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Adoption registers: Comments on Bill M-210-1985 & 1986 Addendum

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People who have been separated by adoption have recently made considerable efforts to establish contact with children, parents and siblings from whom they have often been separated for decades. Children who wish to establish their “roots” by establishing contact with their natural parents or siblings, and natural parents who are curious about how their children have turned out, at present have no government agency to turn to for help in identifying the other parties or in obtaining counselling before such a meeting takes place. Thus, they turn to private agencies, often self-help groups comprised of people in a similar position.

But such private agencies necessarily serve the interests of those who wish to make contact, not those who wish to keep their privacy intact; and thus there is a legitimate worry that the interests of the latter are not adequately protected. As well, the state possesses the information and resources that private agencies do not; and so it is likely to be more efficient at pooling the information necessary to make contact possible. For these reasons, many think that the state should be involved in this area. Rosemary Brown has recently proposed a private member’s Bill, M210 – 1985, the “Adoption Amendment Act, 1985”, to deal with these concerns.

While the intentions behind this Bill are laudable, and it is deserving the BCCLA’s support, there are one or two problems that ought to be solved before this Bill should be passed. These problems centre around the right to privacy of the natural parents and the adoptees. The right to privacy of the adoptive parents seems to us to be preserved. Secs. 15.2(2)(a) and (b) specify that adoptive children or their siblings cannot apply to the registry until they are 19, and Sec. 15.3(5) specifies that an adoptive child who is a minor cannot apply for information from the Registry without the adoptive parent’s consent. This right to privacy is clearly not absolute, and the Bill attempts to weigh it against the competing claims of whatever rights to information concerned parties—including the adoptive parents, adoptees, natural parents and those concerned with providing medical care who have need of certain information in order to effectively carry out their obligations—may have.

One of the reasons we find problems in the Bill as it stands, however, is that there is no clear distinction drawn between the two different sources of rights to information about the people concerned in an adoption. This makes it difficult to weigh competing rights. Thus, we provide, in Section III below, a short analysis that may help distinguish various obligations that give rise to rights to access to such information. We argue that there is no right to contact between people separated by the adoption procedure that outweighs the right to privacy of those who do not indicate that they wish contact with their natural children, siblings or parents. However, where both parties thus separated wish to establish contact with each other, no rights are violated, and the state can perform a valuable service by exchanging information with these people to allow them to satisfy their desire for contact. But first, before we pursue these issues further, we will discuss those aspects of the Bill with which we agree.

Section I

The intention of the Bill is to provide a “clearing house” for information to be shared by those adoptees and natural parents who wish to share it. That is, the government’s role is passive, to facilitate the exchange of information among parties who have already declared their intention to share it. Furthermore, the Bill specifies that what is to be stored in this adoption registry should be only that information which would be useful for identifying affected persons, and would not include personal information not useful for that purpose. Ms. Brown has resisted the pressure from thosel who advocate that the government actively seek out natural parents who have not (yet) declared their intention to register, but whose adoptive children have filed with the registry (or vice versa). Given our argument of Section III, we fully agree with Ms. Brown here. However, we have some misgivings about what information is to be shared with whom, and we discuss that also in Section III of this brief.

The Bill recognizes the possibility that a natural parent or an adult adoptee who has not agreed to share identifying information with anyone else may nevertheless be “found out” in some other way by an unknown relative who decides to go and meet him or her imminently. The Bill implies that a warning will be given to someone in that position, rather than leaving him/her to deal with the shock of the unknown relative arriving on the doorstep at 10 p.m., saying “Hello, I’m your long-lost _____” (Fill in the blank with “father”, “daughter”, “brother”, etc.) Sec. 15.3(l)(b). [While the Bill makes it clear that this kind of situation is to be avoided, a close reading does not indicate how the Ministry will warn a party who has not sent identifying information to the Registry in the first place. Perhaps this situation could be examined by the Ministry in order to make sure that such a warning can be given effectively.] The idea of the Registry serving as a passive agent, rather than an active seeker, does not preclude intervention in this sort of case, and we fully support such intervention. However, the section reads “where in the opinion of the minister it is necessary….” This may be interpreted to mean that it is up to the officers of the Adoption Registry to use their discretion in these circumstances. Our view, however, is that this ought always to be done in these circumstances; and, if this is not to be made clear in the legislation, it ought to be made part of the policies and procedures of this Registry.

The Bill allows a party who has in the past consented to having information given to other parties the opportunity to withdraw his or her consent before information is actually given out (Secs. 15.3(2) and 15.3(3)]. For example, suppose a natural parent has given consent for release of information, hoping to be put in touch with her natural child. Ten years elapse, and then the child files with the registry. Before releasing the information about the parent to the child, the keepers of the registry will not immediately release the information to the child, but must first inform the parent, who then has fifteen days from receipt of the notice to advise the ministry if she/he no longer wants the information exchanged. This provision is admirable, since it does not assume that a statement of intention made in the past or under different circumstances represents a person’s present intentions. The BCCLA supports the idea behind this subsection; but we have reservations about another part of it, to which we shall turn in a moment.

Section II

Our objections relate to a central difficulty with this Bill. That is: the failure to distinguish between two classes of information that the Bill seeks to pass on. The first class, which has been of primary interest to those private groups who seek to facilitate contact between adopted children and natural parents or siblings, is that kind of information which makes contact possible: names, current or last known addresses, occupations and the like. The second class is that information which would be important for the adopted child to have, or for health care professionals dealing with the child to have, whether or not contact with the natural parent is established. About the only information we can think of here that is pertinent in the case where a child is adopted at birth would be medical information that might be relevant for treatment of that child, or useful for the child’s decision in later life whether to have children of his or her own: Is there a history of diabetes in the natural parent’s family? Heart conditions? Sickle cell anaemia?, etc. In the case of a child adopted later, perhaps some sociological information about the child’s early environment with the natural parents may be of importance for the treatment or counselling of a child with emotional problems by health care professionals or school counsellors. This gives rise to problems we note later in Sections II and III of this brief.

But before dealing with this, we return to the point made at the beginning of the previous paragraph that the two classes of information ought to be treated differently. It appears that the Bill recognizes the distinction between these two types of information, but we are not sure. Sec. 15.2(l) states that the purpose of this Bill is to “record and keep identifying information received from affected persons in accordance with this Act.” [emphasis added]. “Identifying information,” as defined for purposes of this Act, seems to be what we have in mind as the first class of information described in the paragraph above, since it is defined in Sec. 15.2(3) as “… any information by which an affected person may identify and locate another affected person Nowhere in the Act is mention made of the second class of information given above. Thus, it seems that the Act empowers officials to store only the first kind of information in this registry. The second kind of information must be stored in other MHR files. This is good news and bad news. First of all, the good news: this means that personal information that is no business of civil servants whose job it is to release identifying information will not be appearing on the same form as the identifying information it is their duty to peruse in order to release to those entitled to it.

But then there is the bad news: first of all, this means that the careful provisions for confidentiality and privacy, and for changing one’s mind and having information removed from or altered in records in this Bill, do not apply to other kinds of information stored by MSSH. This is not a defect of this Bill, of course, since it is not designed to handle this information stored elsewhere. However, it suggests further work for legislators and others empowered to administer these acts, to ensure that guidelines for privacy are already in place for this other information, and if not, to copy these provisions over from this Bill into other legislation. And, it suggests further work for the BCCLA, viz. to monitor this.

Secondly, though the Bill attempts to distinguish between identifying information and other sorts, this is in fact impossible to do simply by a definition in a Bill. All information about a person is useful in identifying that person, though some bits of information are more useful than others. Presumably the drafters of this legislation did not wish to allow people to supply other personal information about a given affected person and have it mixed up with whatever identifying information a person wants passed on. Given the difficulty with specifying in advance what personal information is justifiably to be allowed into the register on the grounds that it might help identify a person, the best solution is to simply allow an individual to supply whatever information he or she wants to include. As well, we do not wish to allow other people to include information about a person when she/he does not wish to be included in the register at all. The three provisions of Sec. 15.2(4), covering how a person way supply identifying information seem to be there to prevent these kinds of abuses of an individuals right to privacy and confidentiality. But they don’t.

Sec. 15.2(4) reads, “An affected person may supply identifying information for filing in the Adoption Information Register by…” and then goes on to specify how to do this. But, an “affected person” as defined in the Act, [Sec. 15.2(2)(a)-(e)] covers not only whom you might expect, i.e. natural parents, children and siblings involved in the adoption, but also (e) “any other person who, in the opinion of the minister, has an interest in the matter and a reason acceptable to the minister”—in other words, depending upon the minister, everyone and his dog! (We shall have more to say about this clause in a moment.) Furthermore, 15.2(4) does not restrict an affected person to filing identifying information only about him/herself; it says identifying information period. So, a well-meaning social worker, recognized by the minister as having an interest, can file information about a natural parent, say, in the register, even if the natural parent has not filed, and does not wish to be contacted. Could this oversight be covered by ensuring that the well-meaning social worker’s information not be included in that sent to the adoptive child requesting it? Not without contravening the Act. Section 15.3(l) states that when another affected person requests information, “…the minister shall, subject to subsection (2) [related to notification of affected persons] and (3) [related to withdrawal of consent by an affected person), release all information contained in the Adoption Information Register pertaining to the adoption…” [emphasis added].

It might be thought that this problem would not result in an affected person’s identifying information being released against his or her will, since, as we have already noted, according to Sec. 15.3(2), an affected person must be informed that the information is about to be released, and, according to Sec. 15.3(3), she/he has fifteen days to withdraw the consent and the information. But this doesn’t in fact solve the problem. Notice is given under sec. 15.3(2) only to an affected person “…who has previously supplied identifying information.” In the situation we described, the social worker submitted identifying information about someone else. The latter person did not supply identifying information and gave no consent to its disclosure. If Sec. 15.3(2) of the Bill is followed literally, the latter person would not be notified that someone had requested identifying information about him/her, and would have no chance to refuse consent to the disclosure of that information. This oversight must be corrected by rewriting Sec. 15.2(4) to make it clear that an affected person can submit information only about him or herself.

The problem just noted arises from an understandable attempt to ensure that information that is necessary for treatment of one of the affected parties is not unavailable just because a seriously ill affected person, or a minor, cannot apply for or include information himself or herself; or that the person possessing the information has not consented to become part of the registry, and therefore cannot be contacted by those responsible for treatment. But the way the Act is written, as we have seen, solves these problems by creating others. In the next section, we provide a way of satisfying at least this latter worry without the loopholes in the Act as it is now written.

Section III

Whatever obligations a natural parent has to his or her children, there is a feature that these obligations have in common with other obligations. obligations can be discharged in two ways: either by discharging them oneself, or by arranging for others to do so. Adoption is just that mechanism for a natural parent to have his or her obligations to the natural child discharged by someone else. But, because of the special role we hold family life to have in our society, a natural parent must accept certain restrictions in exchange for the state’s finding suitable adoptive parents and the latter’s undertaking the obligations of parenthood. It order that the adoptive parents may have the full rights and duties of parenthood, they take over from the natural parents the task of raising the child without interference from others, including the natural parents. In order to ensure against emotional problems such as divided loyalties, adopted children do not have contact with the natural parents during their minority except with the blessing of the adoptive parents. Natural parents give up the obligation to provide for their natural children, including the latter’s right to an inheritance from them. This amounts to the natural parents’ giving up any rights to contact with their children. Thus, the natural parents have no claims in this respect which society need ensure, nor does the child have any duty to the parents to accede to a request by the parents for contact. And vice versa: The natural parents have discharged their obligations to the child by going through the adoption procedure, and therefore are under no further obligation to their children to accede to a request for contact if they (the natural parents) do not wish it. However, as is sometimes the case, people do wish such contact, and, if the feeling is mutual, there is no reason to prevent it, and reasons for the state to facilitate it if possible.

It is arguable, however, that a natural parent does have the further obligation toward his or her child, to provide the state, the adoptive parents, or anyone else concerned with the child’s welfare, with the information at his or her disposal that is relevant for their discharge of their obligations. A parent giving up a child normally fulfills these obligations at the time the child is given up for adoption, by providing the Ministry or its designates with the necessary information at that time. This is not a concern of the adoption registry, since this is not the information the Act is intended to cover. However, sometimes information is not taken at the time the child is given up, either because it is not thought to be relevant, or is not yet known (e.g., a parent may later develop diabetes). A conscientious parent in this situation can already pass this information on to the Ministry without use of the adoption registry. In this case there would be no need to permit other affected parties to submit identifying information without that person’s consent.

This Bill seems to provide a mechanism whereby natural parents can register identifying information so that they can be reached by the appropriate authorities in case further medical or genetic information is required. Thus, Sec. 15.3(l) (c) authorizes the giving out of identifying information by the registry “when the information is necessary for the preparation of a medical or psycho social history for the purposes of treatment”. This is laudable, but the Bill as it stands is counterproductive for that end. A natural parent who may be perfectly willing to provide information under these conditions, but who does not want contact with the child, has a reason not to register with the adoption agency: as the Bill is written, s/he would at the same time be providing identifying information that is accessible to the child with whom s/he wishes to avoid contact. Thus, a way of satisfying the legislator’s intent here would be to give an affected person a chance to consent to the release of identifying information related to medical or psychological treatment to any other affected person, or just to someone designated by the adoption registry who could pass on the information requested, while preserving the confidentiality of the identifying information. This requires changes to Secs. 15.2(4)(b) and 15.3(l).

Section IV

The last problem we note is that of the right to appeal or review of a decision of the ministry. Secs. 15.5(l) and (2) are extremely vague, merely allowing a dissatisfied person to request the minister to review the decision. We would like to see the mechanisms for review within the ministry to be specified with more precision. It would also help if the ministry itself had more direction on who is to count as an affected person, beyond adopted children and siblings at the age of majority, natural parents, and adoptive parents: Sec. 15.2(2)(e) is far too vague to be helpful. Sec. 15.5(3) allows appeal to the Ombudsman; but this is a right that people already possess, since the Act does not specifically forbid it.

V. Recommendations

  1. That the BCCLA support in principle Bill M-210-1985.
  2. That Sec. 15.2(2)(e) be eliminated and replaced with a definition specifically designating someone in the ministry responsible for passing on medical or social information to those who have need of it in the performance of their duties.
  3. That Sec. 15.2(4) be changed to specify that an affected person may supply information only about him or herself to the Registry, and that Sec. 15.2(4)(b) be changed to allow an affected person to consent to releasing identifying information so that s/he may be contacted about medical or social information, without consenting to allowing identifying information to be passed on to other affected persons with whom s/he does not wish to make contact.
  4. That Sec. 15.3(l) be rewritten to allow the minister to release information only to the affected persons specified by the affected person giving consent under Sec. 15.2(4)(b) and not to all other affected persons.
  5. That the review procedures set out in Sec. 15.5(l) and (2) be specified more clearly.

Notes

1. Michael Paul, “Adoption Bill Needs Reform”, The Peak, 6 June, 1985, p.2

Addendum: British Columbia Civil Liberties Association Submission to the
MINISTRY OF SOCIAL SERVICES AND HOUSING on the “BACKGROUND PAPER ON THE ESTABLISHMENT OF AN ADULT ADOPTION DISCLOSURE REGISTRY IN BRITISH COLUMBIA” November 10, 1986

The BCCLA adopted a position paper on the topic of this background paper on 8 July, 1985. The occasion for this paper was a private member’s bill, Bill M-210-1985, which died on the order paper that session. We are still in principle in favour of that Bill, which essentially calls for a registry on the lines of Option 1 in the Ministry’s background paper, a passive registry, with one modification, to be discussed below. Thus we include that position paper with this submission, despite the fact that the ministry will want to start from scratch, after gaining fresh responses from interested citizens and groups. We do this for two reasons. First, the modification contained in that Bill we take to be an important addition to the options presented in the Ministry’s background paper. Second, while Bill M-210-1985 attempted to grapple with the concerns about privacy that are the paramount concern of the BCCLA, we noticed a few loopholes and problems in that version, which we have noted in the position paper. We hope that our analyses of unintended consequences that arise in that Bill, and our suggested remedies of them, will be of aid to the drafters of new legislation. They will obviously be struggling with the same complications.

Bill M210-1985 provides an addition to the otherwise passive registry that we think is important. This Bill recognizes the possibility that someone with whom the ministry has dealings, but who has not registered with the adoption agency, may nonetheless be “found out” by another interested party through channels independent of the adoption registry. This person may then be contacted despite their lack of expressed willingness to be contacted; and may therefore be in for a surprise. Thus, the Bill seeks to provide a mechanism [Sec. 15.3.(l)(b)] for informing this person of the imminent contact in the hopes of facilitating a less traumatic reunion. This one exception to a passive system seems to us to be a wise provision.

With this one exception, we favour the Ministry’s Option 1 of a passive registry, for the reasons outlined in our position paper. In addition to those arguments, we submit our answers to the questions about a passive registry posed in the Background Paper:

l. Should adoptive parents’ consent be required once the adoptee is over 19? No. The rationale for this is that the adoptee is at that age legally an adult, and should not be prevented by any parent from making use of the services of the state. The reasons for restricting minors’ access to the adoption registry without the adoptive parents’ consent having to do with divided loyalties, and the rights to bring up a child “as if the child has been born to that parent in lawful wedlock” (British Columbia Adoption Act)—i.e., without outside interference from the birth parents—no longer apply.

2. Should the registry accept inquiries from brothers or sisters of an adoptee? Yes. The point of a passive adoption registry is to facilitate contact between members of a family; and in a passive registry no one need fear their rights to privacy will be disregarded since they will not be contacted unless they register themselves.

3. Should the registry accept inquiries from grandparents or grandchildren of an adoptee? Yes. Same rationale as for 2.

4. Should provision be made for requests from adoptive parents who are concerned about difficulties their adoptive children (under 19) may be having about their identity? Yes. But this question is posed too narrowly. There is no reason to restrict access to cases where there are problems. Simple curiosity is a reason for wanting to establish contact. The registry has no reason to be concerned with the adoptive child’s or parents’ motives for wanting to use the service; since the rights to privacy of the birth parents are already preserved without the registry going to further ends.

5. Should the government provide guidance and counselling to the parties involved? Yes, where requested.

6. Should the registry accept requests from adoptees who have not yet reached adulthood? Yes, with the consent of the adoptive parents.

In addition, there is a question posed under Option 2 that is important for Option 1 as well: 3. What will happen if someone changes his or her mind? We think that Bill M-210-1985 addresses this concern admirably in Secs. 15.3(2) and 15.3(3). There it is provided that a party who receives information that another party is trying to contact him/her has 15 days from the receipt of notice to withdraw consent for the identifying information to be released. This is essential, for many years may elapse between the time consent is given and contact can be made. People’s intentions do change; and the government should not assume that consent once given reflects present intentions.