There has been a whirl of activity on the adoption front in Australia this week. Adopt Change has scheduled a busy program of events as part of National Adoption Awareness Week; there’s a new book out on adoption by Jeremy Sammut; and the Victorian Legislative Council is due to debate the Adoption Amendment (Adoption by Same Sex Couples Bill) 2015 this Thursday.

It is true that Australia desperately needs adoption reform at both bureaucratic and community levels. What we don’t need is poorly-conceived adoption legislation that ignores the real issues and promotes the interests of one sector of the community at the expense of the most vulnerable — in this case the child and the birth parents. Good legislation fixes problems without creating new ones. The proposed legislation does not meet this standard.

The real problem with the current system is that adoption is so difficult in this country that it has almost become impossible. Last year there were only 317 adoptions in Australia, of which only 89 were of children from care – 84 in NSW and just five from other states and territories. This is despite the fact that there are more than 43,000 children languishing in the out-of-home care system, nearly 70 percent of whom have been in the system for two or more years. These are children who have been removed due to physical abuse, sexual abuse and/or neglect with no hope of being reunited with their birth parents.

Because adoption simply isn’t a choice, there are also thousands of women facing a difficult or unplanned pregnancy who go down the path of abortion if they are unwilling or unable to parent their own child. Women’s Forum Australia’s research report, Adoption Rethink, shows that adoption, if appropriately and sensitively managed, can work out well in by far the majority of circumstances and should be a realistic choice for these women.

But despite the fact that the current adoption system fails comprehensively to provide an adequate response to these most vulnerable members of our community, the Victorian government has chosen to focus its efforts almost exclusively on the perceived rights of prospective adoptive parents, in particular same-sex couples.

Adoption should, first and foremost, be a response to the needs of the vulnerable and not simply a means by which families can be created for those who are unable to have children. While prospective adoptive parents should be encouraged to open their homes and hearts to those in need, children are not commodities and we must avoid any situation that leads to the creation of a “market” for children.

Section 15(1) (b) of the Adoption Act 1984 currently provides for birth parents to express a preference in relation to the religion, race and ethnic characteristics of the proposed adoptive parents who are required to have been in a (heterosexual) marital or de facto relationship for two or more years. This is entirely appropriate.

Our research demonstrated that an open adoption where the birth parents feel they have some control over the decisions and process results in the most favourable long-term outcomes for all involved. Key to a successful open adoption process is the involvement of the birth parents, where possible, in the selection of adoptive parents.

The proposed bill will change the Adoption Act so that anyone involved in a “domestic partnership”, heterosexual or otherwise, will be eligible to adopt. However, it makes no attempt to update Section 15(1)(b) to include reference to marital status and gender although these may be just as important as religion, race and ethnicity to the birth mother and even her child.

This is line with the recommendation of the Adoption by Same-Sex Couples Legislative Review that birth parents not be allowed to express a wish about the domestic relationship of any prospective adoptive parents as “to do so would open up an avenue for same-sex couples to be discriminated against”.

Yet, irrespective of religious views, there will be birth parents who want their child to be raised by a mother and a father and they should not be forced to place their child in an adoptive situation that is contrary to their personal beliefs. The experiences of earlier decades left many women psychologically and emotionally scarred because they felt forced or coerced into giving up their children in a closed adoption process over which they had little control. History is set to repeat itself if birth parents are allowed no say in whether their child goes to a traditional married couple or a same-sex couple.

This not only privileges the rights of one group over another; it is not even necessary. If Australians are as open to gay marriage as polls suggest, the majority will also approve of same-sex adoption. This is how public opinion has trended in the United States. So it brings into question why the current government refuses to allow for different preferences among birth parents in the adoption process.

Perhaps they are quietly concerned that, given the choice, many, if not most, members of the community might want their child to be raised by a mother and a father in practice if not in principle.

The proposed Bill goes even further and also seeks to remove exemptions for faith-based organisations in the provision of adoption services to same-sex couples. Again, this provision seeks to prioritise the desires of the adoptive parents over the needs of the birth parents.

Birth parents have a right to work with an adoption agency of their choice, including an organisation that aligns with their religious preferences. Removing exemptions for faith-based organisations means that these adoption agencies which do not support same-sex marriage, will be forced to close, narrowing the options of birth and adoptive parents.

If the Victorian government proceeds with these reforms it must do so on the basis of equality and non-discrimination for all the parties involved. Faith-based exemptions will not hinder same-sex couples’ access to adoption since they are free to seek out the services of another agency. It will, however, protect the rights of birth parents who for religious or other reasons wish to work with a faith-based agency and the consciences of those who believe that children deserve a mother and a father.

The optimal situation for women and their children occurs when children are raised in a safe, loving and stable environment under the care of their birth parents. However, the sad reality is that this is not always possible. Therefore, as a community we need to provide viable alternatives.

Open, respectful and regulated adoption provides an appropriate response to the situation of vulnerable children in need of a loving, permanent and stable home. Adoption also provides an appropriate response to the situation of women who feel unable or unwilling to parent their own child.

The last thing thousands of vulnerable Australian women and children need is laws that make the adoption system even less effective than it is by removing legitimate pluralism and choice. 

Kristan Dooley is the Managing Director of Women’s Forum Australia. She writes from Melbourne, Victoria.