The Myth of Adoption as a Social Good

Social Issues

The Government is consulting on changes to the 1955 Adoption Act, but there is no guarantee it will be retroactive – leaving as many as 100,000 adults adopted during Aotearoa’s ‘Baby Scoop Era’ without the justice many seek

Comment: Forty years ago, I sent my first letter to the Department of Social Welfare. “I am writing to enquire if you have any information concerning my adoption in 1960?” A social worker replied: “I have been unable to trace any information at all, other than the fact of an adoption order.” In another, I asked about avenues for finding information. “There is nothing I can do to trace your family, but I would like to take this opportunity to wish you the compliments of the season,” they wrote.

Even then, I wanted to understand the manoeuvrings that led to my removal from my mother and placement with strangers and why the Crown treated all information about me as if it were a state secret.

Adoption law reform is coming to Aotearoa New Zealand. New legislation is due to replace the outdated 1955 Adoption Act, recently described by Kesia Denhardt, partner and family lawyer at Stace Hammond, as “creaky and anachronistic”.

The second round of consultation, A New Adoption System for Aotearoa, is now available for public consultation. Led by the Ministry of Justice under the Adoption Law Reform Team, it appears there are no adopted people on the team. While the spirit of ‘Nothing About Us, Without Us’ underlies the new Ministry of Disabled People, such a concept does not seem to apply to the reform team.

But still, hope is running high for many of the estimated 100,000 adults adopted as infants during Aotearoa’s Baby Scoop Era.

Will it mean the unsealing of records deemed secret? Will it enable adopted people to be reinstated to family trees the current legislation denies even exist? Will adopted people of any age be granted the right to live with birth documents that are not falsified? Will they be able to hand down a biological birthright to their descendants? Will it provide for the right of adults to discharge the adoption order if they choose?

Despite the misnamed Adult Adoption Information Act providing for an ‘original birth certificate’, it always seemed implausible that a statute of such profound severance would not leave a paper trail. Searching out even the most basic information from government departments has been bureaucratic torture. Using the courts, I eventually gained partial access to my file. But Oranga Tamariki decided some of the documents they held were not classed as adoption records. They quoted the Official Information Act and the Privacy Act and a 1984 judgment of the High Court – yet that case was not about adoption. It was about a mother trying to obtain her file from a solicitor.

Denhardt says the judge concluded that “private papers”, held by a solicitor on file on their own behalf or on behalf of their client are not “adoption records”. Unless there are duplicate copies held on the Court file or by Oranga Tamariki, such documents are outside the scope of the Act and thus out of reach.

Like many adopted people, my desire for these documents is not about a good or a bad adoption experience. It is about being denied a biological identity and heritage and the impact of being deemed the biological offspring of people I am not related to. To be the first of my line – a person with no lineage, no history, no blood relatives – is a burden. My firstborn daughter was the first relative I ever laid eyes on. I carry a sense of loss that I do not own a single heirloom held together with handed-down stories. If these facts are anathema to what makes us human and if connection to heritage is intrinsic to everyone’s identity, then this is our moment.

Except, it’s not.

100,000 excluded

The law reform team at the Ministry of Justice explains it like this: “… the adoption law reform work currently underway is forward-looking and focuses on creating a new adoption system that is child-centred and has practical measures to safeguard their rights, best interests and welfare.” They exclude people created using surrogates and foster children, leaving a declining number: just 111 children entered the adoption system last year.

The team reassures us this forward-looking process will be informed by the past and the experiences of those who were adopted under the Adoption Act 1955. To enable this, adopted people were invited to contribute to two consultation documents. The second, A New Adoption System for Aotearoa, is available now.

On the surface, this seems like participatory democracy. But the ways adoption law discriminates against adopted people were established in a 198-page Law Commission report, Adoption and Its Alternatives. While some of the report from 2000 needs updating, the critique is solid. Kerryn Frost, Senior Advisor in Family Law at the Ministry of Justice, confirms they had not sought further recommendations from the Law Commission regarding adoption law reform. “However, we do refer to it as part of our research for this work.”

Instead, adopted people are being asked to make the case for reform (for future adoptees) based on their experience. But Denhardt notes this approach can be perceived as reducing adopted people to their stories and their ability to tell them. To be able to engage effectively requires adopted adults to understand not just adoption law, but how multiple (convoluted) statutes such as those involving succession, the Privacy Act, and the Official Information Act, all intersect and affect them. Because, unlike the general understanding of adoption, it is not welfare. Aotearoa already has a system for the care of children ‘in need’ through fostering, emphasising the importance of placing children within their own families. And through forms of guardianship provided under the Care of Children Act. Adoption, which legally and permanently severs a child from their heritage, serves only the purpose of providing a child to meet adopters’ needs.

None of these laws and their impacts is explored in the current engagement. Instead, when questioning the institution of adoption, the team’s response is to individualise. “We recognise that adoption impacts people differently and that the way adoption affects adopted people can change over time.”

Adopted adults often hear versions of this statement. By reminding us other adopted people feel differently, the reform team minimises the fact that multiple legislation treats all adopted people the same, whatever their experience or feelings about being adopted. This attitude risks reducing adoption to anecdotes and opinion when the legal arguments against adoption law are well developed.

“It’s not clear if redress or if even an apology will be available to those who simply regard adoption itself as a form of state-sanctioned discrimination and abuse.”

But all hope of basic human rights being returned to adopted people is not lost. A New Adoption System for Aotearoa intimates there will be future talks with the judiciary about allowing some access to court files. But that slim suggestion on a central point of discrimination does not provide any reassurance to adopted adults.

So other than answering questions in A New Adoption System for Aotearoa, how can an adopted adult be proactive in law reform?

The reform team has the answer. “The Government has decided to wait for the Royal Commission of Inquiry into Historical Abuse’s findings on past adoption practice before making decisions about the appropriateness of redress for past harm.”

In short: take your adoption issues to the Royal Commission. The commission is doing stellar work with the most difficult issues our society is grappling with, and harm caused in adoptive homes fits within their scope. But an adopted person must first have been abused in their adopted home. It’s not clear if redress or if even an apology will be available to those who simply regard adoption itself as a form of state-sanctioned discrimination and abuse.

In mitigation, the reform team says they will consider how the needs of adopted children and people change as they grow older. “In recognising this, I want to reassure you that we will also be considering how the options for creating a new adoption system will impact on those who have been adopted under the current law, including whether and how any of those options should apply retrospectively. This includes consideration of how we address discriminatory provisions in the current law.”

I applaud the intention. But after decades of imposed adoption and the ongoing harsh implementation of long-outdated legislation, that assurance rings hollow. The letter from the team ends with the statement that the need to hear back from the Royal Commission will not prevent the Government from progressing with legislative reform of adoption laws.

In working my way through A New Adoption System for Aotearoa, I find the multiple discriminations at the heart of adoption are obscured. And while adopted adults are ostensibly invited to participate in creating future law, there is, as yet, no clear pathway to address the current law and its continuing impact on the lives of people taken during the Baby Scoop Era.

The commission’s team understand all of this. They know the law. They understand that much of what constitutes legal discrimination is hidden behind the myth of adoption as a social good. And it is this myth they appear to want to preserve.

The central question in A New Adoption System for Aotearoa is ‘what is the purpose of adoption?’ The answer seems to be the same as it ever was – a way of ensuring future generations of infants and children are made available to adults who wish to use them for the purpose of family building.

So, ask me, a 62-year-old woman adopted as an infant, what I want. The answer is simple. I want what the non-adopted have. The same rights to identity, access to all information held on me and the ability to discharge a care arrangement that was never fit for purpose, and perhaps even an acknowledgement of decades of state-sanctioned harm. In other words – full and equal human rights with non-adopted New Zealanders.