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Adoption Bill excludes same sex couples

February 24th, 2009 · 8 Comments · Equality, LGBT, Same Sex Partnerships, Social Policy

The Government published proposed legislation last month which discriminates against lesbian and gay couples and heterosexual non marital couples also. In the month since it’s publication I have seen one article in the Irish Times and one reaction from any of the lesbian and gay organisations. I’ve no idea why groups have been so silent – any guesses?

The Adoption Bill 2009 is being handled by Minister for Children and Youth Affairs, Barry Andrews. (Press Release here) The legislation has been long awaited and is especially needed to fully enforce the Hague Convention.

In the interests of clarity, the current adoption legislation is being incorporated into a single piece of legislation, by bringing forward existing provisions into the Adoption Bill 2009 and restating or updating those provisions as appropriate. ‘The result of this is to create a single standard for both prospective adoptive parents and children, regardless of the circumstances or the location of the adoption’ continued Minister Andrews.

The bill outlines the circumstances which will be permitted for making an adoption order or recognising an inter country adoption. Same sex couples are specifically excluded by the mandating of marriage or single parent adoption in specific circumstances as being pre-requisites. Note also the requirement for ‘good moral character’ but no explanation on what that might be!

Section 33 (4)

(4) The Authority shall not make an adoption order, or recognise an intercountry adoption effected outside the State, unless—
(a) the applicant and, if the applicants are a married couple,
each of them has attained the age of 21 years, or
(b) the applicants are a married couple and one of them is the
mother or father or a relative of the child and either of them has attained the age of 21 years.

Section 34

The Authority shall not make an adoption order, or recognise an intercountry adoption effected outside the State, unless the Authority is satisfied that the applicant or, if the applicants are a married
couple living together, each of them—

(a) is a suitable person to have parental rights and duties in respect of the child, and
(b) without prejudice to the generality of paragraph (a), is of good moral character, in good health and of an age so that he or she has a reasonable expectation of being capable throughout the child’s childhood of—
(i) fulfilling his or her parental duties in respect of the child,
(ii) promoting and supporting the child’s development
and well-being,
(iii) safeguarding and supporting the child’s welfare,
(iv) providing the necessary health, social, educational and other interventions for the child, and
(v) valuing and supporting the child’s needs in relation to his or her—
(I) identity, and
(II) ethnic, religious and cultural background,
(c) has adequate financial means to support the child, and
(d) has been provided with appropriate information, advice and counselling concerning adoption.

The full text of the Adoption Bill is available here.

To try to discover the reasons for excluding same sex couples I contacted the Office of the Minister for Children and I’ve spoken with Minister Barry Andrew’s press officer. I was then asked to email in my questions. Despite several contacts I’ve received no reply.

Meanwhile ICTU has called for amendments to the bill including calling for same sex couples to be eligible for adoption and point to a European Court of Human Rights Ruling.

Same Sex couples should be eligible for consideration for adoption: Secondly, we draw your attention to the decision of the European Court of Human Rights that the welfare of children is not served by excluding individuals from being considered as adoptive parents because of their sexual orientation. The case, EB v France, centred on the decision of the French Courts to exclude EB, a French woman, from adopting a child as an individual because she is a lesbian. While Ireland does not exclude individual lesbian and gay people from consideration as adoptive parents, The issue in Ireland is that same-sex couples are excluded from consideration as joint adoptive parents. This impacts especially on the growing number of couples, lesbians in particular, who are parenting children and have no mechanism to establish a joint legal connection with their child, nor does the child have a mechanism to establish a legal claim on both parents. Recognising the primary principle that the welfare of the child is paramount at all times, and that no person has a ‘right’ to adopt, same-sex couples should be eligible for consideration for adoption, subject to the rigorous assessment process for married couples and single adopters already in place. Such an approach is in line with other EU Countries such as Denmark, Belgium, Germany, Netherlands, Spain, Sweden, England and Wales.

The Bill is now going through the Oireachtas having received a second stage reading in the Seanad last week. There were contributions calling for amendment to the bill on the matter of adoption by same sex couples from Senators David Norris and Ivana Bacik.

And finally to find out the reasoning for the exclusion of same sex couples from the Bill we have the response of the Minister to dwell upon.

The right of same-sex couples to adopt is a sensitive issue. Adoption is a right that is afforded to children, and the right of a child to a family is at the core of adoption legislation. There is also a right in my view which must be considered, that of same-sex couples. Their rights need to be explored. The Civil Partnership Bill is the forum at present for the extension of those rights. I am an extremely strong supporter of those rights but this Bill is not the appropriate forum for that. I believe their rights will be visited on another occasion but at present we are in a legislative process with the Civil Partnership Bill. This will afford greater rights to same-sex couples, and rightly so.

The Adoption Bill is clear. It states that if more than one person is to adopt, they must be married to each other. Unmarried, heterosexual couples and homosexual couples are treated in the same way in that they are not allowed to adopt in this country. Single people may adopt in circumstances where they satisfy the Adoption Board about eligibility and suitability. I accept this is a sensitive area and core issue. It is a demonstration of the type of society we wish to live in, and I believe it is something we will continue to debate in the future.

So because same sex couples can’t marry they are not being discriminated against as unmarried heterosexual couples can’t adopt either! Such brilliance in manipulation of the law Minister.  And he mentions the Civil Partnership Bill yet to be published but the heads of bill published last year do not contain anything on the matter of children’s rights and the rights of non-biological parents at all. Maybe the Minister knows something we don’t but he won’t be telling me about it seemingly!

I doubt many lesbians and gay men are even aware that this legislation is going through the Oireachtas at the moment or if they would be aware what to do if they were aware. But if organisations who claim to represent lesbians and gay men are lobbying on the issue it would be good to know what points they are making to protect and strengthen same sex families. Or maybe some other arrangements are being made in the forthcoming Civil Partnership Bill and we should not feel that the Government are discriminating against us?

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