Thursday, September 1, 2016

[Australia] Victoria Adoption Reforms for Same-Sex & Gender Diverse Couples Commences Today 1 September 2016 [Good & Bad]

There is some good news today in the State of Victoria (plus some very average news!).  The Adoption Amendment Act 2015 comes into force today which allows in most cases the same rights afforded to heterosexual couples in respect of Adoption.  

Whilst it is wonderful news - it is not necessarily good news for Gay Dads who did surrogacy overseas or their Children.

I am reproducing the Media Release from Rainbow Families Council below.  It is a good summary of the general effects and worth a read.  You can read the release here also.

Media Release (Rainbow Families Council)

The Adoption Equality campaign, led by Rainbow Families Council and the Victorian Gay and Lesbian Rights Lobby, welcomes the commencement today of the Adoption Amendment (Adoption by Same-Sex Couples) Act.

“The commencement of the Adoption Amendment Act today is testament to the advocacy, patience and hard work of many Victorian rainbow families. Adoption equality will mean hundreds of Victorian children will be afforded the rights and legal protections they deserve.” said Felicity Marlowe, Co-Convenor of the Rainbow Families Council.

“We wholeheartedly thank the Andrews Government for their commitment to equality for rainbow families. Just like us, the Premier and his Government understand that it is love that makes a family.”

The Rainbow Families Council and the Victorian Gay and Lesbian Rights Lobby expressed their disappointment that the Government’s proposal to remove religious exemptions did not pass the Parliament, and called on the Government to take action to address the religious exemptions in the Equal Opportunity Act.

“We are very disappointed that faith-based services remain able to discriminate against same sex couples who apply to adopt. We firmly believe that children’s rights should never be trumped by the religious beliefs of a state-funded service provider,“ said Sean Mulcahy, Co-Convenor of the Victorian Gay and Lesbian Rights Lobby.

“This reform marks the end to the last Victorian law to discriminate against same-sex couples. We will not stop until all LGBTI Victorians are treated equally in both law and policies.”

Whilst the Government has committed to providing support and guidance for parents seeking to adopt a child born through an international surrogacy arrangement, the Adoption Act still does not provide legal certainty for children living in Victoria born through overseas surrogacy or a clear pathway forward for their parents.

“Whilst the Government has developed a process, it is untested, potentially leaving many children in a legal limbo. It is imperative that both the State and Federal Governments act immediately to rectify this situation,” said Felicity Marlowe, Co-Convenor of the Rainbow Families Council.

“We will continue to strongly advocate to the Government for a better solution for these children and their families.”

What the reforms could mean for children and families

Here’s what some Victorian LGBTI parents and carers say about the reforms:

“Being able to adopt means that my partner and child will be able to have their relationship bound by law and all the protections and rights that we couldn’t take for granted before. It’s a momentous step for us emotionally too; what adoption symbolises as well as what it means on paper,” said Anna Viola, part of a same-sex couple with a daughter in a stepparent family.

“Our young children don’t yet understand the impact for them of this week’s adoption reform. We are bursting with excitement – this means our children may now be eligible for permanent care conversions to adoption. This will give them the assurance that we are both their parents because we love them and want them, not as a function of being in state care and not only until they turn 18. Soon they will be legally bound to us forever, just the same as our biological children, and we couldn’t be happier,” said a mum of four children on permanent care orders.

“Whilst we are excited about the changes to adoption laws in Victoria as they affect LGBTI people, we are very disappointed that the children of gay dads who were born via surrogacy overseas may continue to be denied the right to legal parents in Victoria. We hope that the Victorian Government continue to work with our community to ensure that their mantra of equality is not negotiable is one that includes our children,” said Rodney Chiang-Cruise, a gay dad through surrogacy.


The thing that is very telling for Gay Men who did Surrogacy overseas is that these reforms are unlikely to be of any use to you.  In order to avail ourselves of the benefits of Adoption in Victoria you are most likely going to have to go through a costly Federal and/or State court case - and the result of which is highly uncertain.  Unfortunately, whilst the Victorian Government has committed to help Gay Dads via Surrogacy, the reality is that you will mostly likely be one your own as you challenge the laws and fight for legal recognition through the courts.  I am hopeful that the IAV department will be able to assist and facilitate any such "test case" - but the jury is out on that one at the moment.

The Government have released a FAQ sheet which underscores the mess that applies to one of the largest and growing groups of gay parent groups in Victoria.  See also Department Website here.


International surrogacy and adoption

Can I apply to adopt a child born through an international surrogacy arrangement?

Yes, you can apply.

However, it is not clear whether the Adoption Act 1984 permits adoption of children born through international surrogacy arrangements by their intended parents. Adoption applications in these circumstances have not been tested in Victorian courts.

Prospective applicants may wish to seek legal advice on options for resolving uncertainty.
Intercountry Adoption Victoria (IAV) will handle queries in relation to adoption in the context of overseas surrogacy and is providing extra resources to handle these queries, including providing initial, specific advice and guidance for parents applying to adopt in this situation.

Contact Intercountry Adoption Victoria on or (03) 8608 5700.

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