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By Vivian J. Salles Vieira Pinto
Introduction
The right to know is the core of the right to identity of adoptees, as it allows them to pursue their own biological information. The identity of one`s biological parent – a simple, straightforward information for many – is a significant missing piece in adoptees’ history. Questions such as: who are my biological parents? Where did I come from? Why was I put up for adoption? What is my family's medical history? These inquiries, though seemingly commonplace, underscore the profound impact of the right to know on adoptees' self-identity. While the legal definition of the right to know is still a matter of debate, this right seems to function as a mechanism for exercising the right to one's own identity. By exercising the right to know, the adoptee should be able to collect pertinent data to construct their own identity, which can be significantly compromised in adoption scenarios. The right to identity is a comprehensive and all-encompassing right that ensures individuals have the right to exist and enjoy their rights within society, including the right to have a name and surname, nationality, gender, and date of birth.
Unravelling the complexities, this blog post aims to shed light on the intricate interplay between the right to know of adoptees and the right to privacy of biological families in adoption scenarios, particularly concerning the role of the Australian Contact Veto Provision (CVP) in this context. In this regard, the Australian CVP in New South Wales is especially noteworthy. It is one of the few jurisdictions that enforce legislative measures to prevent adoptees from contacting their birth parents. This type of provision was also previously enacted in Tennessee and subsequently repealed in 2022, rendering it ineffectual due to its shortcomings. In 2001, Ireland attempted to implement a CVP in the Draft scheme of a bill on adoption information and post-adoption contact, which was later removed.
The right to know
International instruments lay out the right to access birth information, such as original birth certificates or adoption records, as a tool to preserve one’s identity, in cases of adoption. The UN Declaration on Youth Welfare, Foster Care, and Adoption recognized the significance of birth information in its Article 9. This article requires caregivers of foster or adopted children to acknowledge the child's need to know their background unless contrary to their interest. The UN Convention on the Rights of the Child also guarantees the protection of identity, name, and family connections in its Articles 7 and 8. For last, Article 30 of the Hague Convention on Intercountry Adoption (HCIA) requires competent authorities to protect the child's origins and medical history.
Challenges
Theoretically, the right to know is a vital tool to ensure access to relevant biological information. Yet, its practical application encounters some challenges. First, the right's broad and undefined scope raises questions about adoptees' access to information. Does this right only cover adoption files and birth records? Or should it include family medical records and genetic data? What happens when there is no biological father's record or no document for illegal adoptions? The UN Committee on the Rights of the Child (CRC) asserts that knowing one's biological parents' names, nationality, and family relations is crucial to identity development. This right is so significant that, in cases of illegal adoptions, the CRC recommends states to establish commissions to help victims in re-establishing their true identity. Moreover, a critical issue arises as to whether this right should include access to identifying pieces of information about biological parents or if this right also extends to know the identity of biological siblings as well. This right has an ironic element to it: a right meant to provide access to information still leaves many adoptees in the unknown.
Another challenge is the interplay between the right to know of adoptees and the right to privacy of biological families. When privacy is also protected, as in closed adoptions or anonymous birth, conflicts may arise. In Godelli, the ECtHR explains this complex relationship. On one hand, biological information plays a role in adoptees' psychological development. On the other hand, birth families may rely on their right to privacy to avoid stigma and social exclusion.
Contact Veto Provision
Under the Australian legal framework, the CVP was created as a possible solution for this conflict of rights. The CVP is deemed to be a tool that balances both rights through consent, as one may only contact the biological family via mutual agreement. This blog post focuses on the legal provision still in place in New South Wales that prevents individuals adopted before October 1990 from contacting biological family members. Those adoptions are considered to have occurred in strict confidentiality. If the biological parent does not wish to be contacted, they can lodge a CVP to protect their privacy. The CVP prohibits communication with the biological parents, although it does not necessarily prevent the disclosure of information, if there is any available. However, information will only be disclosed if adoptees provide a signed legal commitment not to utilize that information to seek contact. As an example, Barbara Scott was subject to CVP restrictions, which included a 12-month prison sentence if she violated a Contact Veto. After learning that she had biological siblings, she realised that the Contact Veto barred her from speaking with them. She could only receive her birth certificate but was unable to obtain important family medical history.
What is eye-catching about this provision is that non-compliance may result in monetary penalties or incarceration of adoptees. In summary, one may conclude that it criminalizes the attempt of contact by adoptees. Despite opposition from human rights organizations like Adoptee Rights Australia, some scholars supported this provision as a way to establish a fair adoption disclosure system through consent.
I must, however, point out that the CVP presents significant flaws. The right to privacy should not be treated as the antagonist of the right to know. Instead, guaranteeing that relevant information is available for adoptees might be a way to protect biological families. Adoptees may resort to genetic testing when confronted with a complete lack of information, which could imply a bigger exposure for biological family members. Genetic testing is a type of digital platform that connects users based on their genetic similarities. In this sense, if family members do not want to be contacted in the future, an efficient solution may be to provide as much relevant information as possible for adoptees, including reasons for adoption, extensive medical family history, and the existence of any biological siblings. Instead of acting as an antagonist, the right to know plays a role in the protection of privacy.
Some authors focus on the fair balance between those two fundamental rights: the right to know of adoptees and the right to privacy of biological families. They argue that the right to know the identity of biological parents is not an absolute one, and the state is required to establish a procedure that allows a proportionate and fair balancing of these rights. However, they ignore the fact that the right to know may already be at a disadvantage. This right is predicated on biological families’ consent. Essentially, this right depends entirely on how and whether the biological family discloses information. To establish a CVP is to further strengthen the right to privacy to the detriment of the right to know, as it gives an extra tool for biological families to block contact from those who would like to exercise their right to know. This does not sound as a fair balance of rights. As an example, according to ECtHR case law, while analyzing conflicts of fundamental rights, domestic courts of member states of the Council of Europe should seek for a fair balance of the competing interests. This approach bears resemblance to the Australian Human Rights Commission`s, which likewise emphasizes that there must be a mechanism to ensure that the appropriate balance is maintained, when fundamental rights conflict. While ECtHR judgments are not directly relevant to Australian legal instruments, such as the CVP, - to the extent that Australia is not a State-party to the European Convention on Human Rights - they serve to highlight certain similarities between the European Court of Human Rights and the Australian Human Rights Commission's approach. To summarise, because the CVP appears to give extra layers of protection to the right of privacy, at the expense of the right to know, this mechanism should not be viewed as a balancing instrument. As a result, similar to the ECtHR rulings, any tool that protects the right to privacy to the full detriment of the right to know, should be prohibited in Australia.
Furthermore, as already mentioned, if one sees the CVP as a solution for the protection of privacy, it's important to note that this can be an inefficient tool. The CVP is deemed to protect privacy as a birth parent may have never told their partner, children or grandchildren about surrendering a child for adoption. For this reason, they may lodge the Contact Veto itself as a way of protecting their privacy. However, as previously mentioned, the CVP does not prohibit the adoptee from disclosing their narrative on social media or participating in a genetic testing community database. Through those acts, there exists the potential for the identification of a biological family member by means of other intermediaries. For instance, if the biological mother had other children who joined a genetic community database, a family link will be shown between those individuals and the adoptee, revealing the existence of another child who was adopted.
In conclusion, the tension between the right to know and the right to privacy in adoption cases is a complex issue. While the CVP can be seen as a tool to strike a balance between these rights, it may not be the most effective solution. It actually seems to have the opposite result: it creates even more imbalance between those two rights. It can also prove itself inefficient, as it does not necessarily protect the privacy of biological families, considering the latest technological developments. Ultimately, the goal should be to ensure that adoptees have access to the most comprehensive information they need for their well-being, while upholding the rights and dignity of everyone involved in the adoption process.
Bio
Vivian J. Salles Vieira Pinto is an academic docent at Maastricht University (UM), holding a master's in law from the same institution, funded by the OTS merit-based scholarship. Her expertise lies in diverse fields of law, including conflict resolution and access to justice. Currently, she is a member of the Maastricht European Private Law Institute (MEPLI) and is conducting PhD research focusing on the Rights of Adoptees and Family Privacy.