Iain Middleton
The Humanist Society of New Zealand has made a submission to the Ministry of Justice in response to a discussion paper released in August 1999 called for public submissions and titled Same-Sex Couples and the Law. Here we detail how we responded to the call.
New Zealand Humanist No 144, December 1999, listed the 16 specific questions asked in the discussion paper and discussed the issue from a humanist perspective. The issue was discussed at the Humanist Summer gathering in Wanganui in January. Following that a special interest group was formed with National Council and Wellington branch members of the society. This group discussed the issue further, pooled ideas, and prepared a draft submission that was approved at a National Council meeting on the 2 April.
The issue arose from work done on the Consistency 2000 project that sought to identify areas of the law that did not conform to the Human Rights Act 1993. This Act added discrimination on seven new grounds including sexual orientation to the original six prohibited grounds that included sex. The government was however given a temporary exemption, until the year 2000, to examine existing laws and amend any conflicting legislation. Another factor was the apparent inconsistency of the courts that refused in one court to recognise same-sex marriages even though they were not specifically excluded by legislation - the Judge found that to do so they would require a guide from parliament - while another court found that a lesbian partner was responsible for the maintenance of her former partner's children as though they had been married.
In making our submission we pointed out that we are a secular organisation representing non-theistic people, that the last census indicated that some 35% of the population did not indicate any religious belief and that 25% claimed to have no religious belief, and that we considered that the issue was primarily a human rights issue. We pointed out that the United Nations Declaration of Human rights gave all people equal rights to free and consensual marriage and that the United Nations Human Rights Committee has affirmed that the declaration also encompasses equality for gay, lesbian, bisexual and transgendered people and is applicable to these people.
We stressed the Humanist Society's long involvement with human rights and opposition to discrimination against minorities and outlined our involvement with the International Humanist movement through the IHEU; that the IHEU had endorsed the United Nations Declaration of Human Rights at the first opportunity to do so and that the IHEU had passed a resolution in Mumbai in January 1999 that called on governments to "afford same-sex partnerships the full protection of the law, equal to marital, and other legally recognised mixed-sex partnerships, with regard to pension, inheritance, taxation, and social security, custody and adoption, donor insemination and other services, in which discriminatory policies and practices currently exist".
Marriage
In answering the specific questions we considered that marriage was a matter
of personal choice and recommended that same-sex couples should be given the
same right to marry as opposite-sex couples. We considered that any other
answer would be discriminatory and could not be justified. The law allows
discrimination if there is a positive reason for doing so but we considered
that none existed in this case.
We did not accept that marriage must be restricted to opposite sex couples because most dictionaries define marriage as being between people of opposite sex - history records marriages, including Christian marriages, between same-sex people and the law may define marriage as it sees fit. Similarly we did not agree that marriages are sacred or for procreation - we allow people who know they are infertile or beyond reproductive age to marry.
Consequently we rejected registration as an alternative to marriage. Legislation currently recognises married and de facto relationships. Registration would give all the legal rights of marriage except the right to be recognised as a married rather than a registered relationship. We pointed out that creating the third alternative of registration for same-sex couples only while denying them marriage was not only discriminatory but likely to become entrenched in the law and difficult to change in the future. We considered however that if registration was to be introduced, and several countries have gone this way, it should give all the same rights, benefits, and disadvantages of marriage and be available to opposite-sex couples as well as same-sex couples to reduce its discriminatory aspects.
Children
To the questions regarding children we answered in the affirmative and
considered that same-sex couples should be given the same rights as
opposite-sex couples. Our answers were however qualified by the need to
update existing legislation including the adoption law, laws relating to
assisted human reproduction, and other relevant laws.
The present adoption law passed in 1955 is currently under review by the Law
Commission and is significantly out of date in many areas. The act requires
that all adoptions shall be closed adoptions where the child and the adopting
parents are prevented from knowing the genetic parents and the genetic or
birth parents are prevented from knowing the whereabouts of their child once
it has been adopted. This was considered desirable in 1955 but is out of line
with current thinking and with both Maori adoption practice and current
practice that favours open adoption. United Nations conventions require that
the best interests of the child shall be considered and recognise that the
child has rights but these requirements are not included in the 1955 Act.
Apart from prohibiting a single male applicant from adopting a female child,
except in special circumstances, the 1955 Act requires that applicants to
adopt are fit and proper persons and are of sufficient ability to bring up,
maintain and educate a child but gives no guide as to who might be a fit and
proper person. To decide who is a fit and proper person the court commissions
a report from a social worker. Most of the decision making is done by the
social worker and there are very restricted rights of review. Anecdotal
evidence suggests that in the past church attendance may have been used to
measure a couples fitness to adopt! We therefore considered that the law
should be upgraded to ensure that the best interest of the child are
paramount, to protect the rights of the child and to more closely define the
grounds for refusal. This would also bring the law into line with our
international obligations.
We supported the right of same-sex couples to jointly adopt children, to joint legal parent status, and to be joint parents of a child born from assisted human reproduction techniques that they both agree to on the same basis as opposite-sex couples provided that our adoption, assisted human reproduction, and other relevant laws were updated to conform to our obligations under the United Nations Convention on the Rights of the Child, signed by New Zealand on the 13 March 1993, and the provisions of the United Nations Declaration on Social and Legal Principals Relating to the Protection and Welfare of Children, adopted by the General Assembly on 3 December 1986, that New Zealand helped formulate. To conform to these Declarations and Conventions we considered that the laws should be amended to: 1. ensure that the best interest of the child shall be paramount; 2. give the child the right to know both genetic parents, 3. ensure that couples adopting a child together or making use of assisted human reproduction shall have a long stable relationship of at least two years duration; 4. that when couples adopt a child or use assisted human reproduction, either one parent shall be a genetic parent or a close genetic relative or if this is not possible the best interest of the child, particularly the child's need for affection and the right to security and continuing care, shall be paramount; 5. that when parents are selected the child's interests and safety shall be ensured by considering such factors as age or inability to care for children, a history of mental instability, alcohol or other drug abuse, crime, violence, sexual abuse, rape, child abuse or molestation, and paedophilia, as grounds for refusal.
It is of interest that most child abuse is carried out by fathers and that Daly and Wilson found, 1994, that a father is between forty and a hundred times more likely to kill a child that is not biologically his own, such as a foster or adopted child (killing is the most extreme form of abuse). From this it might be expected that the safest environment for a child is a stable home with two female parents and no male present. A home with a sole female parent may also be safe but it is often found that sole mothers have male friends or a series of male friends who are likely to abuse her children.
We recommended that the law on custody and access be changed to recognise same-sex relationships.
Parental leave, income support, tax credit entitlement, and legal
aid.
We considered that same-sex couples should have the same right to parental
leave, income support, tax credit entitlement, and legal aid as opposite-sex
couples but only if they are given the same rights as married couples in all
other areas. Altering the law to treat same-sex couples the same as
opposite-sex couples in those areas that would disadvantage them while
denying them benefits in other areas would be an injustice. Justice is served
by treating all couples equally in all areas.
Property.
We recommended that same-sex couples should be treated the same as married or
de facto opposite-sex couples as applicable when property is divided after a
relationship breaks down. We agreed that the law be changed to recognise
same-sex couples when a partner dies without a valid will and that same sex
couples should be able to make claims against the estate of a dead partner
who hasn't properly provided for them.
We also recommended that The Holidays Act 1981, The Coroners Act 1988, and Jury Duty, should be altered to recognise same-sex couples.
We are optimistic that laws will soon be amended to reduce the discrimination against same sex couples that exists with our present laws.