality"

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