HIV adoption rules ‘marred by discrimination’

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16 Jan 2019

An Australian HIV law expert says the process of adopting HIV-positive babies from overseas countries is marred by discrimination, and hopes this will change under new moves announced by the government.


Alexandra Stratigos, a solicitor with the HIV/AIDS Legal Centre in Sydney, says the process faced by Australian couples hoping to adopt such babies is unnecessarily difficult.

“It’s necessary to have safeguards ensuring the protection of children. But I don’t think a child’s HIV status should be a barrier to their being adopted under the inter-country adoption program, which it currently is.”

Ms Stratigos estimates there are only a small number of couples in Australia who have adopted HIV-positive babies from overseas. Since 2009 the HIV/AIDS Legal Centre has assisted about five couples.

One of those couples, Mary and David Ferguson*, say the process is emotionally exhausting.

Both doctors, the Fergusons were living and working in China when they came across the tiny girl who would become their daughter.

The baby, whom they named Claire, was isolated and alone in a group home for orphans.

She had advanced HIV, and staff at the home were terrified of caring for her.

“There was a lot of fear among the staff,” Mary recalls, “rumours you could catch HIV through breathing.”

“We advocated to get Claire to the city where we were living and get treatments started, which we achieved.”

A short time later they fostered Claire into their home and her condition improved greatly. Only a year later the virus was undetectable, a remarkable turnaround that is common among children suffering the disease.

But when the couple decided they wanted to adopt Claire and move back to Australia with her and their two biological children, red tape sprung up in every direction.

Road blocks

Most inter-country adoptions in Australia come under the Hague Convention on Protection of Children and Co-operation in Respect of Inter-country Adoption.

Countries party to this convention include China, as well as India, Colombia, Sri Lanka and Taiwan.

Couples looking to adopt an HIV-positive child often fall under the convention’s “expatriate adoption” bracket, where expatriate Australians who have been living overseas for at least a year and want to adopt a child to bring into Australia.

But the process is by no means simple.

Like all adopted children, HIV-positive babies are subject to health criteria set out in Australia’s Migration Regulations 1994.

The regulations stipulate that applicants must be not have a disease or condition which would result in an undue cost to the Australian community in terms of health care. Any cost over $40,000 for the life of the visa is considered significant – therefore, under the current frame work, any HIV positive applicant for a visa will fail the health criteria.

This provision can be waived but Ms Stratigos says the process is often “dragged out”, causing long delays in the adoption process.

When adopting Claire, the Fergusons found that Australia usually accepted only healthy children.

Organising the paperwork and approval of both the Chinese and Australian governments was lengthy, and the adoption took between 12 and 18 months to complete.

As well as a large financial cost, there was an immeasurable personal cost.

“We had a child who was part of our family and we were very attached to her and she was extremely attached to us,” Mary says. 

A desperate need

For the Fergusons, the experience highlighted a greater issue: how difficult it was to adopt children who were desperately in need of homes.

“There are many people who say, ‘I’d adopt if I could, but I can’t because the child has special needs’,” Mary says.

She puts the restrictions down to both Australia’s Medicare system and governmental reluctance to wear the costs of the children’s healthcare needs. She points out that in the United States – under a private healthcare insurance system – where inter-country adoption of HIV-positive babies is common.

Mary says that Claire, who’s now in primary school, faces many hurdles in her day-to-day life, and people are often fearful of what will happen if she falls or cuts herself and bleeds.

But the risks are low.

“We say, one, she has no virus that’s detectable from blood tests. And, two, worldwide there’s never been a case of HIV being contracted from someone interacting with a positive person in a normal family environment.”

It’s her hope that the Coalition government’s announcement will reform adoption law to make inter-country adoptions easier for Australians includes special needs children.

“The only way I can see Australian families adopting from China is if they accept special needs kids. There are not hundreds of healthy kids waiting for families.”

Claire is testament to the success of such adoptions.

“Her quality of life is fantastic,” Mary says. “She sees a specialist every three months and has a blood test, which she complains about. She does all the things a normal kid does.”

A spokesperson for the Department of Prime Minister and Cabinet told SBS in a statement: “The inter-departmental committee announced by the Prime Minister will examine a range of issues and will consider these in early 2014.”

No further details were provided.

*Some names and personal details have been changed for this story.

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