As far as I'm concerned, preventing gays from adopting is as morally repugnant as stopping mixed-race couples from marrying. But our adoption laws are a bit more complex, and outdated, than just this one issue

I took special interest in the recent speech by the Acting Principal Family Court Judge Paul von Dadelszen, in which he called for a fundamental overhaul of New Zealand's adoption laws. (You can download a pdf of the full speech from here—there's a lot more in it than the media reports cover.)

You see, it was just over a year ago that my wife and I first brought home our adopted daughter. This was the happy ending to a long, sometimes traumatic, occasionally frustrating, yet also incredibly eye-opening road. We set out on it in a state of somewhat trepidatious ignorance. We came to its end almost evangelical in our desire to tell people all about what we'd learned.

That's because much of what we assumed when we began our journey turned out to be completely wrong; misapprehensions we've subsequently found to be widespread amongst our friends and acquaintances. So Judge von Dadelszen's call to rework the basic law on adoption is a good opportunity to talk about some of these issues.

First up, most adoptions in New Zealand aren't what you probably imagine when you think of "adoption"—a woman deciding to give an unwanted child up to the care of strangers. In fact, these sorts of adoptions are now very rare; Judge von Dadelszen quotes the figure of just 91 in 2001 for all of New Zealand. Instead, most of the adoptions that take place each year are inter-familial. Examples are where a step-mother or father becomes legally recognised as being a child's "parent" (rather than as being his or her guardian), or where a whangai adoption is given full legal recognition. These kinds of adoptions involve reordering legal rights and obligations to reflect the reality of reconfigured family arrangements—they are a case of the law following after the facts on the ground.

Second, even where an adoption is a "classic" case of a child going to a stranger, the decision of who the child's parents will be remains very much in the hands of the birth mother. It isn't a case of there being a waiting list for children, or of the State assigning children to prospective parents based on some idea of who bureaucrats consider "the best sort of parent". Rather, the birth mother—and it's primarily the birth mother as the birth father usually is long gone from the scene—selects who she thinks will be best from a wide selection of "adoption profiles". It's only after this step takes place that the prospective adoptive parent even knows they are being considered. Having put one of these adoption profiles together, I think of it as the most important C.V. a person will ever have to create.

This then leads to the third point. The State, in the initial form of Child, Youth and Family and the Family Court thereafter, plays only a very general gate-keeping role in the process. So long as you meet certain basic criteria (such as being able to care for the child materially, provide him or her with a stable and loving family environment, and not pose a threat to his or her wellbeing), then you will be eligible to adopt. And so long as the birth mother of the child (and perhaps, although rarely, the birth father too) decides you are the best option for parenting the child, then you will in practice get to adopt him or her.

With one exception. A couple can only make a joint application to adopt a child—that is, to both become recognised in law as a child's parents—if they are "spouses". The way this term has been interpreted by the courts requires the couple to be married (not civil unionised, or long-term de facto ... only married will do). And, of course, under our law a marriage still can only take place between a man and a woman. Which altogether rules out gay couples jointly adopting a child.

Now, this doesn't mean gay people can't adopt children at all. They can do so, as individuals, provided they meet all the other legal criteria. It's just that if a gay person does adopt, their partner (even if civil unionised, or having lived together for years) cannot get recognition in law as being that child's "parent". Similarly, if one member of a straight couple adopts a child, the other cannot do so ... unless they have got a piece of paper declaring them to be "married" (but not civil unionised, mind).

This is one, but only one, of the problems that Judge von Dadelszen identifies with the present law contained in the Adoption Act 1955. It's the one that has caught the media's attention—I guess the headline "Judge: Time to let gay couples adopt" gets more eyeballs for advertisers than does "Judge: Inter-country commissioned adoptions pose real difficulties for the law". Predictably, it's also attracted the ire of Bob McCoskrie and Family First. Perhaps it would help sooth their concerns if gay adoptive parents were to promise to regularly use smacking as a part of their parenting techniques? Or perhaps they could learn a lesson in tolerance from the arch-conservative example of Ted Olson.

But the single issue of gay adoptions shouldn't distract us from a wider point. Our adoption law was written at and for a time when "adoption" primarily meant unwed mothers giving birth in shame, handing over their child to the authorities, who then placed it with strangers whose identity would forevermore remain secret. This no longer is what "adoption" means in our society, with the consequence that our law is way out of step with societal practice. When that happens, the law needs to change. And that is the primary message that Judge von Dadelszen is giving.