14 Jul 2022

Growing pains: Our outdated adoption laws

From The Detail, 5:00 am on 14 July 2022

Times have changed since Aotearoa's adoption system was written into law in 1955. Where once they removed all records of biological parents, there are now calls for the Ministry of Justice to give adopted children greater access to information about their birth family and culture, and support in reconnecting.  

silhouette of mother and daughter holding hands in sunset nature

Photo: 123rf.com

When Erica Newman's mother was growing up, the other kids at school had questions. 

They wanted to know why she was brown when her parents were white.  

She was seven years old when she found out she was adopted – but Newman says it wasn't until her mother was older, with children of her own, that she was driven to find answers. 

"She always had a questioning and wondering about her taha Māori, understanding that side of her family and her identity," says Newman, who is now the coordinator for the indigenous development programme at the University of Otago. 

It was 1997 when her mother made a request through the Adult Adoption Information Act, almost 50 years after she was adopted. There was just one name for her Māori father in the records and it could have been a first or a last name. But because of privacy laws protecting the identities of biological parents, the name couldn't be released. 

Newman says not knowing made her feel disconnected from her whakapapa. When filling out the census, she would jot down 'Māori' for ethnicity, and then she had to tick the box: 'iwi unknown'. 

New Zealand's adoption laws were written in 1955. Finding information about birth parents as an adopted child can be a difficult journey, sometimes an insurmountable one.  

After decades of lobbying from affected children, parents and whānau, the Ministry of Justice announced earlier this year that they would finally look to reform the system. Changes mooted include an automatic right to obtain birth records, and supporting an adopted child to reconnect with their birth culture. 

Professor Mark Henaghan, who teaches family law at the University of Auckland, tells The Detail that society's attitude to adoption has changed since 1955, and the legislation just hasn't caught up.  

He explains that the laws were originally designed to protect wealthy families from the claims of any illegitimate children. 

"In those days, when a child was born outside marriage, it was illegitimate. It meant that the child wasn't recognised by the law," he says. 

"It was also seen as shameful to have a child outside marriage. And there was the concern of who's going to pay to look after the child if it's born outside marriage? 

"So, for the state, if you have adoption, it means that you've got guaranteed people to take on the financial burden. And it meant that the birth parents didn't exist anymore, they weren't recognised, nothing on the birth certificate. In fact, the records were hidden." 

The law doesn't recognise same-sex relationships, de facto relationships, or whāngai adoptions – a Māori practice similar to adoption where a child lives with other members of their whānau besides their parents.  

As a result, many tamariki Māori ended up adopted in the Pākehā way, losing connection to their culture. 

"Māori children got caught between not knowing their whakapapa. They were often adopted into Pākehā families, and they didn't feel comfortable in the Māori world, and they didn't feel comfortable in the Pākehā world,” says Henaghan. 

Newman says whāngai adoption is often equated to Pākehā adoption, but they aren't the same. 

"Māori didn't do adoption before these European laws. Whāngai is a kinship structure," she says. 

"It was common practice for the eldest grandchild to live with the grandparents so then they would actually be given the knowledge of whakapapa. 

"The only similarity is that it's not necessarily the birth parents raising the child, but it is always family. 

"The idea is that their mana is enhanced, not reduced." 

Henaghan says it's positive that the government will consult with Māori on the shape of the adoption reforms, especially when it comes to whāngai and its incorporation into the Pākehā legal system. 

"Like the late Moana Jackson would say, it’s a Māori concept, so it should be dealt with by Māori, for Māori. 

"In 1988, when they had a big plug at reform, many Māori said adoption within the Māori world is not an individual thing, it’s a collective thing, and whānau should be consulted and involved in that process.  

"At the moment, it’s just really whether the mother consents – if the father's not living with the mother, he doesn't have any automatic rights."

Consultation on adoption law reform closes on August 7. You can find the details here

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