Some Parents Are More Equal than Others: Discrimination against People with Disabilities under Adoption Law

Blake Connell

doi:10.3390/laws6030015

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.

Highlights

Parenthood is held out to be a transformative part of human life (Chapman et al 2015)
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
The difficulty faced by people with disabilities looking to adopt is an important issue in and of itself

Summary

Introduction

Parenthood is held out to be a transformative part of human life (Chapman et al 2015). It is 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). 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). 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. Its consideration of adoption was far shorter and identified same-sex attraction as the only hurdle to adoption

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Conclusion