Heated debate and controversy swept across the Australian state of New South Wales last week
when a bill granting same-sex couples the same rights under adoption
laws as heterosexual couples was passed narrowly (45 votes to 43) in the
Legislative Assembly (lower house) of its Parliament.
The message that permeated the media was this: that
discrimination against same-sex couples has to stop, and that adoption
is just one more frontier that needs to be conquered. Passionate letters
condemning conservatives and religious beliefs reflected the same theme: one
reader of the Sydney Morning Herald said that “[h]omosexuals are
just as capable of, and entitled to, raising a child [sic]. The same-sex
adoption bill goes some way towards the legitimate and continuing
campaign to give same-sex couples the same legal and social rights… as
enjoyed by mixed gender parents.” While a campaign to stop discrimination against same-sex relationships clearly formed the underlying objective of this
legislation and the undercurrent of debate, the justification for it was
marketed by the slogan: “What matters is loving parents, not their
sexuality.”
Members of Parliament were allowed by their parties to have a
conscience vote, and leaders of both parties voted in favour of the bill. The state premier and self-professed Catholic, Kristina Keneally,
went so far as to attempt to reconcile her position to back the legislation with Catholic teaching. Keneally actually hails from Ohio where she attended the University of Dayton, a Catholic institution. Presumably she did not major in theology, judging from how she mixes snippets of Catholic doctrine on
homosexuality and the morality of sex outside of marriage with
quotes from scripture, mostly taken out of context,
misunderstood and in any case, irrelevant. Needless to say, while
Keneally may have convinced herself of the congruity between her faith
and her stand on the placement of children with same-sex couples, she convinced neither those for nor
those against the amendments.
In any event, what the NSW premier and the media have in common is
this: they have missed the point. What should have been the crux
of this debate — the best interests of the child — was
lost in the strong tide of sentiment favouring the view that the rights of the
prospective adopting parents are paramount and that discrimination against
people of same-sex orientation must be eliminated in every way, shape
and form.
The issue of whether same-sex adoption is in the best interests of
the child is not, in fact, about homophobia or whether prospective same-sex
parents have a “right” to adopt a child. One person who appears to have
gotten this right is Mike Baird, the shadow treasurer of the Legislative
Assembly, whose starting point was “the interests of
children and their needs rather than adults and their rights”. He went
on to criticise the bill as one that puts “the rights of the adults at
the centre… the interests of adults above those of children.”
The central question to be
addressed, said Baird, was not (as Keneally held) whether children needed a loving family; rather, the
issue turned on whether it is in the child’s best interests to be
“effectively barred” from having a mother and a father.
“[I]f it is accepted that a child has a human right to a mother and a
father,” he said in the parliamentary debate, “this is a negative right
in the sense that there is no claim that society or the state are
obliged to provide this, but simply that they are obliged not to help
deprive someone of them.”
The question he raises is one that ought to make us pause: giving
equal preference to same-sex parents and opposite-sex parents that wish
to adopt means that the state has the arbitrary power to
decide whether or not a child is going to have a father and a mother.
Clothing the issue in questions of whether homosexual couples are
capable of giving the child care, love and a stable environment, or whether
homosexual couples could do it better than dysfunctional opposite-sex
parents, and bringing in arguments about where religion stands on the debate
— all of this distracts from the main question.
What we need to ask ourselves is whether it is right that the state be allowed to deprive a child of the chance
to have both a person who fulfils the function of a mother and a person
who fulfils the function of a father, and all that the
collaboration of two people of different genders potentially brings to the
development of a human being. The opportunity to
have a mother and a father is a very distinct and separate issue from
discriminating against people of same-sex orientation, although
admittedly and by its nature, it inevitably does.
While Baird acknowledged the complexity surrounding the debate and
the need to abolish all unjust discrimination, he also pointed out that passing the bill would amount to a “deliberate decision… to negate one biological parent”, which could only be
justified if it is accepted that a child definitively does not need both
a father and a mother.
Baird voted against the law change on the ground that there
was insufficient depth of research to show that there was no
long-term impact on children in same-sex families. Without such evidence he said he could not justify legislating against the “time-honoured practice of
placing children with both a mother and a father”.
“If we wish to make such a dramatic move,” he said, “… we must
be convinced that it is in the best interests of the child. From what I
have read, we are not at this point. Going forward this should lead the
debate, not the need to eradicate discrimination or address legal
anomalies.”
The Legislative Council, which is the upper house of the NSW Parliament
and whose approval is required to make this bill law, is
considering these issues this week. Let’s hope they get it right this
time.
Susan Smithies is the pen name of a lawyer working in New South Wales.
