Argument against Same-Sex Adoptions - Research Paper Example

Name: Instructor: Course: Date: Introduction Adoption permits children whose biological parents cannot be able to care of them to be offered with a family environment. Adoption is therefore termed as a legal process through which a child-parent relation is between the biological parents is detached and a new relationship is established with the newly found legal parents and the child. Same sex parenting which occurs through adoption is over time becoming a reality in most countries and Australia has not been left behind. Over time it has been recognized that emotional stability, security as well as the criteria of assessing the best interest in relation to the child been adopted are seen as been crucial aspects in decision making in matters relating to the adoption rather than the form that is applied in relation to the marital status and sexual orientation. In Australia there have been some arguments that same sex couples ought to be allowed to cohabit but they should not be allowed to adopt any children. This paper therefore sets out to discuss the concept and case laws with the used so as to support the arguments that are been made in the paper. Discussion In Australia, the Adoption Ac 1994 (WA) has restrictions on legalities of same sex couples. Under section 20(1) of the Act, adoption should be between a man and a woman who are known and married to each other hence with regard to this section, same sex couples are not recognized in adoption1. In section 20(6) of the Act allows a spouse believed to be a natural parent to adopt children if and only if the spouse is not involved in same sex relationship? On the other hand, it is possible for same sex partners to adopt a child if they are relatives to the child2. What makes same sex adoption impossible is due to the Act that focuses on the gender and the type of marriage that exists between the couples. However such couples who would like to adopt children argue that the Australian law should not focus on the type of marriage as a criterion for adopting but should rather look at the child’s safety and the capability and security of sustaining and supporting the children3 . Not giving same sex marriages the right to adopt would mean that there is still discrimination that exists in the society and giving them the opportunity to adopt does not in any case indicate that they have acquired special rights rather it should mean that there is equality when it comes to adoption. With the introduction of Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (No. 3 of 2002) (WA), saw regulation on restrictions that were there on adoption of children by same sex removed4. It was agreed that the criteria to be adopted to adopt children was the capability that the couples had to sustain the children. With this, the Act sought to look at the emotional security and support that would be given to the children. Though the Family Court of Australia takes much consideration on the nature of parental relationship with the child, looking at the sex couples have should not be a cause of alarm for preventing same sex to adopt children. Taking examples from Australian cases, there is evidence that Australia deems it to be legal for same sex couples to involve themselves in adoption. In a case that was decided years back on the marriage of Marriage of L and L [1983] FLC 91-3535 the Judge Baker J gave permission for a mother who was in a lesbian relationship to adopt four children and her stating that she was involved in such a relationship did not deter her from being allowed to adopt provided she had the capability of providing and taking care of them. Barker held that the mother would provide proper care to them and offer them balanced sexual education which would not make them follow the relationship that the mother had chosen. The same judgment was applied by Judge Hannon J in a case of Doyle and Doyle (1992) FLC92-286 6In judging a case of whether homosexuals should adopt children, the Family court, should block same sex only if it would affect the capabilities of the couple in the process of providing proper welfare of the children7. The first judgment made that supported same sex couple in adopting was in a case of W v G (1996)20Fam LR 498 where two women who had been separated for eight years with two children. The plaintiff by the name of Wendy had the children biologically but was seeking compensation from Grace the defendant an amount totaling to $150, 000 basing her case on the doctrine of promissory estoppels9.Sexual orientation therefore whether lesbian or gay should not be a prediction that there will be bad parenting because the feeling of having children is not based on the relationship one is in but is based on human feelings10. The strongest point that is made by proponents of same sex is that there are thousands of children who need to be adopted. Even though standards of care between opposite sex couples and same-sex couples may differ, a home for a needy child is better than none. In the period 2010-11 there were only 384 official adoptions in Australia11. This was the lowest numbers of adoption to have been completed in history, reflecting a worrying statistics to stakeholders who would like to see more children adopted. Most people who are concerned about the welfare of children argue that if same-sex couples are allowed equal adoption rights more needy children will be adopted in Australia. Argument against same sex Adoptions According to recent research that supports parenting by same sex couples is defective and uses questionable methodology to arrive at the conclusion that the best interest of a child can be served if they are adopted into same couple homes12. There have been claims that the faulty methodologies used in these study are have led to biased results that show same sex couple raise children equally well or better than opposite sex couples13. One of the arguments proposed by those who are against adoption by same sex couple argues on the basis of the structure of a family. It is presupposed that the best interest of children is served in a family where there is a father and a mother. Same-sex couples cannot provide equal care to that provided in families with both parents. Nature bestows on a mother and father qualities that make child rearing in this ideal setting better than in homes that have parents of the same gender14. Children who grow up in same-sex unions are confused about their sexual identity. A father provides discipline at home; determining what can be done or cannot be done. The role of a mother is to lovingly guide his children to know what is right or wrong. In a family where both parents are absent this balance is upset and it has been shown that children who grow up without either parent are lower achievers in life15. Secondly, those who oppose adoption by same-sex couples have quoted the human rights of children as a potential barrier to adoption by same sex parents16. According Katherine Hunt, the Adoption Act 2000 (NSW), the human rights of children should take precedent over all other consideration while considering prospective parents17. Since nature creates children to have a male and a female mother, a relationship which does not have one of the parents violates a child’s basic right to a mother or a father. According to Lisa Neff, the call to end discrimination against same-sex couples in Australian law does not prioritize the rights of Children over those of adults18. Thirdly, it can be argued that since same-sex couples cannot bring up children biologically they do not deserve a right to parent children. This argument is refuted by proponents of same-sex adoptions who say that marriage is social construct rather than a biological construct19. However, it is true marriage serves the biological purpose of producing children and it can be reasoned that other ways of bringing forth children are controversial. These methods include cloning and those who oppose same-sex adoption will lead to same-sex couples resulting to these methods to reproduce children20. Opponents of same sex adoption also argue that same-sex marriages will lead to creation of a generation of children that do not know their biological parents21. If same-sex couples are given the same right to adopt children, the opinion of biological parents will have to be disregarded. To prevent occurrences where biological parents resist the adoption of their children by same-sex couples they would have to cut their link with the children22. This leads to the unfortunate situation where children grow up without knowing their biological parents or roots. Conclusion Based on the discussion above that related to adoption by same sex couple it is evident that people have different views in relation to same sex adoption. Most of the territories in Australia are in opposition for same sex adoption. The law states that in cases of adoption the couple ought to be a married woman and man thus same sex marriages are not entitled to adopt children. One aspect that makes same sex adoption hurdle is in relation to the acts that tend to focus on the type of marriage as well as the gender of the interested couples. Over time some amendment have been made and it is now allowed that same sex couples can adopt a child. The main reason that the act was passed was look for the emotional stability and security of the child and at the same time reduce the number of children residing in the streets and in children homes. Based on a number of case laws from Australia it is evident that Australia allows same sex couples to adopt children for example in the marriage of L and L ,the judge allowed a mother who was in a lesbian relationship to adopt four children despite her stating that she was involved in such a relationship. Despite having a considerable number of case laws which permits same sex adoption there exist another group that is against it. With most of them claiming that children who are brought up in families with a father and a mother tend to be better as compared to those are raised by same sex couples23. Other opponents also claims that the allowing of same sex couples to adopt they violate human rights of the children since children are supposed to have a father figure and a mother figure in the house24. To sum up same sex couples ought to be allowed to cohabit but they should not be allowed to adopt children. Bibliography A. Articles/Books/Reports J Millbank ‘If Australian Law Opened its Eyes to Lesbian and Gay Families, What Would it See?” Law’ (1998) 12 Australian Journal of Family 99-139. Katherine Hunt. ‘When Second Parent Adoption Is Not an Option’ (2008) 9 Adoption Quarterly 79-86. Lesbian and Gay law Reform – Report of the Ministerial Committee June 2001 Western Australia. Lisa Neff, ‘The kids are all right’ (2004) 48 Advocate. Margaret Somerville ‘Children's human rights and unlinking child-parent biological bonds with adoption, same-sex marriage and new reproductive technologies’ (2007) 13 Journal Of Family Studies 179-201 Richard Bradley, ‘Making a Mountain Out of Molehill: A Law and Economics Defense of Same-Sex Foster Care Adoption’ (2007) 45 Family Court Review 133-148. Vanessa Lavely, ‘The Path to Recognition of Same-sex Marriage: Reconciling the Inconsistencies between Marriage and Adoption Cases’, (2007) 55 UCLA Law Review 247-291. A. Cases Doyle and Doyle (1992) FLC92-286 L and L [1983] FLC 91-353 W v G (1996)20Fam LR 49 B. Legislation Adoption Act 1994 (WA) Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (No. 3 of 2002) (WA) C. Others Charlotte J. Patterson, Lesbian and Gay Parents and Their Children: Summary of Research Findings (2012) Australian Government, Adoptions Australia 2010-11 (2012) Read More