Submission by the Privacy Commissioner to the Law Commission in relation to Chapter 15 of the Law Commission's discussion paper Adoption: Options for Reform
Legislation bearing upon access to adoption information includes:
- Adoption Act 1955;
- Archives Act 1957;
- Official Information Act 1982;
- Adult Adoption Information Act 1985;
- Privacy Act 1993;
- Birth, Deaths, and Marriages Registration Act 1995;
- Adoption (Intercountry) Act 1997.
The approach of, and philosophy underlying, these enactments differ significantly in their treatment of adoption information. There is little coherence. Reform could provide a consistent approach, offer humane solutions to currently vexing issues, and establish mechanisms to ensure that any new policy is effectively applied.
This review provides a good opportunity to look at the 'big picture' and I welcome the opportunity to contribute to that process. I have already been involved in some adoption issues in a more limited fashion. For instance, in my function of receiving and investigating complaints I have had cases involving refusals to give access to adoption information within the existing statutory framework. I have offered comment on relevant pieces of ad hoc amending legislation including the Adult Adoption Information Amendment Bill(1) and the Adoption Amendment (No 2) Bill.(2) My office filed an earlier submission on the present discussion (excluding chapter 15).(3) I also participated in a meeting between the Principal Family Court Judge, the Ombudsman and the Department of Social Welfare, to seek solutions to some of the issues.
I have also provided input into proposed law reform concerning assisted human reproduction (4). I mention this because the information issues in the adoption and assisted human reproduction areas can be similar. The Assisted Human Reproduction Bill draws on the Adult Adoption Information Act 1995 but represent a notable improvement in its approach to information issues. I commend close study of the bill in this review.
In the balance of this report I:
- offer some suggestions as to the approach that law reform might usefully take;
- make some specific submissions in relation to questions raised in the discussion paper and areas worthy of reform; and
- note some miscellaneous points where it appears that the discussion paper is in error.
Suggested approach to law reform
Adoption arouses strong emotions in those personally involved whether as adoptees, birth parents, adoptive parents or other family members. Individuals have often been particularly anxious to preserve their privacy in adoption processes. In the past, adoption had often also been associated with ex-nuptial births, orphaned children or circumstances of poverty, each of which can represent personal trauma for the people concerned. The process itself, usually in the post-natal period and involving the legal and physical separation of child from mother, can be emotionally fraught. Of course, not all adoptions arise in emotionally unfavourable circumstances - most recently the planned use of the process in relation to offspring born through artificial human reproduction techniques and surrogacy come to mind. In any circumstances, issues surrounding conception, pregnancy, infertility, parentage and family dynamics are intensely personal.
Adoption law was designed as a humane response to the plight of orphans and 'illegitimate' children. Later, the 'closed adoption' process was favoured, with its attendant secrecy, to better serve those humane impulses. However, professionals in the adoption area now believe that total secrecy is not the best approach given the continuing human urge for adopted persons to know their origins and the desire of birth parents to know something of their offspring. Accordingly, from 1986 New Zealand has granted all adopted persons a qualified right to have access to their 'original birth certificate' (that is, showing the person's birth mother, and possibly birth father, rather than the adoptive parents shown on the 'amended birth certificate').
The 1985 reforms, although widely welcomed, were somewhat piecemeal. The Adoption Act 1955 remains on the statute books as the primary piece of adoption legislation notwithstanding that it was enacted in the period of closed adoption. Its ethos does not sit comfortably with the 1985 reform. Furthermore, the 1985 Act, with its principal focus upon register information and with veto provisions, remains a restrictive piece of legislation in information terms and largely fails to address wider issues such as access to adoption information in departmental files and the position of other relatives. Young adopted persons have no rights under the 1985 Act. Older adopted persons, subject to a pre-1986 adoption, may never get access to information about their origins if a veto is lodged.
A continuum could be drawn from a tightly closed adoption process to a completely open one. There are bound to be tensions in privacy terms, when dealing with information about more than one person, regardless of the point on the continuum that law is placed. The privacy interest in having access to information about one's self, as represented by information privacy principle 6, is bound to come into conflict with the privacy interest in controlling the disclosure of information about one's self, as represented by principle 11. It would be arrogant to say that there is a single 'correct' way to resolve these issues. Although it is possible to go some way to reconcile the competing interests, any resolution is almost certain to elevate one interest over another at some point. My tentative view is that it is appropriate to put the adopted person at the centre of consideration and elevate its interests over that of other parties in the event of most conflicts of rights or expectations. This generally relates to giving precedence to the adopted person's right of access over a desire by other parties to constrain disclosure.
Although this approach represents an inroad into any expectation of confidentiality held by birth parents in the closed adoption period, this may nonetheless be seen as reasonable given modern thinking that the best interests of the children are served by allowing them, if they wish, to have access to information about their biological origins. Nonetheless, any change in approach would need to be implemented with care to protect vulnerable people who were involved in adoption processes in an earlier era.
Specific issues in the discussion paper
Should a birth certificate simply be a record of the birth of a child (as indicated in section 2 of the Births, Deaths and Marriages Registration Act) or should it also contain information about the genetic and legal parenthood of that child? Is there any other information that might be recorded on a birth certificate? If it is to be a full record, should the original details and subsequent changes be shown on the face of the certificate?
It is difficult for me to offer concluded views on the questions posed until it becomes somewhat clearer as to the desired direction of reform to adoption law itself and the preferred scope of access rights and disclosure controls. Once those directions are clearer, answers to some of the questions about the content and format of birth or other certificates will follow more easily.
However, I offer some observations and tentative suggestions.
A birth registration system is undoubtedly necessary. I believe that such a system exists in every country. Essentially, a birth registration system needs to record details of the birth and the identity of the person to whom the registration relates. To a certain degree the two types of information interrelate. The 'when and where' categories at first seem to relate solely to the details of the birth. However, they also identify the person. Many of us identify ourselves by where we have come from and how old we are.
'When and where' birth details are not, of themselves, usually sufficient to identify one individual from another. A person's full name is also shown as an identifier. Indeed the mere fact of registration tends to crystallise the name chosen by the parents as the person's name. However, as this is also a social convention it is possible for a person's name to change and this is allowed for in our registration law (the adoption process itself also usually leads to a name change). Physical characteristics are typically added to the registration system to assist in identification of the individual. Obviously, characteristics which do not change are ideal. Traditionally a person's sex had been seen in this light, although the law has been modified in terms of sexual assignment or reassignment.
In social and legal terms a birth is not simply an event for the child. Accordingly, certain relational information is normally recorded about the parents. As with the child, details identifying the parents are necessarily recorded to distinguish them from persons of the same name. However, current registration contains a variety of parental details which go well beyond the need simply to identify the parents. In relation to parents there is included: full name; usual occupation, profession, or job; date of birth; age at the time of the child's birth; and place of birth; and full name at birth (if not the full name on initial registration of the birth); as registered on the initial registration of the birth).(5)
It seems to me inevitable that the birth registration system will need to record details of the parenthood of a child. Registration is not solely for the purpose of dating and identifying the offspring but also to provide documentation for the purposes of parental rights and duties and in relation to interests deriving from familiar relations (eg succession).
However, while I suggest that parental information is necessary in the birth registration system it does not necessarily follow that the details necessarily need appear on the birth certificate. The certificate system is open to be reorganised on any appropriate basis which meets all the legitimate social, administrative and legal demands on the registration system. It is helpful to study the use to which birth certificates are put, the content necessary to achieve these appropriate and lawful purposes, and the difficulties arising from the inclusion or omission of information from the certificate. Amongst others, possibilities include:
- a birth certificate containing all the current information, a diminished set of information, or an expanded set of information, relating to the birth;
- a birth certificate containing minimal information relating to the circumstances of the birth and identifying the individual but omitting parental information. The parental information would be contained in a new certificate of parenthood (or as a variation, grounded in previous administrative practice, a 'short form' birth certificate, containing limited information about name, place and date of birth, and a 'long form' certificate, adding parental information);(6)
- a 'parental certificate' which brings together information about all births to an individual held on the births register or a 'lifetime' certificate containing all information registered on the individual during his or her lifetime from the births, deaths, and marriages registers.(7)
There are also issues about what information should be included on the birth certificate. For instance, sex is the only physical characteristic added to the register about the child. Registration systems overseas vary the basic features by adding items such as time of birth and baptism. Issues surrounding assisted human reproduction, whakapapa, genealogy and surrogacy may lead to demands to add to, or retain on, the certificate, details which may not be necessary for official purposes.
From a privacy perspective, it must be born in mind that the certificates produced under the registration system are not simply for the individuals concerned. Individuals will be required on occasion to produce their birth certificate in order to verify their age or place of birth - for instance, in seeking a passport or driver licence. Accordingly, privacy issues arise if the certificate contains excessive information compared with the purposes to which it may legitimately be put. For instance, persons who have undergone sexual assignment or reassignment have in the past suffered difficulties. Similar issues might arise in relation to adoption since in many cases an organisation asking to see a birth certificate merely wishes to verify that the person is of a particular age or was born in New Zealand and has no interest in parentage. It would be desirable to make a short form certificate available so that full relational and parental information need not be disclosed whenever a certificate is required to be produced.
There might also be a case to restrict access to the full certificate information to official purposes and to requests by the individuals concerned. Other parties who wish to obtain the full information (rather than the short form certificates) would need to have the authority of the individual concerned. This is a public register issue which goes beyond the scope of this paper, but I note in passing that access to an adopted person's 'original birth certificate' is an example of an access regime limited to persons having a proper need to know the information in question.
Would adoption be more appropriately reflected by a certificate of legal parenthood rather than an altered birth certificate?
If there is to be legal concept of adoption then there also needs to be registration of the fact. As the question acknowledges, the mere fact of registration, and the need for external authentication of the registered details through a certificate, does not necessarily mean that those details have to be shown on the birth certificate. Details contained in a birth certificate tend to relate to the facts of the birth, the identity of the child, or relational information about the parents. Information about adoption can be seen as relational information about the 'parents'.
The substitution of adoptive parents for birth parents on birth certificates seems to make little sense in terms of birth registration. The approach seems firmly grounded in concepts of adoption rather than birth registration. Birth registration would work perfectly satisfactorily by accurately and permanently recording the facts about the birth, the child and its parents. Adoption law could operate quite satisfactorily with its own proof of adoption and associated registers.
In a closed adoption system there was a need to keep information secret from a child and, in some cases, birth parent. Also, adoption law substituted the adoptive parents for the birth parents by deeming them to be parents for all purposes and severing the legal link between child and birth parent. This legal fiction is maintained by the substitution of adoptive parents on the birth certificate.
The attempt to bring openness to the process highlights the fiction. There remains an 'original' birth certificate and an 'amended' birth certificate. Furthermore, while there is a legal need to prove the relationship between adoptive parents and child, there also remains a legal need to prove the relationship between the birth parent and child (in relation to consents to adoption, information vetoes, access to information).
It is not clear to me that the issues can be resolved simply by putting adoption details on a 'certificate of legal parenthood' or a 'certificate of adoption'. A fundamental question remains to be answered: how is the birth information (under current terminology, access to the 'original birth certificate') to be handled? Which name will appear on the birth certificate? The proposal to have a certificate of parenthood works satisfactorily if the Law Commission intends to recommend a completely open system. However, if it intends to recommend a continuation or variation of the present system, the issues about access to birth certificates will remain fundamentally the same as now.
A variation on the 'certificate of legal parenthood' would be a 'certificate of parenthood'. Indeed, this may be what is intended by the question. This would have most or all parental information removed to a separate certificate (regardless of whether adoption is involved). If so, the access issues do alter from those presently surrounding access to the birth certificate but they are simply transferred to questions of access to the legal parenthood certificate. The old short form 'certificate of date of birth' omitted the names of any parents.
I am most interested in a pragmatic solution to the issues which accords with notions of information privacy and data protection. Accordingly, while I can see some theoretical attraction to excluding subsequent life information from a birth registry entry, in practice, I do not see the need for any such hard and fast approach. For example, there are practical benefits in recording changes in name in a manner which is associated with original register entries. There is also a social desire to be able to do so. After all, individuals do not choose their names at birth, they are selected and essentially imposed by parents (or substituted by adoptive parents). In exercising their personal autonomy, individuals may desire not only to change their name but have this reflected in official records. Similarly an open system could operate on the basis that the birth certificate contains original and new names, identified as such, and birth and adopted parents (these latter details could be kept to the long form certificate).
Some comparable, although not identical issues arise in relation to sexual assignment and reassignment. Alteration of a register entry following sexual assignment surgery can certainly be argued as constituting an attempt to make the register more accurate. A similar, although less convincing argument can be made in relation to sexual reassignment as reflecting a person's 'true' sex from a psychological viewpoint. However, regardless of those kinds of arguments, there is undoubtedly a case to be made - one which has convinced Parliament - that persons who have undergone sexual assignment or reassignment are unduly prejudiced if original birth register entries remain unaltered.
Accordingly, my initial views are:
- it is questionable as to whether adoption information should be recorded on the birth certificate;
- removing detailed parental information, whether including adoption information or not, to another document may have merit;
- the process of removing parental information to another document could be achieved by legal reform, such as represented by a certificate of legal parenthood, or a more simple administrative change, represented by a short form/long form birth certificate.
Where artificial reproductive technology or a surrogacy arrangement is involved, should the names of the genetic parents/commissioning parents also be on the birth certificate?
Details of donors of gametes should not be recorded in the birth registration system. Instead, the approach taken in the Assisted Human Reproduction Bill should be followed which involves the establishment of a separate register. I have not considered the question of the parties to a surrogacy arrangement in detail and presently have no opinion on how the registration issues ought to be handled if the practice is to be recognised.
Should the Adult Adoption Information Act be incorporated within the Adoption Act?
I see merit in incorporating the regime for access to adoption information into the relevant general legislative scheme. However, this involves considering not simply the Adoption Act (the general legislation for adoption) but also the Privacy and the Official Information Acts (the general legislation for access to information).
The best approach depends upon what view the Commission takes of reform of adoption information issues. A more radical reform may lead to fewer detailed statutory rules being required in the adoption context. If various prohibitions were to be dropped, many access issues could be determined by general information laws. Mere 'tinkering' with present arrangements will mean a continuing need for special adoption information access law which might be located in the Adoption Act or elsewhere.
Whether extensive or modest reform is proposed, I support a move away from a stand-alone statute into an information access scheme integrated with the relevant legislation. At its most modest, this might involve the content of the Adult Adoption Information Act being incorporated as a part of a new Adoption Act. This alone would be a useful reform. It would allow a more consistent approach to all adoption information issues. It would also provide a setting in which any special rules could be located, if necessary, in relation to access to adoption agency files.
A more radical reform might end the veto system and open up records to a greater or lesser extent. If the process was opened up in a radical fashion, there would be many issues to be gone into beyond those canvassed in this submission. I would be happy to help work through those.
There might be fewer special rules governing access and disclosure of adoption information than presently exist. Special rules about birth certificates disappear if a single certificate, open to search by adopted persons, replaces the original/amended certificate approach. It might be possible to simply allow the access rights contained in information privacy principle 6, with the attendant reasons for withholding and procedural provisions, to apply directly to information held by the Department. Much of the information held in the adoption processes will be personal information about the requester, whether the request is made by the child, birth parent or adoptive parent, but some will not. Similarly, some information sought by siblings may constitute information about themselves, some may not. Where the information is not about the individuals concerned, access rights exist under the Official Information Act which also, without the need for further special rules, may be able to operate satisfactorily in the adoption context. General access law may satisfactorily address adoption information issues in the event of reform favouring greater openness.
Assuming that special rules are needed in relation to adoption information in some areas, a further question is where those rules should be located. Certainly I favour moving the statutory rules from a stand-alone statute to one more closely integrated into the relevant legislation. The relevant legislation probably is the Adoption Act but for some issues it might instead be the Privacy Act.
Wherever the regime is located, it ought to have provision for complaint and review of decisions taken, in relation to the statutory rights and responsibilities laid down in the information scheme. This is a feature of general information access laws and ought to be so if some special scheme is constructed. In this sense, the Adult Adoption Information Act is somewhat deficient.
Decisions to withhold information should be subject to review through appropriate complaint. If the law simply defers to the general access regimes, this will be the Privacy Commissioner in respect of most adoption access issues. Where third parties seek information which is not characterised as information about themselves the review authority is normally the Ombudsmen.(8) If a special regime is constructed, it may be appropriate to have all such complaints dealt with by the Privacy Commissioner. In effect this may constitute a statutory presumption that, for instance, siblings seeking information about adopted persons are essentially seeking information about themselves (which is a possible, although somewhat strained, construction of existing information law in any case).
Depending upon what information scheme is devised by the Commission, it is possible that complaints about withholding information could be dealt with as complaints about other information handling practices which compromise an individual's interests. For instance, if an adoption organisation were obliged to retain information for a certain period, a complaint could be lodged where that is not done. In this regard, I refer to the Assisted Human Reproduction Bill which crafts a specific information scheme and confers a complaints role upon the Privacy Commissioner which goes beyond access issues alone.
Should there be any age restriction at all on access to an original birth certificate? At what age should an adopted child be entitled to further information about his or her identity?
At present, there is completely open access to birth certificates generally. Although New Zealand has unrestricted access to its birth register, this is not a universal practice internationally. Some jurisdictions only allow access to the birth register to certain people or for certain purposes.
Accordingly, any child can obtain its own birth certificate. Indeed, any third party might obtain it. However, in the case of an adopted child under present law all that is obtained, except through the special processes of the Adult Adoption Information Act, is an amended birth certificate. Under the 1985 Act, an adopted person can, obtain its original birth certificate at age 20 if no veto exists. With adoptions from 1986 onwards no vetoes have been allowed. However, since 20 years have not yet passed there is no example of those rights of access in operation. Rights of adopted persons to have access to further identifying information under section 9 of the 1985 Act will become more important from 2006 onwards as those entitlements are contingent on having an original birth certificate.
If the Commission was minded simply to tinker with the present regime I would support lowering the age from 20 to 18 (the position I took in an earlier submission(9)) or even to 16. Such a reform could be taken further with younger people being allowed to obtain access at even younger ages with the consent of their adoptive parents.
The Commissioner's question raises a more radical reform possibility to have no minimum age at all. I support the proposal albeit with the suggestion that any such change commence no earlier than a year after new legislation is passed to allow for birth parents to reconcile themselves to the new arrangements.
I support the reform since the right to have access to information about oneself is a fundamental privacy right. Although the 1985 Act represented a significant reform by conferring rights on adopted persons they did not previously possess, it was a compromise, with adopted children unable to access an official register of information until adulthood whereas any other New Zealand child is subject to no such restriction.
I am confident that the 20 year age limit was imposed with the best of motives by legislators. It would have been seen as a compromise between the competing interests favouring secrecy and disclosure. These are reasonable balances with which I am familiar. I expect that the limit principally serves the interests of birth parents and adoptive parents. Birth parents no longer have the ability to ensure their identity remains secret, but they could at least postpone their child seeking access to their identity. Adoptive parents may also wish to retain control over the disclosure of information to their adoptive children, including in relation to the timing of access to the birth parent's identity. Based on my view that in the event of conflict the adoptive person's interest in having access to information about themselves should prevail, I support the deletion of age limits all together.
However, MPs were, I am sure, also motivated by a desire to protect adopted persons themselves. In that respect, I believe that the approach may be overly paternalistic. Certainly a younger age of, say, 16 or 18 would have sufficed to meet any such concern. Adoptive parents exist as a resource to assist their adoptive children through the process and are made aware of this responsibility before adopting. Counselling is also available.
Should other family members be entitled to seek information about relatives who have been adopted? If so, should access be limited to certain classes of family member? Should such access to information be limited to where the birth parent linked to that family has died?
As mentioned earlier, it is possible that a radical reform of adoption information law might mean that many of the special rules disappear allowing issues simply to be dealt with by general information law (modified if necessary). If so, it is unnecessary to craft special rules for relatives since rights of access exist already. Of course, an access request by a relative, such as a sibling, for information that is both about himself or herself and the adopted person (a Privacy Act issue concerning mixed information) or by a relative seeking personal information solely about the adopted person (an Official Information Act matter), may be refused in appropriate cases. This is dealt with on a case by case basis depending upon the particular facts. Such requests normally turn upon the question of whether 'the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual or a deceased individual' (Privacy Act, s.29(1)(a)) or whether 'the withholding of the information is necessary to protect the privacy of natural persons, including that of deceased natural persons' (Official Information Act, s.9(2)(a)).
The rights of access in the Privacy Act and Official Information Act do not operate to derogate from other statutory provisions which regulate the manner in which personal information may be obtained or made available. So, for example, the general access rights cannot be used to seek access to the information held under the Births, Deaths and Marriages Registration Act given that there are specific provisions for obtaining such information in the Adult Adoption Information Act. The position is somewhat different with information on departmental records since this is not generally a matter regulated by the 1985 Act. However, I understand that access requests have not generally been allowed unless the Department has been able to obtain the consent of a person to whom the information relates or knows that that person has died. Most such cases taken on review have tended to arise under the Official Information Act (especially pre-1993) and I understand the Ombudsmen have taken the position that the access regime is not to be used in a manner to undermine the Adult Adoption Information Act. The matter has not been fully tested under the Privacy Act with no Complaints Review Tribunal cases being taken. Nor has the position been tested in relation to private sector agencies, such as Bethany, that also hold adoption records. Private sector agencies are subject to the Privacy Act but not the Official Information Act.
There also remains a series of adoption records in National Archives. The position about access to these records is not entirely clear. There are some complexities relating to the application of various adoption laws, general information laws, conditions on deposit and, of course, the Archives Act itself. The position may differ depending upon whether the birth parent is dead although there are practical difficulties in finding out if this is the case.
If the scheme of the 1985 Act was to be reformed only modestly, I think that the issue of access by relatives, particularly siblings, should be directly addressed. The 1985 Act did not acknowledge any desire to know one's brothers or sisters. The matter is particularly problematic where a parental veto exists - should this bind adopted siblings who have no wish to find out about the parent directly? Children living with the parent may also be intensely curious about their siblings or half-siblings - should a parent be entitled to deny them this knowledge? I suspect that if a more radical reform is not attempted, that the use of contact vetos could nonetheless help address the issues. For instance, if a birth parent's interests are protected by a contact veto, information could perhaps be released to siblings in appropriate cases.(10)
I think it also should be possible to make section 9 of the 1985 Act more effective by imposing a duty on the Department to make enquiries as to whether a birth parent is dead. At the moment, the rights under section 9 appear to be severely limited in that an adult adopted person must provide an original birth certificate. Perhaps it might be possible, on payment of a fee to meet the costs of checking to have the Department check, and recheck, the Deaths Register, to find out if the person who has lodged the veto remains alive. Maybe checks should also be made of some overseas death registers.
Again, if the proposed reform simply relates to tinkering with the basic scheme, it might be possible to reduce the term of a veto from 10 to 5 years which would ameliorate the problem of vetoes remaining on the register up to 10 years after a parent has died.
Should adoptees and birth parents be given rights of access to information similar to those proposed for children born of donor gametes?
I recommend careful consideration of some of the provisions in the Assisted Human Reproduction Bill as they could be usefully adapted for a reform of adoption information legislation. However, I do not think that the two regimes need to be totally equated since the circumstances are in fact quite different. Issues concerning information about donors of gametes, and offspring born as the result of a donation of gametes is primarily a matter between the parties involved. It does not have the same social and legal significance that attaches to adoption. Where legal and social issues do arise, they are often of a quite different nature to the many issues involved in adoption.
Nonetheless, while the statutory regimes need not be identical, there are enough commonalities to inform the current reform process. The Assisted Human Reproduction Bill built upon the 1985 Act albeit with some significant changes and refinements.
Should non-contact vetoes be used instead of information vetoes? Should adopted persons and birth parents be allowed to convert an existing information veto to a non-contact veto? Should birth parents who adopted a child out after 1986 be able to place any type of veto? Should information vetoes be abolished?
I think there is considerable merit in the proposal to move from information vetoes to contact vetoes (or to operate a system with a choice of either). Contact vetoes permit release of information while addressing the fear of unwanted contact.
Under an information veto system, a birth mother can direct that her child is not to be told of her identity during the currency of the veto. Given the renewal of vetoes, this means that effectively an adopted person may be denied the information forever. The veto may also have the effect of denying the adopted person other information, such as the identity of the father, grandparents, siblings etc. A contact veto system would replace this by allowing the adopted person to find out the identity of the person's mother, for instance, but prohibit contact with the mother. The release of the information may entirely satisfy the adopted person's desire to know his or her origins without necessarily translating into a desire for contact or for immediate contact. The adopted person could presumably make contact with siblings etc (unless a similar contact veto has been lodged for such persons).
No doubt there are many matters of detail in relation to any proposed contact veto system which would need to be explored. I would welcome being consulted in relation to some of those issues as they have a very great significance for individual privacy. I would wish to see that the scheme suitably accounts for some of the fears that may be held by some elderly birth mothers who would need to have the protections contained in the contact veto system fully explained to them. The state must take some responsibility. If the rules are changed, it should make resources available for such things as counselling and controlled intermediary contact.
Two fundamental policy issues would seem to be:
- how is the conversion of existing information vetoes to contact vetoes to be handled?
- to whom are contact veto rights to be extended?
On the first question, it seems to me that one could either convert all existing birth parent vetoes into contact vetoes, regardless of the preferences of the birth parent, or give persons who have lodged vetoes the option of converting them into contact vetoes. The first alternative would represent a public policy view favouring the interests of adopted persons over those who have lodged vetoes. The second anticipates the maintenance of a dual system of information and contact vetoes allowing greater access to adoption information by adopted persons on a gradual rather than immediate basis.
Either proposal represents an advance for the privacy interest represented by access to information. However, this advance is bought, in the first alternative, at the cost of an inroad into the privacy of persons who have lodged vetoes. This inroad is particularly hard on those parents who would not agree to convert to a contact veto if given the choice. However, it also represents an intrusion into the privacy of the other persons who have lodged vetoes even if they would agree to convert to a contact veto if asked. By taking that decision away from individuals their autonomy is diminished.
The preferable reform from a privacy perspective is probably the more gradualistic approach of allowing information vetoes to be converted into contact vetoes. However, there may be policy reasons favouring immediate conversion. It would be possible to find a middle position by, say, not permitting any further information vetoes to be lodged (although it is likely that few, if any new vetoes relating to pre-1986 adoptions would be lodged in any case) and to give advance statutory notice that all remaining information vetoes will be converted into contact vetoes at some distant future point. For instance, it might be provided that all existing information vetoes are converted into contact vetoes in 2010 being the 25th anniversary of the 1985 Act.
There remains a question as to who should be able to obtain a contact veto. The first obvious group, just discussed, are those birth parents who have lodged information vetoes. Other groups to consider include:
- adopted persons who have lodged vetoes;
- all adopted persons;
- all pre-1986 and/or post-1986 birth parents;
- adoptive parents;
- siblings and other relatives who might be identified by a new open system.
It seems to me that the introduction of contact vetoes might be viewed in one or two ways:
- as a mechanism to replace information vetoes relating to pre-1986 adoptions vetoes during a period in which they would, in any case, gradually diminish and ultimately disappear;
- as an integral and necessary feature of an information scheme dealing with adoption issues and therefore possibly as relevant in today's open adoption environment as for dealing with some historical transitional issues.
I tend to the former view. However, if the latter view were to be favoured, I would still tend to see a fairly restricted role for new contact vetoes.
There may be cases where there is some kind of harassment potential as a result of the ability to identify someone from the proposed new openness of information. It is quite possible that such problems can be suitably addressed through the general law particularly under the Harassment Act 1997 and the Domestic Violence Act 1995.
Another issue to consider would be the use that might be made of information gained. For instance, if either of the birth parents is a person in the public eye, might there be a temptation to release the details for publication by the news media?
Miscellaneous errors and points of clarification
The discussion paper stands as a valuable resource for consideration of the issues. No doubt some of the discussion will be repeated or developed in the Commission's final report. It is therefore important that some minor errors be highlighted. In no case do these errors detract from the Commission's reasoning or tentative conclusions.
Para 442 states that 'libraries around the country hold the register of births, deaths, and marriages'. This is incorrect. Many public libraries hold microfiche (and sometimes paper or electronic) copies of the indexes to the births, deaths and marriages registers. The indexes contain less information then registers themselves. Practices in respect of indexing various of these registers has changed over the years and the indexes may differ depending upon the period being searched.
Para 451 refers to seeking access to adoption records held by the Department of Social Welfare under the Official Information Act 1982. Since the discussion is focussed on requests for information by adoptee and birth parents you should be aware that these issues are generally not considered Official Information Act matters but requests under information privacy principle 6 of the Privacy Act. See Official Information Act, s.11(1A).
Para 451 is mistaken in quoting section 27(1)(b) of the Official Information Act as an applicable withholding ground (had the Official Information Act applied). Section 27 is within Part IV of the Official Information Act which applies solely to access requests by corporate bodies for information about themselves. See Official Information Act, s.24(2).
Para 456 mentions that the Principal Family Court Judge and Ombudsman are seeking an amendment to extend the circumstances under which a section 23 application could be brought and to broaden the definition of the term 'adoption records'. It might be noted that I met with these persons and also supported the proposal for amendment (as a measure to ameliorate the problems pending more satisfactory reform such as might be achieved by this review).
I am of the opinion that the issues relating to access to adoption information are ripe for thorough reform. In this submission I have offered some opinions on a number of the issues arising. In some cases, these are very tentatively expressed since there are such a range of options for reform and a host of philosophical, legal and practical issues to be gone into. I encourage the Law Commission in this well overdue reform project and would welcome being consulted on the information issues as the work progresses.
B H Slane
1 March 2000
1. See submission to the Social Services Committee on the Adult Adoption Information Amendment Bill, April 1994.
2. See report to the Minister of Justice in relation to the Adoption Amendment Bill (No 2), July 1996. The Adoption Amendment Bill (No 2) later became the Adoption (Intercountry) Act 1997. See also points of emphasis to the Commerce Select Committee in relation to the Bill, 24 July 1996.
3. See letter Blair Stewart to Helen Colebrook, 11 January 2000.
4. See my submission to the Ministerial Committee on Assisted Reproductive Technology on Information Privacy Issues, April 1994 and Report to the Minister of Justice in relation to Part 3 of the Assisted Human Reproduction Bill, January 1999.
5. Birth, Deaths and Marriages Registration (Prescribed Information and Forms) Regulations 1995, clause 6(a)(vii). Certain other details may some times be registered concerning the kainga (residence), iwi (tribe), and ahuatanga (description) of the mother and father.
6. I understand that short form certificates are no longer made available by the Registrar-General.
7. The 'parental' and 'lifetime' certificates go well beyond what the Commission is studying in this adoption proposal. Such certificates would be highly problematic from a privacy perspective for reasons which go beyond the scope of this paper. They are included simply to illustrate the variety of documentation which is conceivable.
8. The Ombudsmen's jurisdiction extends to most public sector bodies. If considering access generally to all organisations involved in adoption processes it is worth bearing in mind that these may include private sector bodies now or in the future. The Archives Act similarly only covers public sector bodies.
9. See submission to the Social Services Committee on the Adult Adoption Information Amendment Bill, April 1994.
10. A further issue for consideration would be whether siblings should be covered by, or able to seek for themselves, contact vetos.