‘Consensus’ on gay adoption turns out to be mere defence of status quo

There was a sense of elation in some quarters this week, when both Prime Minister Lawrence Gonzi and Opposition leader Joseph Muscat indicated that they would not be averse to allowing adoptions by same-sex couples: an initiative that would be considered 'progressive' even by the most liberal of global political standards.

Muscat was perhaps more categorical than Gonzi on this point. Asked directly if he agrees with the concept, the Labour leader said that he was personally in favour, so long as the decision was taken in the child's best interest.

"This situation is much better [for the child] than being in an institute or abandoned in any way," he said. However, he also specified that his views in the matter are already upheld in the current legal framework governing adoption.

"We don't need to change any laws because what there is at present is a policy. What is crucial to me is the well-being of the child. If a social worker says it is in the child's interest, then so be it."

But in an echo of the 2010 divorce referendum debate, Muscat stopped short of committing his party to a pro-gay adoption policy platform. And given that Muscat himself does not envisage any changes to existing laws, the upshot is that the PL merely intends to retain the status quo insofar as Malta's adoption laws are concerned... even though the same laws have been variously criticised by social workers for a number of existing anomalies.

But if anyone was looking to the Nationalist Party to address these same inherent problems, they are likely to be disappointed. Asked to react to Muscat's position, Gonzi supplied an almost identical (if slightly more guarded) stock answer. Like the Labour leader, he also believes that the decision of whether to allow a gay couple to adopt or not should be left to a panel of experts, who should decide on the basis of the child's best interests. "Any such evaluation by experts should be free of any prejudice towards any sexual orientation," he added, in what was widely interpreted as an acknowledgement that gay couples should be allowed to adopt children, at least if that is what the experts decree.

All well and good... until you realise that the proposed scenario can only work out in practice if the existing law is amended on at least one of two specific counts.

Legal conundrum

Considering that the law in its present form denies unmarried couples the right to adopt regardless of sexual orientation - even though, curiously, the same law permits single parents to adopt, again regardless of sexual orientation - adoption rights can only conceivably be extended to gay couples if (a) gay couples are legally permitted to marry, thus automatically qualifying to adopt as a legally recognised family unit, or; (b) the law is changed to allow for adoption by unmarried couples, in which case all unmarried gay couples (be they gay or straight) would be able to avail of the same rights as their married counterparts.

In the absence of either of these changes, the only option available to gay couples is to adopt by stealth - i.e., for one of the two partners to present him or herself as a single parent.

It is understood that several gay couples have indeed adopted children through this method. But this can hardly be considered satisfactory from a gay rights' point of view, in that not only are same-sex couples forced to resort to subterfuge to achieve their goal... but one of the two partners would de facto be excluded from the legal rights and obligations over the adopted child: a situation that can give rise to serious concerns, in the event of a relationship break-up (among various other potential circumstances affecting the couple).

Placed in this context, neither Labour nor PN position appears very convincing. With both parties excluding any legislative change in the near future, the situation can only be expected to remain exactly as is regardless of who wins the coming election. This in turn can only mean that gay adoption, even if it enjoys the tacit approval of both Gonzi and Muscat, must by definition remain a clandestine, 'secret' affair.

Exactly how this anomaly can be deemed "in the child's best interest" remains something of a mystery that neither Gonzi nor Muscat has so far even addressed, let alone explained.

From this perspective it would appear also that the 'cautious welcome' expressed by the gay lobby may have been premature. But while the upshot is that both the PN and Labour favour retaining the status quo, their reluctance to commit to a workable reform is also understandable, given the existence of extensive grassroots resistance to this reform on both sides.

Virtually against

Almost immediately after the ambivalent 'commitments' made by the two party leaders, Paul Vincenti, CEO of the anti-abortion Gift of Life Foundation, set up a Facebook group entitled 'No to Gay marriage and Adoption'.

Within days, membership climbed to over 800: and among their number were numerous electoral candidates and personalities on both sides of the political spectrum.

It remains however highly debatable whether these actually joined of their own accord, or were simply added by the group's administrators without their knowledge or consent. One such high-profile member - Paula Mifsud Bonnici, who is president of the Nationalist Party's general council - has since confirmed that her name was added to the group without her permission.

"In my opinion, as long as the child has a loving and caring family it does not matter what is the adoptive parents' sexual orientation," she told MaltaToday, in what effectively echoes Gonzi's position to the letter. "The best interests of the child must always remain of paramount importance."

As things stand, the only party contesting this election on a platform of full equality for gay couples - including adoption - is Alternattiva Demoratika, the Green Party.

"AD is in fact the only party which is fully endorsing all MGRM's proposals," Angele Deguara, spokeswoman for social policy and civil rights, said recently. "We believe that LGBT persons should be treated at par with heterosexual persons in every social aspect including where civil marriage, adoption and the right to IVF treatment are concerned.  Rights, obligations, procedures and criteria which apply to straight persons and couples should also apply to LGBT persons and couples."

Can gays legally adopt children?

The answer is technically 'yes', but only through subterfuge (i.e., whereby one member of the couple poses as a single parent). Would-be adoptive parents are invited to consult government agency Appogg for more details.

The following tips are taken from Appogg's website:

• If the persons who would like to adopt a child are a couple, at least one of them must be 28 years of age or older. This also applies to a single person.
• Between the child and any one of the adoptive parents, there must be a maximum discrepancy of 45 years of age. This also applies for a single person.
• In the case of couples, they need to have been married for 3 years.
• A single applicant can adopt both a boy and a girl.
• Cohabiting couples cannot adopt. Only one person from the couple can adopt and the other person is not obliged to maintain the child and has no rights over the child.