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Victorian same sex adoption law gets it wrong

By Kristan Dooley - posted Thursday, 29 October 2015

Australia desperately needs adoption reform. What we don't need is poorly-conceived adoption legislation, like the same sex adoption Bill recently introduced into the Victorian Parliament, which will result in future governments apologising to a generation of angry and grieving birth mothers and fathers.

The Bill removes protections under anti-discrimination laws to exempt faith-based adoption agencies from having to facilitate same sex adoptions. In its attempt to address the concerns of one minority group the proposed amendment provides the means to ride roughshod over the rights and freedoms of people who may have no personal need of the same-sex adoption law, but will be unable to avoid its effects.

Good legislation fixes problems without creating new ones. The proposed legislation does not meet this standard.


The Government's refusal to include religious exemptions in the Bill with respect to same-sex adoption attempts to remove discrimination. What it actually does is transfer the discrimination, not just to adoption agencies, but to birth parents themselves.

Irrespective of religious views, there are still many people who, if they had a choice, would like to see their child raised with a mother and a father in situations where they are unable to do so themselves. Birth parents are also entitled to have the choice to work with a faith-based adoption agency if this aligns with their personal beliefs or values.

What the Andrews Government is proposing to do is deny birth parents placing a child for adoption the right to work with an adoption agency of their choice. It is also denying them the right to choose fundamental characteristics of the adoptive parents who will be responsible for her child in future.

The experiences of the 1950s, 60s and 70s, left many women psychologically and emotionally scarred because they felt forced and coerced into adopting out their children in a closed adoption process over which they had little to no control nor involvement. Surely it is not the Government's intention to repeat history and enshrine legislation that is potentially going to give rise to another Stolen Generation?

Last year Women's Forum Australia's published Adoption Rethink a comprehensive review and analysis of adoption practices in Australia and the experiences of those involved. Our research shows that an open adoption process, where the birth parents feel they have some control over the decision and process to place a child for adoption, results in the most favourable outcomes for all concerned. Key to the open adoption process is the involvement of the birth parent in the selection of adoptive parents. Where possible, birth parents must be allowed to have a say over the characteristics of adoptive parents including religious preferences, marital status and yes, even their sex and gender. Birth parents must also be allowed a choice in the adoption agency with whom they work.

We need an improved adoption system in Australia that is primarily focussed on providing vulnerable children with a loving, stable and permanent family. The most positive outcome will also be a system where the rights and concerns of birth parents are recognised and appropriately managed, not dismissed in a misguided attempt to promote the rights of prospective adoptive parents as of paramount concern.


Faith-based adoption agencies should be allowed to continue to operate and provide support to those who have a preference for the services they provide. Those who wish to access same-sex adoption have the choice to go to other adoption agencies, the majority of which have expressed their willingness to facilitate adoption for same-sex couples.

Same-sex adoption legislation in NSW, which allows for faith-based exemptions, provides a better solution. It protects the rights of birth parents who for religious or other reasons wish to work with a faith-based agency while still accommodating those who wish to be involved in same-sex adoption. Victoria's parliament would do well to consider a similar system.

Passing a sub-optimal law is not a successful solution. We must get the balance right to ensure that everyone's interests are served with equal measure.

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About the Author

Kristan Dooley is the Managing Director of Women's Forum Australia, a women's research and education organisation.

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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