‘… in serving the best interests of children, we serve the best interests of all humanity.’
These are the words of Carol Bellamy, Executive Director of UNICEF from 1995 to 2005 and current President and CEO of World Learning. For Bellamy, creating a world that is truly fit for children ‘means building a world in which every child can grow to adulthood in health, peace and dignity’, having access to education, sanitation and protection.
The UN Convention on the Rights of the Child (UNCRC) advocates that children’s best interest must be a top priority in all decisions and actions, and that all children have the right to life, protection, health, education, leisure and culture, care and freedom of thought, belief and religion. In many cases, children lack these rights because of armed conflicts, complex family structures, lack of resources or abuse. In such cases, governments should protect the child’s welfare, which might mean taking him or her into foster care and, subsequently, adoption.
Children who enter the foster care system have usually suffered from abuse, either physical or sexual, neglect or abandonment. In other occasions, they can be placed into foster care voluntarily by parents or if the parents are incarcerated and there are no family members or friends available to care for them. They could also be placed into foster care after the death of their parents, but this is rare, because often in these cases other family members end up caring for them. Children go through a long legal process before the Courts order that they should be placed into foster care or adoption. This affects the age at which the child is taken into a new family.
According to Dr John Simmonds, Director of Policy, Research and Development at CORAM, an organisation committed to improving the lives of vulnerable children and young people, as most children are adopted between the age of one and two years old, they ‘are likely to have suffered some degree of abuse or neglect and sometimes very serious degrees of abuse or neglect, which is likely to have an effect on their development and recovery both in the immediate and short term.’
Under the UNCRC, Article 21 establishes that governments must oversee the process of adoption to make sure it is safe, lawful and that it prioritises children’s best interests. But, do all governments do what is in the best interest of the child or do their beliefs interfere in the process?
Russia does not recognise same-sex couples, and in 2013 Russian President Vladimir Putin signed a law banning the adoption of children by same-sex couples in the country. Only a year later, in 2014, Russian Prime Minister Dmitry Medvedev signed an order that banned the adoption of Russian children by foreign same-sex couples as well as single citizens of any country that allows same-sex marriage.
Russia is just one of many countries putting up barriers for Lesbian, Gay, Bisexual or Transgender (LGBT) adoption. In China, adoption by same-sex couples is prohibited, and single parents must swear that they are not gay or lesbian before they can go through the process.
The LGBT community is increasingly seeing its options limited as governments in a number of countries restrict adoption due to religious or political pressures. Joint adoption by same-sex couples is only legal in 26 countries – this represent 14 per cent of the UN States.
In Europe, 16 countries allow same-sex couple to adopt (Andorra, Austria, Belgium, Denmark, Finland, France, Iceland, Ireland, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden and United Kingdom); while in Africa only South Africa allows it. In the Americas, a total of six countries officially support it (Argentina, Brazil, Canada, Colombia, United States and Uruguay), and some territories of Mexico also allow it. Australia, New Zealand and Israel are also part of the short list enabling same-sex couples to adopt.
As well as these 26 countries, another five have legalised step-child adoption: Estonia, Italy, Slovenia, Switzerland (from 1 January 2018) and Croatia. Step-child adoption allows the partner in a same-sex relationship to adopt the biological child of his or her partner, granting them the same rights as biological parents, including custody and visitation rights.
Italy has been one of the latest countries to approve this adoption. The vote in 2016 came after months of debate. Human Rights Watch advocacy director of the LGBT rights programme Boris Dittrich said in a statement that the approval of the civil union law in Italy was ‘a milestone in the struggle towards legal recognition for same sex-couples,’ and added that ‘restrictive adoption provisions for same-sex couples deny some children the legal protection and security they deserve.’
Women in the LGBT community are likely to apply for step-child adoption, as one of the partners might be the bearer of a child through artificial insemination or in vitro fertilisation (IVF), a process that would result in one biological parent and the other without any parenting rights over the child. Therefore, step-child adoption is the best alternative to formalising those rights.
Unfortunately, only a very limited number of countries grant same-sex couples access to step-child adoption. However, there are ways of securing parental rights and safeguarding the child of a same-sex couple through a co-parenting agreement or through a custody agreement.
Co-parenting agreements state that although only one is the legal parent, both partners consider themselves equal co-parents with shared rights and care responsibilities over the child. The agreement should set out how these rights and responsibilities will be carried out to cover the child's essential medical care, financial support and legal inheritance, and specify how the couples are to share custody in case of a break-up.
Custody agreements, on the other hand, outline the conduct during the relationship and after a break-up, and can, ultimately, provide a non-legal parent with a greater degree of control and decision-making in the event of a separation.
However, co-parenting agreements and custody agreements are not enough protection for the child, especially when they can become non-binding outside of the country in which they were signed.
In order to serve the child's best interests and safeguard his or her rights as well as the parents' rights, no matter if they are a same-sex couple, single parents or a heterosexual couple, more countries should lift their bans on adoption. As Bellamy said that by serving the interests of the children, we serve the interests of all humanity, adoption should be a fair and open process to all candidates, regardless of their sexuality, who can guarantee the child's best interests and protect their rights.