laws Article Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Law Blake Connell Melbourne Law School, The University of Melbourne, Melbourne 3053, Australia; [email protected] or [email protected] Received: 31 May 2017; Accepted: 9 August 2017; Published: 23 August 2017 Abstract: Article 23 of the Convention on the Rights of Persons with Disabilities (CRPD) explicitly includes ‘the adoption of children’ as a right to which people with disabilities are equally entitled. Despite the CRPD having been in force for over nine years, research is yet to consider whether CRPD signatory states have brought their respective adoption regimes in line with their obligations under art 23 of the CRPD. Using the laws of the Australian state of Victoria by way of case study, this article aims to shed light on the difficulties people with disabilities still face when attempting to adopt children. In terms of methodology, this article conducts an interpretive critique of Victoria’s adoption law against art 23 of the CRPD, which it interprets mainly through the lens of the social model of disability. Ultimately, this article finds that Victoria’s adoption framework closely resembles the adoption regimes of many other CRPD signatories, yet it clearly fails to uphold Australia’s obligations under the CRPD. This is both as a result of the words of the legislation as well as their implementation in practice. This article proposes a suite of changes, both legislative and cultural, to bring Victoria’s adoption framework in line with art 23, which it hopes will serve as a catalyst for change in other CRPD signatory states. Keywords: adoption; adoption law; CRPD; disability; disability rights; people with disabilities; social model; medical model; Victorian adoption law 1. Introduction Parenthood is held out to be a transformative part of human life (Chapman et al. 2015). It is therefore unsurprising that many people with disabilities desire to be parents (Shakespeare et al. 1996; Frohmader 2009). While critiques of society’s privileging of parenthood exist, these do not detract from the claims of people with disabilities to this right (Warner 2000). Despite this, recent research has shown that people with disabilities face disproportionate difficulty becoming and being parents—be it as a result of forced sterilisation (Kempton and Kahn 1991; Fennell 1992; Arstein-Kerslake 2015), higher rates of child removal (Llewellyn et al. 2003; Booth et al. 2005; IASSID 2008), over-representation in out-of-home care (Australian Institute of Family Studies 2016) or lack of access to assisted reproductive technologies (Frohmader 2009). Most of this research has focused on supporting the right of people with disabilities to conceive children or to retain custody of children often presumed to be their biological children. Where research has considered the ability of people with disabilities to become parents by other means, it has mostly considered assisted reproductive technologies like in vitro fertilisation (IVF). For example, a recent consideration of parenting laws in a report by the Victorian Law Reform Commission (VLRC 2007) identified disability as a significant barrier to IVF. In contrast, its consideration of adoption was far shorter and identified same-sex attraction as the only hurdle to adoption. Laws 2017, 6, 15; doi:10.3390/laws6030015 www.mdpi.com/journal/laws Laws 2017, 6, 15 2 of 27 Limited research does exist on the discrimination faced by people with disabilities who attempt to become parents through adoption (Wates 2002; National Council on Disability 2012; Fleming 2015). Yet, often this research stops short of critiquing the legal systems that govern adoption, instead focusing on the prejudices of adoption workers and relinquishing parents (i.e., the biological parents of the adopted child). More importantly, no research has considered adoption as a right protected by the Convention on the Rights of Persons with Disabilities (CRPD)1. While art 23 of the CRPD explicitly guarantees the right of people with disabilities to adopt, the question of whether or not CRPD signatory states have actually implemented their art 23 obligations through domestic legislation has so far evaded scrutiny. Now that the CRPD has been in force for over nine years, there is a need for such analysis. This article seeks to fill this gap in research by conducting an interpretive legal analysis of the adoption regime of one CRPD signatory state, and critiquing that regime against art 23 of the CRPD. Using the adoption regime of the Australian state of Victoria by way of case study, this article will argue that people with disabilities are systematically prevented from becoming parents by the legal systems that govern adoption, in breach of their human rights under the CRPD. In terms of structure, Part II contextualizes this article by outlining the strong political, social and theoretical connections between adoption and other threads of disability advocacy. Part III discusses this article’s methodology, namely how it uses the state of Victoria as a case study to explore how the adoption rights are governed through written law. Part IV discusses the theories of disability relevant to this essay, namely the medical model, the social model and Shelley Tremain’s deconstructionist critique of the social model. Part V introduces art 23 of the CRPD which protects people with disabilities’ right to adopt. Part VI provides a break-down of the legal structure through which adoption occurs in the state of Victoria. Part VII analyses Victoria’s adoption regime against the requirements of the CRPD, which it interprets primarily through the lens of the social model. Part VIII provides recommendations for the Victorian Parliament, the Committee on the Rights of Persons with Disabilities and disability advocates and allies to pursue change to Victoria’s adoption regime and more broadly. Part IX discusses the related but tangential issue of ‘passing’, and how the distinction between hidden and visible impairments can further affect the impact of an adoption system on the disability community. While this article may sometimes refer to three broad classes of disability—physical, intellectual and mental health—it makes every effort not to conflate all people with disabilities during the course of analysis, and not to extrapolate broad stroke solutions that do not reflect this diversity within the disability community. 2. Snapshot of Adoption in Australia Adoption is the legal process by which a couple (the ‘adoptive parents’) become the legal parents of a child under the age of 18, replacing the child’s birth or biological parents (which the Victorian legislation refers to as ‘relinquishing parents’). Legally speaking, an adoption order extinguishes all rights of the relinquishing parents in relation to the child (unless it specifically mentions such rights), and entitles the adopted child to all the rights of a biological child in their new adoptive family. This said, there are different types of adoption (and other forms of caregiving), many of which fall outside the scope of this essay. This Part will limit this article’s scope of enquiry to local adoptions. 2.1. Local Adoption in Perspective At the highest level, it is important to distinguish adoption from other ways that non-biological parents may care for children, namely out-of-home care (OOHC). OOHC is a state-based statutory system which includes relative care (where a child is cared for by a relative), foster care (where a child is cared for by an unrelated carer) and residential care (where a child is cared for in a communal 1 Convention of the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008). Laws 2017, 6, 15 3 of 27 residential building). From the outset, it must be stated that the number of adoptions is minuscule compared to the number of children in out-of-home care. In the Australian Institute of Health and Welfare’s (AIHW) latest reporting period, there were only 278 adoptions in Australia (Australian Institute of Health and Welfare 2016). This compares to 11,581 Australian children admitted to OOHC in 2014–2015 (Australian Institute of Family Studies 2016). OOHC can be informal or formal. Informal OOHC is where a biological parent consents to their child going into the OOHC system, whereas formal OOHC occurs as a result of the state forcibly removing a child through a care and protection court order. It is important to establish that biological parents with disabilities, as well as children with disabilities, are both over-represented in the OOHC system (Senate Community Affairs References Committee 2015). While this issue lies outside the scope of the article, future research should focus on this phenomenon, as the rights of such parents clearly also come within the scope of art 23 of the CRPD. Of the 278 adoptions which occurred in Australia in 2015–2016, there are different types of adoption. This article only deals with Australian child adoption, as distinct from intercountry adoption. Local adoptions accounted for 196 (or 71%) of the adoptions in the last reporting period, compared to 82 intercountry adoptions (29%) (Australian Institute of Health and Welfare 2016). While many of the same processes and issues discussed in this article remain relevant to intercountry adoption, intercountry adoption involves less clear-cut Australian regulation, is highly dependent on the Hague Convention and the legal regimes of foreign jurisdictions and involves other complex issues (such as the consent of birth parents) that can obscure the operation of disability human rights. Of these adoptions, some are considered ‘local adoptions’ while others are considered ‘known child adoptions’. Local adoptions are where the adopted child has had no previous contact or relationship with the adoptive parents. In contrast, known child adoptions are where such contact has occurred (e.g., where a child adopted by a step-parent or relative).