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Privacy, Anonymity and Adoption: A Drama Unfolds

posted by:Carole Lucock // 11:50 PM // June 28, 2005 // ID TRAIL MIX

OEDIPUS: With all these indications of the truth
here in my grasp, I cannot end this now.
I must reveal the details of my birth.

Sophocles, Oedipus the King

Proposed change to adoption law in Ontario would provide adoptees with access to their sealed birth records. This has created an intriguing drama that has seen privacy commissioners from across Canada line up along side Ontario’s Information and Privacy Commissioner, Ann Cavoukian, as she calls for amendments to Bill 183. These amendments, if accepted, would prevent the retroactive opening of sealed birth records (which the proposed Bill allows) if birth parents exercised a veto to prevent this from happening. Groups representing adoptees are calling instead for a contact veto, which would prevent adoptees from contacting birth parents if the parents had exercised this veto.

The Ontario Commissioner is arguing that at the time of adoption there was “an understanding or social contract that created an expectation of privacy and confidentiality that should not be retroactively revoked.” Others deny that assurances of confidentiality were made, or at least, that made as a matter of official policy. In addition, she raises concerns related to the emotional and psychological harm that might be caused if this understanding is changed retroactively.

Although I am concentrating on the issues as they relate to adoptees, it should be noted that Bill 183 also provides a right of access to the adoption records by the birth parents, which has also been criticized by the Ontario Commissioner and others, see for example, Laura Eggertson, “Don’t put these adoptees at risk again” Globe and Mail. June 14, 2005.

This drama heightened when it was reported that sixteen adoptees had filed human rights complaints with the Ontario Human Rights Commission against Ann Cavoukian on the grounds that her statements in connection with Bill 183 “‘intended to incite the infringement’ of an adoptee’s human rights to equal treatment regardless of family or marital status.”

News of these complaints drew rapid responses from Cavoukian and others, who claim that the adoptees’ human rights complaints are groundless in law and fact. Moreover, Cavoukian states that she sees “the filing of this complaint as an effort to silence my voice and discourage me from performing my duties to the public and the Ontario Legislature.”

These developments raise a host of procedural and substantive questions that will no doubt receive further comment from scholars and others in the coming months. These include:

· What is and should be the role and authority of privacy commissioners (and other similar office holders) with respect to the introduction or amendment of legislation and, in particular, the positions they adopt as they offer critical comment? For example, should such comment be based on principles grounded in the legislation that establishes the office? If not, on what should comment be based?

· What is and should be the relevance and weight of past promises, assurances or understandings of confidentiality or privacy when legislation is introduced that aims to change the status quo? What difference does it make if government has itself previously provided the assurance or the promise? If we extrapolate the principles that the privacy commissioners have adduced in this case to other cases, how would they apply? For example, in the context of health information, it would seem that past promises or assurances regarding confidentiality were at least as significant. However, recent legislation pertaining to health information across the country permits access apparently inconsistent with these expectations (for example, by granting access to health information to researchers without consent).

· What implications does the position taken by Canada’s privacy commissioners have for one of the cornerstones of informational privacy legislation and fair information practices in general, that of the right of access to one’s own records? Extrapolating from the adoption case, will the right to privacy trump the right of access when a record is subject to a collateral promise to another who is also implicated by the record?

So far, the debate about this issue has been heated and polarized. This is not surprising. It is difficult to think of a record that is more fundamentally connected to the person than the record of her birth, notwithstanding that promises of secrecy or confidentiality with respect to this record may have been given to somebody also implicated by the record.

Fundamental and ancient questions about the meaning and nature of identity are here at issue, opening up difficult questions about anonymity, privacy and the right to know the truth. The unfolding drama in Ontario could help us explore these issues not only from the perspective of the principled basis for argument and counter-argument, but also in the recognition that we are here dealing with matters that are, in significant ways, beyond our grasp.

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I've been following this story a bit and it seems to me that the contact veto as proposed is a terrible idea. Imagine you were adopted and are trying to find out your mother's identity but she does not want to be found and has exercised a contact veto. Under this law, as I understand it, the adoptee would be given her mother's name along with instructions not to contact her or face a fine of up to $50,000.

One option is for the daughter to ignore the veto and risk the fine. In this case, the mother is put in the position of having to report her daughter's breach of the law. She probably already has feelings of guilt which might prevent her from turning her daughter in.

In another scenario, the daughter could technically obey the law by not contacting her mother, but might drive by her house trying to catch a glimpse. I doubt I could resist the temptation.

Either way, the damage is done. In fact even if the daughter is satisfied with a name (and perhaps some medical information) and leaves it at that, the mother's identity has been revealed, presumably against her wishes. Cavoukian has argued that this is, in itself, a breach of privacy and I agree with her.

Posted by: Hilary Young at June 28, 2005 02:27 PM

I haven't been following the story, but it seems to me from the descriptions given that you, Hilary, and Cavoukian are completely right. The contact veto proposal seems very bizarre, even paradoxical: "Here's how we can protect the mother's privacy. First, we violate it; then ..."

Posted by: David Matheson at June 29, 2005 12:19 PM

It is interesting that the language we use surrounding this issue usually bears the gender of female. It is usually the case that the first person an adopted child wants to contact is the 'mother'. I use quotes around the word mother because I think it is a confused term in the adoption discourse. The word mother by definition means female parent, and parent coincidently is defined as 'person who has had or adopted a child' (courtesy of the oxford dictionary), funny thing is that only women can 'have' children (have is also defined in this dictionary as 'giving birth to'). So, by definition they are the only people who can be parents in this particular way and therefore seem to bear the brunt of the consequences of most, if not all, reproductive actions.
The definition of father is of course male parent, but this seems to be a logical impossibility unless he has an adopted child (maybe oxford should look into this). For most people the word mother invokes some sense of relationship or bond, not solely the birth act. Until we start thinking differently about women's roles and relationships it seems that we will be constantly battling over these issues.
In consequence, this issue is not only an issue about privacy, but and seemingly more importantly it is an issue surrounding women's reproductive freedom, and their ability to have some control and power over the choices that they make. If they had entered into an adoption agreement that promised them privacy, and if they weren't offered that privacy at that time, and they may have chosen some other course of action, then it seems regardless of timeline, their guaranteed anonymity was and still is an absolutely integral component of the choice they made. In other words, it is not a decision that they made some time ago and that was that, it a decision that they made in the past and continue to make and struggle with daily, and that needs to be enforced and respected.

Posted by: Krystal Kreye at June 29, 2005 03:51 PM

There's an awful lot of misinformation and stereotyping around adoption and recent editorials and columns about Bill 183 seem to reenforcing myths. It doesn't help that no one appears to bother to fact check what they're reading.

First of all the so-called "birthmother" is a mother whether anyone likes it or not. Legally until the adoption order was issued she was her child's mother and she may have named her child and filled out the declaration of live birth. She will always be her son or daughter's biological mother and nothing can change that. The records were sealed only after the adoption was finalized. and she signed away parental rights, nothing more. Dismissing her as a non-mother disrespects her as a human being and suggests she's just a human incubator to serve the needs of infertile couples who want a baby. It's insulting.

There's an assumption that girls and women who lost children to adoption asked for privacy. Is this true? Read the history of adoption disclosure in North America and you'll discover the girls and women who lost their children in most instances had absolutely no choice about it. For years there was no welfare, no social support whatsoever for an "unwed mother" and if her family didn't support her she was sent to a home for unwed mothers and forced to relinquish her child. In Ontario there was also a Morality Squad that could jail underage unwed mothers and seize their children. There was also a time in Ontario when birth control was inacessible and illegal for many girls and women.

Before 1927 Ontario adoption records were open to the public. History shows the reason adoption records in Ontario were sealed because adoption societies lobbied for it, it had nothing to do with the girls and women wanting secrecy or privacy and reproductive rights. The girls and women were shamed and seen as deserving to lose their children as a direct consequence for "sinning" against society's moral standards. Birth certificates of children born out of wedlock were stamped "illegitimate" and these children's births were only deemed legitimate when they were adopted and new birth certificates listed the adoptive parents as the biological parents.

In Ontario the "birth mother's" maiden name appears on the adoption order of adopted people born before 1970 (in some instances, 1965) so you could say the government already violated so-called promises of confidentiality. There is no mention of any promise of confidentiality in adoption surrender papers or in the court transcripts of mothers. By the way, most of these thousands of girls and women were never declared unfit mothers, they just weren't supported by their own families or society.

Contact vetoes are being used in jurisdictions across the world with few reports of problems. New Hampshire recently opened records and has something called a contact preference.

There are places across the world where records have never been closed and places that allowed adopted people access to their original birth certificates long ago. Ontario's 1927 law was based on a 1926 law from England but in 1975 England changed its law and allowed adopted people to have their original birth certificates. So did Scotland (since 1930, Israel (1960), in France the biological parents are listed on an adopted person's birth certificate - no sealed records at all. The list goes on.

There's little or no mention of adoption disclosure in privacy law and literature, privacy law does not currently apply to Ontario's Child and Family Services Act and it's debatable whether privacy laws should apply at all given that adoption disclosure affects a number of people at once. Whose personal information is it that deserves protection anyway? Adopted people are the only people in Ontario who cannot easily know who gave birth to them or get their hospital records or medical information. Human rights to identity and freedom of association most likely trump the supposed "right" to privacy (which comes out articles related to unlawful search or seizure by governments but I digress).

Are the women Ann Cavoukian speaks for even real "birth mothers"? Could someone anonymously pretend to be a woman fearing her life will be "shattered" if her identity is revealed? How can anyone verify anonymous claims? In places that opened adoption records the experience is that 95 to 97 per cent of natural mothers want to know how their sons and daughters have fared and they have never forgotten them.

If Cavoukian is truly defending the rights of such women to protect their "personal information" then why does the amendment she proposes have the disclosure veto expire two years after the "birth mother's" death? In Alberta the disclosure veto expires at death while in Newfoundland and Labrador it expires one year after death. I think the reason a person's "identity" can't stay secret forever is because there's a recognition doing so would trump other people's human rights and there are legal grounds for disclosure. So the "right" to privacy in this instance is open to question.

Posted by: Stephanie at July 4, 2005 01:23 PM

Personally, I'm still waiting in all of this for someone to explain why the current (Ontario) system isn't working. The existence of the VADR ensures that where a birth "parent" and an adopted child both wish to be reunited, counselling is provided by CAS and the reunion is facilitated, information provided consensually etc.

As far as I can tell, then, what this new system would deal with would be revelation of information (about adopted child and birth "parent") in non-consensual situations. Recognizing the non-consensual nature of the exchange, we should be careful to put more protections in place, not to weaken them.

Posted by: jenn at July 6, 2005 09:21 AM

Stephanie, as to your comment that the "birthmother is a mother whether anyone likes it or not", I'm afraid I don't agree. You argue (it seems) very much from the birth parent perspective, suggesting that not to recognize the maternal role here diminishes birth mothers, making them nothing more than "incubators for infertile couples".

I tend to think there's something more going on here than a power struggle between birth "parent" and adoptive families. Speaking as an adopted child, I'm well aware of who my mother and father are -- they're the ones who have been there daily in my life, who've loved me and supported me and directed me. I am fully aware that there are also biological progenitors in my life. I don't deny their role. I am, in fact, grateful to them for having me and for the decision to place me for adoption -- i hope it has been on balance an equally positive decision in their lives. I do not, however, think of them as "father" or "mother" regardless of whether dictionary definitions stretch to make such an identification correct.

Posted by: jenn at July 6, 2005 09:32 AM

I am not sure that I was as clear as I could have been in my previous post. There is a real language problem at work in this issue, and many other issues surrounding women and reproductive freedom. And, until we change our language we are going to have a very hard time starting to think differently about this stuff.
It is my contention that it is fine to be a "non-mother", and that you are still a human being if you choose this path, regardless of what others may say.

If you have a child and do not want to care for that child (stephanie made some good points that many cases of adoption were not made by choice, however I am using the instance of chosen adoption), then that's okay, you don't have to be a 'mom' or consider yourself a 'mom' or feel like a 'failed mom'(as compared to a 'successful' mom??). Actually, you don't have to think about that child ever again in your life, and you are not a bad or evil person for that. Maybe you really felt that, that child was a mistake (people may be uncomfortable with my using the word mistake to represent a person, but mistake invokes a sense that if you had the chance to do it over again you would do it differently, or you wish you had never done it in the first place). I really believe that those feelings are just as relevant as feelings of wanting to see or wondering how the child is doing. It is not womens duty to be mothers and, therefore, those who choose not to do so are just as much persons as the women who choose to be mothers.
The fact is, that all cases are going to be different in this issue, depending on the situations, the culture in which the people are embedded, and of course the character of the people who had the child. Also, what works in some countries is not really a sound argument that it should then necessarily work in all countries. This issue should not be about statistics and numbers and previous policies, it should be focused on the women who had children, who gave them away, and who may or may not ever want to see them again. Stephanie is right that other rights prevail over the right to privacy, and the right of women to reproductive freedom is foremost. (reproductive freedom in this case of course being the ability to have a child, give that child up for adoption and, if so chosen, never be in contact with that child again.)
This sounds a bit stronger than a position that I would regularly take, but I thought I would throw it into the mix anyway.

Posted by: Krystal at July 7, 2005 02:28 PM

I guess the language problem happens only if a girl or woman truly chooses to lose her child to adoption, to be a "non-mother." I think that's quite rare. I suppose a woman who truly did not want her child will not see herself as her child's mother. It's true it's not any woman's duty to be a mother. But one of the biggest myths surrounding adoption is that all "birthmothers" rejected motherhood.

For most women in Ontario losing a child to adoption was not a true choice. A woman who was forced by circumstances or tricked into thinking adoption would be wonderful for her and her child will consider herself her child's mother. Not parent but her child's first mother, one of two mothers her son or daughter has. There is a birth certificate and hospital records that list this woman as her son or daughter's mother, it's a legal term on a legal document. And women who lost their children this way have as much right to define themselves as mothers as women who rejected their children have to see themselves as non-mothers. And of course as much of a right as adopted sons or daughters have to decide the woman who gave birth to them is not their mother nor will never be.

I don't get how our society considers a woman who loses her child to miscarriage or stillbirth a mother but a woman who loses her child to adoption somehow isn't a mother. This is a girl or woman who carried a baby for nine months and may have stretchmarks, her body has changed (giving birth changes a woman's body forever, bones of the pelvis bear the marks, there are hormonal changes, milk comes in). In many jurisdictions the "birthmother" is the only "mother" legally allowed to access the adopted son or daughter's hospital records, the part of the records the adopted son or daughter cannot access. I can understand saying the "birthmother" (it's a word coined by the adoption industry, there are a few women who use the term but many who reject it) is not a parent, and psychologically for an adopted person she is not mother but biologically she is and the only thing that makes her different from other mothers is she did not raise her child. Certainly the women who lost their children to adoption, the women who don't feel they "gave their babies away" would say they are their son or daughter's mothers. They don't say parent but mother.

The women who want nothing to do with their lost children are another group, they don't represent the majority. I think they have every right to reject a relationship with their adult son or daughter but I don't think they should be allowed to have their names whited out on birth registrations. I think social services agencies should give adopted people the names of biological fathers on file so that in cases where the mother does not want a relationship at least the adopted person searching can get some medical information for themselves and for the sake of any children they may have. It was common practice for social workers not to list the father on birth certificates if parents were unmarried but the father's name is usually in social service agency files because the mothers told social workers the father's name.

I am certain if an inquiry were held into past adoption practices in Ontario the human rights part of this story would come out. It may shock a number of adopted people to discover they were not abandoned by the then girl or woman who gave birth to them, they were not unwanted children and it's quite possible that woman has been thinking of them every day of their lives. It's possible there are letters from her in the file at the Adoption Disclosure Registry. It's possible she made enquiries. She may not be the stereotyped drug addict, poor, overly emotional unbalanced woman feared by adoptive parents and adopted people. She may even have married the father of her lost child and had other children. She may be successful in her life now but wondering how her lost son or daughter has fared.

Under Ontario's adoption disclosure system "birthmothers" are not allowed to approach an adopted person for reunion, they can only pass along medical information and list themselves on the passive registry and wait for the adopted person to initiate a reunion.

The current adoption disclosure system in Ontario is so overwhelmed adopted people have died waiting for medical information, people have been on lists for over 10 years. And some adopted people have been denied searches for their biological fathers because their biological mother refused a reunion.

The fight for open adoption records has been going on in Ontario for what, 30 years? Yet some countries never sealed away information. In France for instance, it's all listed, the original birth name and names of natural parents and of course the new name at adoption. I am tired of the stereotypes and myths that searching adopted people and natural parents are dangerous people out to ruin the life of the other person, that they're potential money grubbers or stalkers. It's ridiculous.

I think privacy laws belong to the discourse surrounding bank records and online shopping, Big Brother in public spaces, data mining, health information and other information held by governments etc. But adoption disclosure involves so many different interests, I don't think privacy "rights" can prevail here.

Posted by: Stephanie at July 9, 2005 02:07 PM


Just for the record,

I totally agree that for those women who truly saw their baby as a "mistake" and who chose adoption and who see themselves as "non-mothers," the right to refuse a relationship must be respected full stop.

I find your take on reproductive rights interesting. I think all women have the right to refuse motherhood. But I think also discussions on unplanned pregnancy have often been either/or. It's abortion or adoption and people forget there may be girls or women who want to raise their children but don't have support to do so.

I believe women who did not truly choose to lose their children to adoption suffer terribly because their loss isn't acknowledged, the presumption is that they'll forget their baby and move on when the reality for many is they never forget their child. I'm not sure what the reproductive rights are for unsupported mothers. Is there also a right to be a mother and parent your child in such circumstances?

Posted by: Stephanie at July 9, 2005 02:19 PM

It is odd how woman have a 'right to refuse motherhood' but men have no 'right to refuse fatherhood'.

Posted by: Anonymous at July 14, 2005 04:41 AM

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