Anne Else: The Future Of Adoption

At long last, an official report on adoption law reform has grasped most of the biggest problems with this 45-year-old legislation, and put forward some reasonably sound remedies. But when the Law Commission's report came out last week, it made few headlines. Could it be that as a result, the current government will think it's finally safe to act on this issue without triggering off politically dangerous public storms?

It's clear that the Commission quite seriously considered abolishing adoption altogether. A remarkable 38 of the 80 submissions it received were in favour of doing this. In the end it backed away, saying that the concept was too well established and too hard to replace. But it did get to grips with the idea that adoption must be clearly seen for what it is - a transfer of parental responsibility - and that it should be as open and transparent and carefully considered a process as possible.

Under current law, there's no requirement for the mother considering adoption to have any counselling at all, even if she's legally a child herself. She can consent to the adoption ten days after the birth, and once she's signed that piece of paper it's almost impossible for her to withdraw her consent. She may think she's arranged an open adoption where she will be able to keep in touch with the child, but these arrangements have no legal standing at all. And of course, adoption completely severs all the child's birth family relationships. On the other hand, the adopting parents have a year to decide whether to make the adoption final or give the child back.

The Commission wants consents to be legal 28 days after the birth, counselling to be mandatory for intending adopters and birth mothers, and equal legal provisions and consideration. They want much more involvement for the birth father. And they think de facto couples, single people and gay couples should all be eligible to adopt - though it does seem very odd that any single woman would agree to give up her child to another single woman, let alone a single man.

If the Commission's recommendations are accepted, birth certificates will no longer present a legal fiction as if it were truth. Birth parents, adoption and adoptive parents will all be recorded, and will be freely available to the adopted person and both sets of parents. This may sound trivial to anyone who has not been involved with adoption, but it's not. It deals a deadly blow to the old regime of secrecy and shame.

So on the whole, if adoption is to stay - and the Commission does actually state that keeping the child with the birth family should be thoroughly explored first - these changes would go a long way toward making it work better for everyone.

But surrogacy is another matter. What's it got to do with adoption? Well, in law, a woman who gives birth to a child is, logically, that child's mother. So if she is having the baby for someone else, inside or outside her family, the new parents have to adopt the baby.

No one knows how many cases of surrogacy there are in New Zealand each year. But every so often there's an appalling woman's magazine story (woman has baby for friend, baby is twins, friend only wants the boy so woman keeps the girl). And there are rumours of midwives being horrified to discover that the baby they're delivering is to be immediately handed over to another woman - or that it was supposed to be handed over, but the mother doesn't want to go through with it - or even worse, that there's something wrong, the intending parents don't want the baby after all, and nobody else does either…

Yet New Zealand has no specific law whatsoever to deal with surrogacy. Lawyers think it's something of a miracle that there hasn't already been a very messy court case.

The Commission couldn't avoid dealing with surrogacy, but they very properly say that they couldn't resolve this complex issue in the context of adoption law reform, and much more thorough debate is needed. They certainly don't think there should be any "fast-track" procedure that sidesteps the adoption requirements they want put in place. And they do a far better job of setting out all the difficulties and dangers of surrogacy than any previous official report has done.

The last major report on "assisted human reproduction" was so obtuse as to state that conceiving and/or gestating and then giving birth to a baby for someone else was on a par with sperm donation. It recommended outlawing payment for sperm or eggs or embryos, but said nothing similar about surrogacy. It seemed to think it would be a good idea to let people just get on with it and then do interesting research on the results.

The National government's attempt at drafting a bill took a similar tack - it mentioned surrogacy only to say that it definitely wasn't a donation, but otherwise stuck its head in the sand and hoped everything would somehow sort itself out. Well, it won't, and the Commission knows that. The report is remarkably frank about the defects of Doug Graham's bill.

Let's hope that the current government doesn't let the Commission's report languish on top of the now vast pile of paper on adoption and reproductive technology, and actually gets round to doing something sensible about the law before it's too late.

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