The Problem With Your Lived Experience

Last week we began to dissect the New Zealand Ministry of Justice (MoJ) adoption law reform discussion documents.

Titled A New Adoption System for Aotearoa New Zealand, it ran to 64 pages and was a textbook example of strategic obfuscation, bureaucratic language games, plausible deniability and inference.1

All footnotes are behind the paywall.

We finished on the Ministry’s third statement as to the purpose of adoption. It is, they said: “For a child whose parents cannot or will not provide care for them.”

The statement appears conciliatory but concedes almost nothing - it’s semantic shapeshifting of the highest order. To be fair, the ministry’s discussion document does mention that the government is considering allowing future adoptees to maintain a legal relationship with their parents.

If so, why not utilise guardianship to end the practice of human adoption? That would leave only the singular situation of a child whose parent will not care for them.

The only question that arises from this situation is whether, given that forms of guardianship are available, a child should forfeit their history, ancestry, extended family, name, and identity to meet the needs of a reluctant parent (who unconsciously lives with all those human rights).

In this situation, adoption is a multi-generational, permanent solution to what is often a short-term issue of maternal material insufficiency.

The Ministry of Justice states that it intends adoption to provide equity for a child by focusing on that child, not on the needs of adults (for example, birth parents or adoptive parents).

This is, at best, disingenuous. The lifetime effects of maternal separation are now well known. The supreme importance of the mother–child dyad shows that the needs of birth parents, particularly the mother, are indistinguishable from those of the child.

Whereas the needs of the adopter, particularly the adoptive mother, are hers alone.

And equity with the non-adopted is exactly what the already adopted do not have. Meanwhile, the impossibility of providing equity to a new generation without resolving historical injustice is magical thinking.

And we are back at that conundrum. By not utilising forms of guardianship and welfare legislation for those children who cannot remain with their family of origin, the law-reform discussion documents make it clear that the government intends to ensure adoption continues as a viable option for adults who wish to use non-kin children to build their families.

When an infant is separated from their family for reasons other than immediate welfare concerns, the only benefit is for adults.

For the most part, if you remove the legislation and adopters, there is no adoption.

Shortly after releasing A New Adoption System for Aotearoa New Zealand, the Ministry of Justice hosted a series of focus groups on proposed law changes. The first was via Zoom. I set up at the dining table with a large ensemble painting my husband inherited from his aunt, the British painter Yolanda Sonnabend, as my background.

Yolanda completed the painting in the late 1970s, describing the people in it as her fantasy family. The wife has a prominent streak of grey in her hair that is not dissimilar to my own. She stands at the apex, and her husband, in round glasses and black curly hair, stands at her shoulder. He bears a striking resemblance to my husband. Five daughters are arrayed around them. We are a combined family with five daughters. Painted decades before we joined together, the resemblance between the images on the canvas and each of us is uncanny, and it has become our family portrait.

As the Zoom meeting begins, I turn and gaze at the painting as though to gain strength. For the first hour, I am alone with the two members of the law reform team and their facilitator. After a long-winded introduction by the facilitator, the Ministry of Justice senior advisor for family law says:

I am instantly caught by her use of the word need and by whose need she is referring to. I hold my breath as she continues:

In terms of the options around accessing adoption information, you’ll see we are suggesting that people be able to apply to access their original birth record and their adoption information. We are suggesting that it’s information held by Oranga Tamariki. And how to extend that to court documents.3

She pauses, and into my mind flash all the adopted people I know, trying to access even the simplest information from Oranga Tamariki. And that department’s success in classifying some of my records as “not adoption records”.4

After an attempt to introduce the structural inequalities faced by all adopted people, the senior advisor speaks to me directly:

A little bit more difficult, obviously. Barbara, you will know the difficulties in accessing court information. And so we will be talking to the judiciary sometime about how we can make changes in that space. But we are looking at making sure that that is open and that people do have access to the information about themselves. People will be able to access a long-form birth certificate. When we say accessing adoption information, we are talking about all the information the Department of Internal Affairs holds [my italics].5

And there it is. Not only a brush-off with “sometime” but also of the only part that matters: “When we say accessing adoption information, we are talking about all the information the Department of Internal Affairs holds”.

The writer is referring to here is the “original” endorsed and cancelled birth certificate, plus the long-form birth document, also known as the birth printout.

And nothing else.

But even this statement is undone by the fact that the recently minted Births, Deaths, Marriages, and Relationships Registration Act 2023 states that:

A person seeking access to restricted adoption information” cannot access it until the adopted person who is the subject of the information is dead or 120 years have passed since that person’s birth.6

The talk is not about adoption records per se, such as the notes, comments, memos, letters, and legal forms I eventually received under court order. It is only later that I realise the senior advisor’s comment that I would understand the difficulties was because she had accessed my files. She would know of the arguments and efforts I’d made.

A few minutes later, during the Zoom meeting, the Ministry of Justice’s senior policy adviser says:

“We need to give careful thought to whether any new system should be applied to people who’ve been adopted under the 1955 Act. And you’ve reminded me, I guess, how large that number of people is”.7

I should have replied that, indeed, in 1981, one in thirty-three New Zealanders was an adopted person, each with an extended family and many now with their own children and often grandchildren.8

Our conversation stalls at this point, as an Australian woman running an adoption agency in an Asian country joins our Zoom. She is planning to send children to Aotearoa for adoption.

The entire Zoom interaction makes clear to me that the current focus differs significantly from the recommendation in the Law Commission’s comprehensive assessment of adoption law in Aotearoa in 2000.9

While a number of their recommendations are now dated in concept and language, they were groundbreaking at that time. They included:

“We recommend that adoption records (including court records and Department of Social Welfare records) be open to inspection as of right by adoptees, adoptive parents and natural parents”.10

When I ask the MoJ if they have used that report, the senior advisor replies:

“We haven’t sought further recommendations from the Law Commission relating to adoption law reform. However, we do refer to the Law Commission’s 2000 report, Adoption and Its Alternatives, as part of our research for this work”.11

Later, I asked under the OIA to ensure clarity. A member of the reform team replies, repeating the talking points – forward-looking, creating a new child-centred adoption system, undecided if any of it will be retrospective, and “Informed by the past and the experiences of those, like yourself, who were adopted under the Adoption Act 1955”.12

Asked about using individual experience rather than engaging with structural inequalities, the team member responds:

“We recognise that adoption impacts people differently and that the way adoption affects adopted people can change over time”.13

The team member is correct. Adoption affects individuals differently over time. However, the 1955 Adoption Act, the 1985 Adult Adoption Information Act, and thirteen associated acts treat all adopted people the same way.

By deferring to individuals, the proposed reform does not address the statutory scheme designed to conceal and terminate identity, the barriers to rescinding adoption, the right to return to original identity, intergenerational impacts, secrecy, restrictions, legal discrimination, and mischaracterisation, or the need to conduct lifetime kinship work.

Instead, current legislation asks adopted people to advocate for themselves against a system set up to privilege the maintenance of secrecy. That systym explicity fails to recognise them as victims. Instead, the system views adopted people as lucky, as living with an unearned advantage, and as though we are rescued orphans, saved from biological and social disadvantage.

In short, the legislation ignores the majority of the 100,000-plus adopted people who do not feel empowered to speak up.

Lived experience matters. It is important in qualitative phenomenological research. It is important among adopted people as they learn and gain strength from one another’s experiences. But because of its highly subjective nature, lived experience is also the evidence most easily dismissed.

It is defined as personal knowledge gained through direct, first-hand involvement in everyday events rather than through representations constructed by other people.

Yet human adoption is a paradigm entirely constructed by others.

It proceeds from external, superficial, legislative, and interest-driven structures. It is life experienced through a veil of secrecy.

There are no historical adoption practices. For adults adopted as infants, it is all current.

In total, the ministry’s combined discussion documents attracted 438 responses. Of these, 114 were from adopters, although the reform team said not all adoptive parents may have been identified. 155 were from adopted adults.

I understand the low turnout among my fellows. The adoption law-reform team used semantic techniques of balance and reason while reinforcing the fundamental ideologies of adoption as a social good and the right to form a family with other people’s children. The assumption seemed to be that, through tweaks and creative language, there are ways to improve adoption.

Old adoption in new clothes.

Responding to the discussion documents was a time-consuming, gruelling and disturbing process. There was no reckoning with the past. And tbh, the multiple wrongs revealed in the first document fuelled my desire to focus my doctorate in this direction.

I understand the Ministry of Justice is not entirely ruling out the retrospective use of any new provision, but it is not the focus of adoption law reform. This makes me ask - why does the state want to create new legislation unencumbered by the past?

A few weeks after my participation in the Ministry of Justice’s adoption law-reform focus group, a letter arrives, thanking me for taking part:

“We appreciate your time and the invaluable insights you contributed to these discussions. Please find a $40 supermarket voucher inside, in appreciation”.14

All footnotes are behind the pawall.

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