Review of adoption laws in Aotearoa New Zealand

Closes 31 Aug 2021

Contents

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Discussion document: Adoption in New Zealand [PDF, 696KB]

Glossary

Adoptive parents

We use ‘adoptive parents’ to describe the people who become the legal parents of the child once an adoption order has been made.

Adoptive applicants are the people who have applied to the Court to become adoptive parents.

Birth mother, birth father or birth parents

We refer to the person who was the child’s legal mother at birth as the ‘birth mother’. We use the term ‘birth father’ to refer to the person who was legally or biologically the child’s father at birth, noting that sometimes a birth father will not be identified on the child’s birth certificate. Collectively, we refer to these people as the ‘birth parents’.

These terms are used to help distinguish between the two sets of parents involved in adoption. Using the term ‘birth mother’ isn’t intended to reduce the role to her biological function.

Child or tamaiti (children or tamariki)

We refer to a child or tamaiti as a person under the age of 20 years old (unless stated otherwise). This is because this is the definition used in the Adoption Act 1955. Children or tamariki are used to refer to the collective.

Child’s best interests

‘Best interests’ is a term used by the Children’s Convention. It says that in all actions concerning children, the best interests of the child shall be a primary consideration. What is in a child’s best interests will depend on the individual child’s circumstances and means making a decision that is best for that particular child.

Child born by surrogacy

A child who has been born as a result of a surrogacy arrangement is referred to as a child born by surrogacy.

The Children’s Convention

The Children’s Convention is formally known as United Nations Convention on the Rights of the Child. It is an international treaty that sets out the rights of children. Aotearoa ratified the Children’s Convention in 1993.

The Children’s Convention says that the best interests of the child is to be the primary consideration in all actions concerning children. This means that what is best for a child should be the first and most important thing to think about when making a decision about a child.

Domestic adoptions

Domestic adoptions are where both the child and the adoptive applicants live in Aotearoa. These adoptions may be arranged via Oranga Tamariki or in private.

Family and whānau

We define family and whānau as the broad family group, which isn’t limited to the immediate or nuclear family.

The Hague Convention

The Hague Convention is formally known as The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. It is an international Convention dealing with intercountry adoption and child trafficking. Aotearoa ratified the Hague Convention in 1998.

Intending parent(s)

We refer to the person or people who have entered a surrogacy arrangement with a woman to become pregnant, carry and deliver a child on their behalf and who will become the child’s parent(s) after birth as the ‘intending parent(s)’.

In some cases, the intending parent(s) may have a genetic link to the child.

Intercountry adoption

Intercountry adoptions are where the child and the adoptive applicants live in two different countries. These adoptions may follow the law in the Adoption Act 1955, the Adoption (Intercountry) Act 1997, or the law in another country.

Original birth certificate

The original birth certificate provides information, including the names of birth parents, from a person’s original birth record which was closed when the adoption was made.

Overseas adoption

An overseas adoption is where both the adoptive applicants and the child live overseas. The adoption order is made overseas and is valid according to the law in the overseas country. The law recognises some overseas adoptions, so long as they meet certain criteria.

Surrogacy

Surrogacy is an arrangement where one person agrees to become pregnant and carries and delivers a child for the purpose of giving parental responsibility of the resulting child to another person(s) after birth.

Surrogate

We define a surrogate as the woman who agrees to become pregnant, and carries and delivers a child on behalf of the intending parent(s). A surrogate may or may not have a genetic link to the child.

The United Nations Declaration on the Rights of Indigenous People (UNDRIP)

UNDRIP establishes a universal framework of minimum standards for the survival, dignity and well-being of the indigenous people. Aotearoa endorsed UNDRIP in 2010, but has not ratified it.

Whakapapa

We refer to whakapapa as the multi-generational kinship relationships that help to describe who the person is in terms of their mātua (parents), and tūpuna (ancestors), from whom they descend. This is the same as the definition in the Oranga Tamariki Act 1989.

Whāngai or atawhai

Tamaiti whāngai or tamaiti atawhai is a Māori customary practice where tamariki are placed in the care of others (generally whānau members), instead of the birth parents.

Introduction

Adoption is where a child is raised by and, becomes the legal child of, a person or people other than their birth parents. Adoptions reached their highest number in Aotearoa New Zealand in the 1970s, with nearly 4,000 children adopted each year. The number of adoptions in Aotearoa has reduced over time, with only 125 adoptions granted by the New Zealand Family Court in 2020.

Aotearoa New Zealand’s key piece of adoption law, the Adoption Act 1955, is now over 65 years old. An underlying principle of the law is the idea of a ‘clean break’ between the child and their birth parents. This meant that adoptions were generally ‘closed’, with the child having no information about their birth family and whānau. Changes to our understanding of best practice, and the impacts of adoption, have influenced how we now approach adoption. Most adoptions in Aotearoa these days are ‘open’, meaning that the child generally knows they are adopted and may have a relationship with their birth family and whānau.

While practice has changed over time, the law is largely the same now as it was when it came into force, reflecting the values and attitudes of the 1950s. It doesn’t reflect modern adoption practices or fully align with the direction of domestic and international human rights obligations. It also fails to promote children’s rights in the adoption process, which can place their wellbeing at risk. There is no acknowledgement of a child’s culture, and the cultural needs and practices of those involved in the adoption process.

Adoption laws are now used for reasons that weren’t considered at the time they came into force. For example, adoption is now used to create a full legal relationship between intending parents and children born by surrogacy. These days, intercountry adoptions, including those made overseas, make up the majority of adoptions made and recognised under our law (in addition to the 125 adoptions made by the New Zealand Family Court last year). This includes adoptions made by countries who are Hague Convention Contracting States and those that are not. Overseas adoptions made in Pacific Island countries are most commonly recognised in Aotearoa. In some cases, recognising overseas adoptions have raised serious child protection risks as other countries’ laws don’t match Aotearoa New Zealand’s approach to child safety and welfare.

Current laws may be a source of harm for some people who have been adopted, birth parents, adoptive parents or otherwise have experiences with adoption. Adoption can have significant and lifelong effects on people, and some may experience feelings of loss and grief. Adoption can affect them in ways that many people see as essential to their personal identity, such as their culture and language. This may be more pronounced where a child is adopted outside of their culture. In particular, tamariki Māori adopted into non-Māori whānau can become disconnected from their culture and find it hard to connect to their whakapapa and whenua. This experience of cultural disconnection can be passed through to the next generations.

There have been calls to change Aotearoa New Zealand’s adoption laws for a long time. We acknowledge the time and effort adoption reform advocates have dedicated over many years to bring about change. We also thank those who have been involved when previous governments have considered adoption law reform. The hard work of those involved helps us to reflect on the past and guide the development of adoption law and policy today.

We’re reviewing current adoption laws so we can look forward and create adoption law that is safe and supportive for everyone involved in an adoption. We propose placing children’s rights at the centre of the law, given the significant impact adoption has on their life. New laws will also ensure we can better provide for people’s cultural needs and reflect Aotearoa New Zealand’s multicultural society. This includes ensuring the Crown meets its obligations toward Māori under te Tiriti o Waitangi - the Treaty of Waitangi. Reform also provides the opportunity to consider whether there is a need for adoption laws to legally recognise whāngai arrangements.

Adoption is currently the way that the intending parents become the legal parents of a child born by surrogacy. As part of reform, we will look at ways to improve the adoption process where a child is born by surrogacy, but we will not be looking at broader questions relating to surrogacy. In 2020, the Government asked Te Aka Matua o te Ture | Law Commission, Aotearoa New Zealand’s independent law reform body, to undertake a wider review of surrogacy and related issues.

This discussion document describes the current law and some of the problems with it. It also suggests some ideas for addressing those problems and seeks your views. The ideas set out in this document are not the only ones we will consider. The Government hasn’t made decisions on what a new adoption laws should look like. We want to hear your ideas. Your views will help to us to advise the Government on proposals for reform.

Objectives of reviewing adoption law in Aotearoa

The following objectives have been created to help to shape the development of adoption law in Aotearoa. They will be used to guide and consider suggestions for reform.

  1. To modernise and consolidate Aotearoa New Zealand’s adoption laws to reflect contemporary adoption processes, meet societal needs and expectations, and promote consistency with principles in child-centred legislation.
  2. To ensure that children’s rights are at the heart of Aotearoa New Zealand’s adoption laws and practice, and that children’s rights, best interests and welfare are safeguarded and promoted throughout the adoption process, including the right to identity and access to information.
  3. To ensure that adoption laws and practice meet our obligations under Te Tiriti o Waitangi and reflect culturally appropriate concepts and principles, in particular, tikanga Māori, where applicable.
  4. To ensure appropriate support and information is available to those who require it throughout the adoption process and following an adoption being finalised, including information about past adoptions.
  5. To improve the timeliness, cost and efficiency of adoption processes where a child is born by surrogacy, whilst ensuring the rights and interests of those children are upheld.
  6. To ensure Aotearoa meets all of its relevant international obligations, particularly those in the UN Convention on the Rights of the Child and the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption.
Page Response
Tell us a bit about yourself
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SECTION 1: WHAT IS ADOPTION? This page has no questions
Te Tiriti o Waitangi/the Treaty of Waitangi
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Purpose of adoption
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SECTION 2: WHO IS INVOLVED IN ADOPTION? This page has no questions
Child’s rights in the adoption process
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Birth parent’s role in the adoption process
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Who can adopt?
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Birth family and whānau
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Government, the Court and accredited bodies
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SECTION 3: CULTURE AND ADOPTION This page has no questions
Culture and adoption
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Whāngai
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Customary adoptions
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SECTION 4: HOW DOES THE ADOPTION PROCESS WORK? This page has no questions
Recognition of overseas adoptions
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Hague Convention intercountry adoptions
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Intercountry adoptions in the New Zealand Family Court
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Intercountry adoptions in an overseas court
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Who consents to an adoption?
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Timing of consent and withdrawing consent
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Dispensing with consent
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Suitability to adopt
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Court processes
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Legal effect of adoption
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Alternative care arrangements and orders
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Discharging an adoption order
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SECTION 5: IMPACTS OF ADOPTION This page has no questions
Adoption support services
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Birth certificates after an adoption
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Access to adoption information
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SECTION 6: SURROGACY AND THE ADOPTION PROCESS This page has no questions
Domestic surrogacy arrangements
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International surrogacy arrangements
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