Securing the right to adopt

Meet the Scottish born lawyer whose groundbreaking case has secured the right for same-sex de facto couples in New Zealand to jointly adopt.

Stewart Dalley

Lawyer and proud father, Stewart Dalley

Stewart Dalley and his partner say they always wanted to have children but like many gay men, thought it an impossibility. That is until in 2011 when they were investigating surrogacy and met a wonderful woman in Auckland who offered to act as a surrogate at no cost. One year later and the couple’s first daughter was born, followed by their second daughter in 2014.

Knowing that they both could not jointly adopt their children, Stewart - who is a lawyer - looked at taking their case to court. In New Zealand the law asserts that the person who provides the sperm is not considered the father of the child and the surrogate mother’s partner is the other parent of the child - whether they are male or female. 

“While many men in this situation do put their name on the birth certificate along with the birth mother this is technically illegal,” says Stewart. “For our first child we had guardianship and day-to-day parenting orders in place but when our second child was born we filed the adoption application for both children, so up until now we have had no legal relationship with her.”

Stewart says the process that led to the final adoption orders was long; “It began in 2012 with a complaint to the Human Rights Commission alleging a breach of the Human Rights Act. That did not resolve matters so we made a claim to the Human Rights Review Tribunal.

“My case was put on hold while another claim against the whole of the Adoption Act was being determined. That case was heard in November 2013 but no decision has been released yet,” he says.

Frustrated with the delay in that matter, Stewart says he and his partner filed the application for adoption weeks after their second child was born. 

“Just over one year later the court decided in our favour.”

In 2010 the High Court heard an application by a heterosexual de facto couple where it had been argued at the Family Court that the word spouse in the Adoption Act should be interpreted to mean both same-sex and heterosexual de facto couples. 

The High Court held that the word spouse could be interpreted to include heterosexual de facto couples but said there was a significant bar against same-sex de facto couples being granted eligibility to apply for joint adoption because the word spouse was synonymous with heterosexual couples and the Act spoke of husbands and wives. 

“That case effectively laid the ground for what we later argued,” says Stewart.

Stewart says the mere fact that the Court was quick to accept his submissions as made, and the failure of the government to make any opposition argument, gives a clear indication that his submissions were on point. 

“In that, the required societal change has taken place so that there can be no justification to refuse eligibility status to joint adoption applicants simply due to their marital status or sexual orientation,” he says. “This has been shaped largely out of the debate that came with the amendments to the Marriage Act.”

He says securing the right for same-sex de facto couples to adopt is similar in feeling to when we were all given the right to marry the person we love; “It is a further step forward in the continuing evolution of what people consider to be a family.

“It is our hope that in years to come our family will be considered routine."

“Recognition by the State of any relationship not only creates legal rights and responsibilities but contributes towards society’s acceptance of those relationships. Where the State denies recognition of certain relationships it can have the obvious effect of those persons having to forego rights that are otherwise endowed on others. However, it can have more pervasive effects in terms of the treatment those persons are afforded by society generally, and the consequential negative psychological impact such treatment has on individuals deemed unworthy of the State’s recognition. Here, it is hoped the reverse will be the case and positive societal attitudes will be shaped out of the fact that the courts have recognised that same-sex de facto couples can be good parents, and that there is no justification to discriminate against people because of their marital status or sexual orientation.”

Until now, Stewart’s LGBTI advocacy work has mostly been in a work context, the law firm he works for takes on refugee cases that sometimes involve claims for asylum based on fears arising out of a person’s sexual orientation and he also deals with international adoption and surrogacy issues. Having his work and personal worlds cross over, Stewart says has given him pause for thought that he could do more. “So if anyone has something they need help to champion feel free to contact me at Ryken and Associates,” he says.

Stewart says winning the case was a strange feeling, with his eldest daughter asleep on his lap during the hearing he says the couple didn’t know what to expect from the court on the day. “We were prepared for it to be declined and to appeal it to the High Court. So it was a mix of disbelief and relief. A couple of glasses of champagne were had that evening,” he says.

“While we are delighted with the outcome, the fact that it took 25 years from the enactment of the New Zealand Bill of Rights Act to get to this point suggests that there is still a lot of work to be done in New Zealand for the full realisation of people’s basic human rights.

“To that, there can be no complacency. We need to band together and fight such injustices whenever they arise,” he says.

Originally published by GayNZ.com 23rd December 2015; republished with permission.

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