Over the past decade a number of social, legal, political and economic forces have converged, creating a climate in which same sex couples are raising children in an increasing number. Same sex couples may become parents through a number of ways like heterosexual intercourse, donor insemination or other reproductive procedures, surrogacy arrangements and adoption. For same sex couples, adoption is either in the form of known or unknown but it represents a significant aspect for family formation. Adoption for same-sex couples in Australia is currently only available in Western Australia, the Australian Capital Territory and New South Wales with equal rights that the heterosexual couples have. In Tasmania same-sex couples are permitted to adopt a child who is related to a member of the couple that is known child only. In all other states and territories there is no provision for same-sex couples to adopt. In every jurisdiction same-sex couples and individuals are permitted to provide foster care in Australia. The First same sex couple to adopt the child was in Western Australia in 2002.
2.Amendments in the Adoption Act
Legislation: Adoption Act 1994 s39
●s 39: Married couple or living together in de facto relationship for at least three years.
Couples are as follows:
Heterosexual de facto couples.
Same-sex de facto couples.
Amendment: Interpretation Act 1984 s 13A(1): ‘De facto relationship’ as a relationship other than marriage between two people who live together is a ‘marriage like’ relationship. s 13A(3): ‘It does not matter whether the persons are different sexes or the same sex.’ (Western Australian Consolidated Acts)
Australian Capital Territory
Legislation: Adoption Act 1993 s14
● s 14: A couple ‘who, whether married or not, have lived together in a domestic partnership for a period of not less than 3 years’.
Couples are as follows:
Heterosexual married and de facto couples.
Amendment: s 169 Legislation Act 2001 (ACT) ‘domestic partnership’ is the relationship between two people whether of a different or the same sex, living together as a couple on a genuine domestic basis.’ (Australian Capital Territory Consolidated Acts)
New South Wales
Legislation : Adoption Act 2000 Sections 23, 26, 28 and 30
● s 26 and 28(4): A couple who have been living together for a continuous period of at least 2 years. s 28(4): Heterosexual married and de facto couples.
● s 23(1): ‘Couple’ means a man and a woman who:
(a) Are married; or
(b) Have a de facto relationship.
Amendment: s 21C (1) of the Interpretation Act 1987 de facto partner refers to persons whether of the same sex or a different sex
(New South Wales Consolidated Acts)
Legislation : Adoption Act 1988 (Tas) s.20
● s 20(1) two persons who, for a period of not less than 3 years are married or in a registered deed of relationship.
s 20(1): Married couple
s 20 (2A): Parties in a ‘significant relationship’ But only where the partner is the natural or adopted parent of the child or a relative of the child.
Amendment: s 4 Relationships Act 2003
Significant relationships – (1) Is a relationship between two adult persons
(a) Who have a relationship as a couple; and
(b) Who are not married to one another or related by family.
(Tasmanian Consolidated Acts)
3.What made the amendments in law…
The two main objective of adoption act are
(a) to emphasise that the best interest of the child concerned, both in childhood and later life, must be the paramount consideration in adoption law and practice.
(b) to make it clear that adoption is to be regarded as a service for the child concerned. (Adoption Act 2000 (NSW) s 7)
The best interests of the child in respect of adoption by same-sex couples fell into two broad streams. The first stream emphasized the needs of the child and the structure of the family, arguing that adopted children’s