SOME LEGAL ISSUES

3.1 The law relating to information about adoption needs to deal fairly with many different people and situations. The law must take account of the interests of adopted persons, birth parents, adoptive parents, their immediate families and other relatives. A further complication is that the law has to deal with the consequences of adoptions that took place over a long period of time - from the 1920s to the mid-1970s - and over that period there were major changes in adoption law and practice. The degree of secrecy that prevailed at the time of the adoption, the amount of information supplied to the parties, and the information available from existing records, all vary considerably according to the period in which the adoption took place, the agency which arranged the adoption, and other factors. It is a difficult task to design a law that will deal appropriately with all the people and situations involved in this complex picture.

Weighing up competing interests

3.2 Many people find it helpful to think in terms of the interests of the different groups of people affected by adoption, namely adopted people, birth parents, adoptive parents, and other relatives. Our terms of reference specifically direct us to have regard to the impact of the law on all of these different groups. On this approach, the merits of the law should be assessed by examining how far it meets the needs of the members of these four groups.

3.3 It is important to appreciate that the interests of individuals within each group may be very different. Some adopted people wish to obtain information about their origins, but others do not. Of those who do, some simply want the information, while others wish to go further and, if possible, establish a reunion with their birth parents. Adopted people also have different attitudes towards the possibility that their birth parents may seek information about them, or a reunion: some welcome this, others would like to prevent it, and yet others do not mind one way or the other, or perhaps would prefer not to think about the question until they have to. Similarly, among birth parents and adoptive parents there are many different points of view.

Adopted persons

3.4 The desire of many adopted persons for information about their origins, and sometimes for contact with their birth families, is now extensively documented. Since at least the 1970s, there has been a growing pressure for the law to be amended so that adopted persons have access to information and to the possibility of establishing contact. While it is not known how many adopted people feel the need for this information, it seems that only a minority exercise their right to obtain information. However, for that minority, the need for information is felt intensely and access to it is seen by them as having a positive effect on their quality of life. It has been argued that denial of such information is discriminatory, in that other people have rights to obtain their own birth certificates. More specifically, it is argued that adopted persons are entitled to medical information about their birth parents, since such information might be highly relevant to their own decisions relating to the health of themselves and their children. The possibility of unknowing incest with members of their birth family is also a concern for some.

Birth parents

3.5 It now seems clear that many birth mothers think a great deal about the child they have released for adoption. The emotions associated with giving up their child are sometimes very strong, mixed and long-lasting. Some have described giving up their child as “devastating” and its memory a “nightmare”. Such mothers have also described the continuing anxiety and distress of not knowing whether the child is in good health, happy and well looked after, or even still alive. Many have also pointed out that at the time of the birth of their child they had little choice: limited sources of financial and other support, and the stigma associated with unmarried parenthood, meant that adoption seemed the only way they could give their child a good home. Further, the ways in which their “consent” was taken, and the children removed from them, were sometimes harsh.

3.6 Not all birth mothers necessarily feel like this. Some may feel that they have come to terms with their decision to surrender the child, and do not wish this chapter of their lives to be re-opened. Birth mothers may variously wish to obtain information, or establish reunions, or do nothing; and they may be pleased, or displeased, if their adopted children obtain information about them, or seek a reunion with them.

3.7 Birth fathers may also be affected by the Adoption Information Act. Most birth fathers do not have their names on the birth certificates of the children, and it will often be difficult to identify and locate them. Under adoption law at the relevant time, the consent of the father was not required for the adoption of children born out of wedlock, and many fathers would have had little chance to be involved in the child’s life, or in the decision about adoption. Some, no doubt, still do not know that they are the fathers of children released for adoption. Some may feel that they were unfairly excluded from the child’s life, and may very much want to learn about the adopted persons’ welfare and whereabouts, and perhaps make contact with them. The feelings of fathers may vary greatly in intensity, and they are likely to have widely differing views about whether they would like information about their birth children, and whether they would like those children, now adult adoptees, to be able to discover their birth identity and whereabouts.

Adoptive parents

3.8 Adoptive parents are likely to be closely affected by the operation of the Adoption Information Act. It seems that many will support whatever decision the adopted person makes. Some will have encouraged and assisted their adopted children to obtain birth information and perhaps to seek reunion with the birth parent(s). Others will have assisted the adopted person to take steps to lodge a contact veto.

3.9 Adoptive parents themselves are likely to have very different feelings about the possibility that the birth parents might wish to obtain the children’s amended birth certificate, which may well lead them to the adopted parents: some adoptive parents will no doubt welcome this, especially if their children do, and others will no doubt resent it, or regard it as an invasion of their privacy.

3.10 Those adoptive parents who are concerned about the impact of the Act may consider that confidentiality is the best course, for all parties to adoption. They may wish to protect their privacy, or protect themselves and their children against what they see as possible consequences of a reunion - their partial displacement from the role of parents, and disruption to the family unit. Some adoptive parents may consider that they embarked on adoption only after receiving assurances of confidentiality, and see the retrospective operation of the law as unfair. More generally, they may feel that their rights have been overlooked, or given little respect, under the Adoption Information Act. They may resent a law that gives rights to birth parents (who might be considered by these adoptive parents to have freely given up their children), but gives few rights to adoptive parents, even though they have made many sacrifices on behalf of their children, and had the highest motives in adopting, namely to provide a good home for children who might otherwise not have one.

3.11 When the Act was introduced, a period of time was allowed to enable adoptive parents who had not already done so to explain to their adoptive children their true status. Adoptive parents who have still not told their children that they are adopted face a particularly difficult situation. It may be very difficult for them to tell their children, now adults, after so many years. On the other hand, failure to tell them poses its own risks. Their adoptive children may already have discovered that they are adopted, and may, without the adoptive parents’ knowledge, have exercised their rights under the Act, either by applying for their original birth certificate, or putting their name on the Reunion Information Register, or lodging a veto. If the adopted children remain ignorant of their status, they are exposed to the possibility that they will be contacted by their birth parent (because there will be no veto to prevent this) or by a brother or sister who also has been adopted. Such a contact could be extremely upsetting, for they will have to come to terms at one time with the fact of their adoptive status, the identity of their birth parent or sibling, and the fact that this information had previously been withheld from them.

Relatives

3.12 Relatives of the parties to adoption often have a strong interest in access to information. "Relatives" include brothers and sisters by birth of adopted persons, parents of birth parents, brothers and sisters of birth parents, and children of adoptees. These people sometimes desire information in order to establish contact with a person separated from them by adoption, and sometimes for other reasons, for example in order to complete a medical history or trace genealogy. Alternatively, relatives may desire privacy and wish to prevent either the disclosure of information, or the making of contact, or both.

Resolving conflicts of interests

3.13 Much of the debate on these issues assumes that there can be conflicts of interest between the parties involved. For example, if an adopted person wishes to identify and find a birth mother, and the birth mother wishes to keep the fact of the birth entirely secret, the law cannot satisfy both. Their interests are competing, and the law must choose between them, even though in doing so it may seek a compromise, as the Adoption Information Act does through the contact veto system. It is often thought, therefore, that the law needs to be based on some principles which determine the priority to be given to the interests of the parties. The Commission would welcome submissions and comments on balancing the interests of the various parties to adoption, and indeed on whether this is an appropriate way of thinking about the problem.

Retrospectivity

3.14 The Adoption Information Act changes the rights of people arising from adoptions made in the past, as well as future adoptions, and thus has retrospective operation. There is no legal principle preventing legislation from having a retrospective operation. However, it is sometimes argued that retrospectivity is undesirable.

3.15 This question was much discussed in the debates leading up to the passing of the Adoption Information Act. Some argued that the new principle of openness should apply only to adoption orders made after the Act came into force; to apply it to past adoptions was unfair to those adoptive parents and birth parents who had arranged their affairs in the belief that the law protected their privacy by preventing all access to identifying information. Others argued that the adopted person was not a consenting party to such an arrangement or contract, and should not be bound by its terms. It was also argued that in many cases birth mothers could hardly be considered to have given free consent to the arrangement: they were often treated insensitively at a time when they were very vulnerable, with limited financial and other supports available to them, and given the prevailing hostility to unmarried parenthood. They had little option: adoption was the only way they could provide a good upbringing for their children.

3.16 The view that prevailed was that the law should enable adopted persons and birth parents to have the right to information, even though this did mean a change from the position as it was when the adoption order was made. The interests of those who felt threatened by the new law were acknowledged by a number of measures, notably the contact veto system. The Commission would welcome submissions on the question of retrospectivity in the light of the interests of all those involved in adoption.

Information rights during adopted person’s childhood

3.17 It would be possible for the law to create information rights for the adopted person and the birth parent during the adopted person’s childhood. In accord with most other laws relating to access to adoption information, however, the Adoption Information Act creates rights only when the adopted child reaches majority (18 years). This important limit may be regarded as protecting the adoptive parents, and the child, from disturbance during the child’s formative years.

ALTERNATIVE MODELS FOR ADOPTION INFORMATION LAWS

3.18 Not surprisingly, different countries have taken different approaches to the problem of adoption information, and in Australia alone there are important differences among the states and territories. Since 1984, new laws have been made giving some rights of access to adoption information in Victoria, South Australia, Western Australia, Queensland, and Tasmania, and the matter is under active consideration in a number of jurisdictions. It is not necessary here to give a detailed account of the various laws, but it might be helpful to describe some of the main types of approaches that can be taken. We will start with those that emphasise secrecy and move towards those that emphasise access to information. This list is by no means exhaustive: numerous other variations could be imagined. The selected models are set out here only to illustrate the various ways in which the law could address the problem. We hope that they will be helpful in assisting people to think constructively about what changes, if any, they would like to see in the law.

Model 1: Secrecy, subject to discretionary disclosure by court

3.19 The law could provide for all identifying information to remain secret, except where the Supreme Court (or some other body) orders that information should be disclosed in a particular case. In substance, this model represented the position in NSW prior to 1976.

Model 2: Secrecy, except for volunteers

3.20 The law could provide for all identifying information to remain secret, except where a birth parent and adopted person each took the initiative to place their names on a register, indicating that they were willing to have their identity disclosed. In the absence of additional provisions, this model has the consequence that upon the death of either party the other cannot acquire any rights to information. In substance, this model was adopted in NSW in 1976 with the creation of the Adopted Persons Contact Register.

Model 3: Rights to information, subject to veto

3.21 The law could create rights to information that are subject to the veto (prohibition) of the person to whom the information relates. On this approach, adopted persons and birth parents would each be able to obtain the original or amended birth certificates, unless the other had prevented this by lodging a veto. It would be possible for the law to give the right to lodge a veto to the adopted person, or to the birth parent, or to both.

Model 4: Rights to information, subject to counselling or other restrictions

3.22 The law could provide that persons had rights to information but only if they had counselling (which could take several forms). The law could also apply other restrictions, such as limiting the right to information which is considered (by some nominated authority) not to be distressing. Such restrictions could apply to the adopted persons or to the birth parent, or to both.

Model 5: Rights to information, but veto on contact

3.23 This is, as we have seen, the approach of the New South Wales Adoption Information Act. Adopted persons and birth parents have absolute rights to information, but are prohibited from making contact with the other person where that person has lodged a contact veto.

Model 6: Unqualified rights to information

3.24 On this model, the law would simply give adopted persons and birth parents unqualified rights to original and amended birth certificates and other information. It would be left up to the individuals whether to obtain that information and, if they obtained it, what use to make of it.