Coalition for Open Adoption Records
July 10, 2005
Misinformation from the Privacy Commissioner
in
Fact Sheet on Adoption Information Disclosure, June 29, 2005
Found on the web site of the Information and Privacy Commissioner at the following
link
Error #1: Adoption Orders are easy to obtain
The privacy commissioner says: “The original adoption order is provided to adoptive parents by the Court, and a copy may only be disclosed to an adopted person by the Registrar of Adoption Information in exceptional circumstances.6 Accordingly, the current statutory framework reinforces the confidential treatment of these records to date.” See “Confidentiality and statutory framework” in Commissioner Cavoukian’s Fact Sheet on Adoption Information Disclosure.
Call 416-327-4730
You will hear the message: “Welcome to the Ministry of Community & Social Services, Adoption Unit.” After pressing more numbers you will be asked to provide your name and other information to receive a copy of your adoption order, and then you hear that it will take two weeks to have it mailed to you at a cost of $15.
How could this be? The privacy commissioner says that it is sealed—permanently, out of sight from the public and even from adopted people to whom it applies.
Here’s how: Simply ask one of the thousands of adopted people who have their adoption orders — mailed to them by the government. The privacy commissioner misread the law. The Child and Family Services Act allows adult adopted people to obtain copies of their adoption orders. Read section 165. (1) and (2).
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"I have never heard of anyone being turned down."
Linda Faraday, Adoption Disclosure Unit
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Why all the fuss? Most adoption orders contain the surnames of birth mothers (all before 1970). This is identifying information. Yet, the commissioner asserts that the law guarantees confidentiality of the mother. It does not.
Error #2: It is not the mandate of the IPC to comment on the privacy implications of proposed legislation
The privacy commissioner says that it is her mandate to comment on the privacy implications of proposed legislation. Is it?
In a previous press release, she said:“I have a solemn statutory duty as the Information and Privacy Commissioner of Ontario and an Officer of the Legislature to provide public comment on the privacy protection implications of proposed legislative schemes or government programs. This is enshrined in section 59(a) of the Freedom of Information and Protection of Privacy Act [FIPPA}. . . . “
Is it really? Here’s what FIPPA, section 59(a) actually says:
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proposed legislative schemes or government programs"
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So where is the “mandate”, the “solemn statutory duty…to provide public comment” that is “enshrined” in the law?
There is no such duty or requirement in the legislation. What the law says is very different. The Commissioner may speak, but it is not her duty or responsibility to do so. The commissioner’s role is not as clearly defined or mandated as she would appear to like it to be.
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As a birth mother who supports Bill 183 and was not promised confidentiality in a "written" or so called "social" format, contrary to what is suggested, my question and concern is, at what point does an advisor to the sitting government stop simply advising and become a lobbyist?
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Commissioner Cavoukian exaggerates her role and then, uses the misperception generated by the overstatement to provide herself with the privilege and authority to attack Bill 183, the Adoption Disclosure Act.
Error #3: The commissioner misrepresents the Ontario Association of Children’s Aid Societies (OACAS) and the truth of adoption history
The OACAS is the umbrella organization of all Children’s Aid Societies in Ontario. In 2001, the OACAS supported a bill without a disclosure veto in its document Submission to the Standing Committee on General Government Regarding Bill 77: Adoption Disclosure Law Amendment Act, 2001.
The OACAS also supports Bill 183, a bill that does not include a disclosure veto.
The commissioner said: “…the Ontario Association of Children’s Aid Societies submitted that from the time of the Adoption Act of 1927 until 1979, “adoption records were sealed” and all parties in the adoption process were “guaranteed secrecy.”
As well as not supporting a disclosure veto, the OACAS did not represent adoption history as “all parties in the adoption process were ‘guaranteed secrecy’ from 1927 to 1979.
There were no promises of secrecy in 1927. Only the public could not know the identities of birth parents, adopted children and adoptive parents.
In fact, Bill 183 would restore much of the privacy enabled in the 1927 Adoption Act. Birth parents and adopted people would be able to know their identities – just like in 1927 when there were no disclosure vetoes.
Error #4: The Alberta adoption law is different
The commissioner misrepresents Alberta when she says: “Some supporters of Bill 183 have pointed to the absence of reports about contact veto violation in Canada as an indication of their effectiveness. However, in provinces with contact vetoes (British Columbia, Alberta and Newfoundland), few contact vetoes have been filed. In fact, the vast majority of concerned individuals opt for the greater protections offered by a disclosure veto.” See “The Canadian experience” in Commissioner Cavoukian’s Fact Sheet on Adoption Information Disclosure.
Alberta has no contact veto.
Consequently, no one would or could file for it because it does not exist.
Error #5: The commissioner quotes an anonymous social worker who knew she had broken the law
The commissioner cites an anonymous letter from a social worker: “…a social worker who worked for 35 years with a children’s aid society, confirmed that assurances of confidentiality were routinely given to birth parents. In characterizing these assurances, she stated, “our word was our bond” and said that it was ‘with shock and dismay’ that she was witnessing a change in the adoption disclosure law that would reveal a birth mother’s identity.”
Why would the commissioner quote and cite as an authority an anonymous social worker who knew that she had repeatedly misrepresented the law? Who knew that adoption orders had the surnames of mothers on it? Who knew that there was nothing in the law that guarantees any privacy to the mother whatsoever? Who is next? Are Ontarians now to expect that the opinions of anonymous government employees have force in shaping our laws?
What do contemporary Canadian social workers think about adoption disclosure?
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I have worked in the child welfare field for over 40 years, in three provinces, and have known hundreds of birth parents and birth parent organizations. The majority of them wants the best for their children and support this bill. I also worked in Ontario in the 60s. We were not promising anonymity even then, as we knew the harm that it was doing to adopted children.
Sandra Scarth, adoptive parent and President of the Adoption Council of Canada (ACC), Board member of the North American Council for Adoptable Children (NACAC)
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And what about the mothers?
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"I feel very frustrated because I consider myself more of an expert on being a raped birth mother than Ann Cavoukian or anybody else. I feel that all my pain, all the abuse, all the money I have spent in therapy, all the education I have acquired in university to try and help law makers and others understand is not listened to and is being completely dismissed."
From a mother who had been raped. Reunited with two sons.
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“I vividly remember several girls who were so traumatized by everything that was happening to them in the maternity home and in the hospital. We all have our own private way of dealing with the trauma that we all lived through and continue to live through. I often wonder about these poor young girls..........and what became of them. Like the rest of us, they did not want to let their babies go and none of us wanted to be hidden away in the maternity home. We were angry, frightened, and lonely. How any of us ever survived all that we lived through, is beyond me. I consider myself one of the lucky ones because I didn't kill myself. I just died inside...”
From a mother, reunited with her son after 35 years.
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Error #6: The United Nations Committee on the Rights of the Child clearly recommended to Canada that adopted children be given their identifying information.
In its recent review of Canada’s participation in the Convention, on October 3 2003, the Committee on the Rights of the Child said:
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9. The Committee urges the Federal Government to ensure that the provinces and territories are aware of their obligations under the Convention and that the rights in the Convention have to be implemented within all the provinces and territories through legislation and policy and other appropriate measures.
24. The Committee values that the State party [Canada] upholds the principle of the best interests of the child to be of vital importance in the development of all legislation, programs and policies concerning children…
31. The Committee recommends that the State party consider amending its legislation to ensure that information about the date and place of birth of adopted children and their biological parents are preserved and made available to these children.
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Yet, in support of her contention that adopted people do not have an unqualified right of access to their identifying information, the commissioner quotes the earlier Article 7 of the Convention on the Rights of the Child:
“Some who support Bill 183 contend that they have an unqualified right of access to the identifying information of other individuals.”
“In support of this view, some argue that Article 7 of the United Nations Convention on the Rights of the Child (the Convention) provides an unqualified right of access to birth parents’ identifying information. This is incorrect. Upon reading the Convention, it becomes clear that it recognizes that the right of access is a qualified right.” See “There are no absolutes” in Commissioner Cavoukian’s Fact Sheet on Adoption Information Disclosure.
Why does the commissioner not recognize the latest ruling from this committee?
Why does the commissioner fail to recognize the “best interests of the child” as paramount?
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“The feeling of being rootless, of having no solid ground, of being without an anchor was something that I had become uneasy with. I had no core sense of self and was realizing that something was absolutely ripped out of me that could not be replaced. When I began my search I realized there was something completely missing for the rest of my life and it affects, to some degree, every decision I have made.”
Karen D. Sterner, adopted person.
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Error #7: Adoption disclosure has caused harm in other places
Adoption professionals overwhelmingly support adoption disclosure.
In every jurisdiction with years of experience in adoption disclosure, adoption professionals support the disclosure of identifying information. The commissioner often cites the Australian experience to caution against full adoption disclosure.
“There is also anecdotal evidence from other jurisdictions such as New South Wales and Tennessee to suggest that contact vetoes are sometimes violated and that some individuals who have been found by their biological relatives report suffering harm.” See “Research on adoption disclosure” in Commissioner Cavoukian’s Fact Sheet on Adoption Information Disclosure.
Australia has had many years, in all states, to learn about adoption disclosure. Western Australia recently removed its disclosure veto and New South Wales has no disclosure veto. An Australian social worker, alarmed by the controversy over the disclosure veto in Ontario, recently submitted this letter to the National Post:
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I am a social worker who has worked in post-adoption services in Australia for the last sixteen years. In all states and territories of Australia, adults who were adopted as children have access to their original birth certificates and adoption records with details of their parents’ names and such other information as was recorded at the time of the adoption, when they reach the age of 18 years. In all states and territories except one, mothers who have been separated from their children by adoption have access to the new birth certificate issued to their children after the adoption, with the child’s adoptive name, when that child reaches the age of 18 years. Fathers and other family members also have the right to access information under certain circumstances.
South Australia, the state in which I live, was the first state in Australia to introduce legislation to grant equal access to adoption information to adopted adults and their mothers with the Adoption Act of 1988. Over the last 17 years that the act has been in operation, I have been involved in many reunion situations and in all cases there have been benefits to those involved in learning the truth, having the ability to make decisions based on facts and finally being able to confront reality.
The history of adoption legislation has to some degree paralleled the history of other areas of social policy. Fifty years ago, for example, in many countries anyone who set up a business was assured that they could chose staff who fitted in with their personal prejudices and that they could pay female staff less than male staff. However, no government now feels obliged to honour those assurances, just because they were given. We now have anti-discrimination laws and equal opportunity legislation which protects people from exploitation and supports them to achieve their full potential in an equitable work environment.
Numbers of adoptions increased dramatically from the middle of the last century. If mothers who lost children to adoption were indeed promised lifelong confidentiality fifty years ago, when social workers were unaware of the long term impact of adoption separation on mother and child, then there is no obligation on any government to honour those assurances, just because they were given. Our society has progressed in knowledge and social awareness in the last fifty years and policies and practices which were acceptable then are now seen as outdated and in some cases positively abhorrent and alarming.
We are now aware that the grief caused by separating children from their parents and families through adoption is a grief which is not easily addressed and which is often buried for many years. Governments have a responsibility to support those affected by adoption separation to address their grief issues and to put in place legislation which reflects the social awareness of our times, not the ignorance of fifty years ago.
I have confidence that the legislators in Ontario will indeed bring adoption legislation out of the dark ages when confidentiality and privacy actually meant deceit and secrecy and into the twenty-first century where we recognise the role of openness and honesty in promoting healing.
Evelyn Robinson, Author & Counsellor Author of: Adoption and Loss: the hidden grief, Clova Publications, 2000, and
Adoption and Recovery: solving the mystery of reunion, Clova Publications, 2003.
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Error #8: With or without a disclosure veto in Bill 183, medical information will be available
See “Accessibility of anonymized medical information” in Commissioner Cavoukian’s Fact Sheet on Adoption Disclosure.
Madelene Ferguson Allen had been reunited for many years with her family of birth. Ferg was having a seemingly unremarkable conversation with her mother who casually mentioned that glaucoma runs in the family. Ferg, she said, should get her eyes checked. Ferg took the advice and was quickly diagnosed with a rare form of eye cancer. The prognosis was good because of the early diagnosis. Sadly, despite the prediction of a likely cure, the cancer spread and Ferg passed away on August 13, 2003.
Before she died, Ferg said that she was very pleased, though, that her entire first family — including several siblings and their offspring — were on the alert for this potentially inheritable disease.
For years before she died, Ferg was a passionate advocate for open records. She had seen the joy and healing that had resulted from her own reunion. Her mother who had suffered from the loss of her child welcomed Ferg back into her life, and Ferg filled the gaping hole in her own identity. Her own children had learned their roots and all of the diseases and conditions that they might inherit. Ferg felt whole again.
Madelene Ferguson Allen is the author of Reunion, The Search for My Birth Family, Stoddart, 1992.
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"The biggest obstacle we now face in Ontario, aside from funding problems, is the adoption law which creates a barrier which cannot be crossed…I frequently see patients -- perhaps every month, perhaps every two weeks -- in their forties and fifties who are dying of a serious disease that they passed onto their children. But they cannot find their children. And their children, therefore, will die of the same disease their parents do because we cannot contact them to bring early treatment and diagnosis. That, I suspect, is occurring on a regular basis for adults."
Dr. Philip Wyatt
Chief of Genetics, North York General Hospital
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Bottom line, there are about 3000 inheritable diseases, many of which are fatal if not detected early. Secrecy kills.
Error #9: Research on adoption disclosure
ommissioner Cavoukian opens this section of her fact sheet with a statement critical of the state of adoption research. Citing anonymous researchers, she states: “...many researchers have noted the methodological shortcomings of the research in the area and the limitations that may be drawn.” What the IPC does not say is that all research in the social sciences may be criticized for methodological shortcomings and furthermore, it is in the nature of the social sciences to start any investigation with a methodological critique of past work. What this means is that research conclusions are stated in conditional terms, as competent researchers know full well that few studies are robust enough to support absolute conclusions. With that being said, if across studies, settings, researchers, social contexts and time, trends emerge, then there is some justification for drawing conclusions, albeit with the understanding that future research, conducted in different contexts might yield different results.
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There are 40 years of research, demonstrating the psychological need to know one’s kin, the emotional costs of being denied the opportunity to resolve issues of grief and loss, and the positive benefits of openness in adoption.
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The IPC then goes on to state that there has been “no comprehensive, systematic, longitudinal research on the impact of the disclosure of adoption information, contact vetoes, or disclosure vetoes, using representative samples of adopted persons, birth parents and adoptive parents.” (Exactly why adopted parents are part of her critique is not made clear as the issue under discussion relates to adopted adults and their birth kin.)
In this respect, Commissioner Cavoukian is correct. There has been no one definitive study assessing the effects of disclosure of information. However, there are 40 years of research, demonstrating the psychological need to know one’s kin, the emotional costs of being denied the opportunity to resolve issues of grief and loss, and the positive benefits of openness in adoption. Furthermore, because it is not always possible to conduct conventional research studies on the effects of openness, it is necessary to look at multiple sources of information, knowing full well that while one study proves nothing, trends add support to a conclusion. Thus, when one looks to all of the jurisdictions that have allowed unrestricted access to identifying information, including Scotland in 1935 and England in 1979, it is remarkable how minuscule is the number of individuals who have come forward stating that others’ access to identifying information has had a deleterious effect on their lives. Commissioner Cavoukian tells us that there has been one formal complaint in New South Wales. Is zero tolerance her standard for the negative effects of access to information? Setting the bar so low might help her to make a case, but it is not a standard that reflects the lives of those in adoption.
What of Commissioner Cavoukian’s challenge that most studies “...have been methodologically flawed using samples of self-selected individuals, often recruited from adoption support groups and websites that advocate search and reunion and lobby for adoption disclosure legislation.” Again, Commissioner Cavoukian is correct to a point. Many studies are flawed by sampling bias. However, when those studies with better sampling yield results similar to ones found in studies using selected groups, there again is justification for drawing conditional conclusions. The fact is that while there is much documented support for access to information, the research record is devoid of evidence to the contrary. It is also disingenuous to imply that those who have been harmed by disclosure of information are simply too frightened to come forward or not knowledgeable enough to make their experiences known. Almost all studies have offered anonymous opportunities to express negative experiences. None report the devastating consequences of open records that Ms Cavoukian implies will follow the passing of Bill 183.
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Some researchers became disclosure advocates for the very reason that their data demonstrated that access to information served the overall best interests of the adoption community.
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But perhaps the reason that we see no negative research reports concerning access to information is that “...some of the research has been conducted by adoption disclosure advocates, raising questions of researcher bias.” Again, Commissioner Cavoukian tells us only part of the story. What is missing is that the researchers who have not been known as “disclosure advocates” have generated results that in no substantial way differ from those who have a clear political agenda. Commissioner Cavoukian also fails to note that some researchers became disclosure advocates for the very reason that their data demonstrated that access to information served the overall best interests of the adoption community. Thus, advocacy was a consequence of the research, not a motivator for generating flawed data.
Finally, Commissioner Cavoukian tells us that “...in spite of the potential bias favouring positive outcomes, studies have consistently found a small but significant portion of individuals who were adversely affected by the disclosure of adoption information.” What she fails to mention is that in none of these studies are the effects of prior mental health status removed, before examining the effects of disclosure of information. If troubled individuals remained in a state of distress following disclosure, then the seemingly negative consequences of disclosure are best accounted for by prior mental health status, not disclosure per se. Methodologically, one simply should not be drawing such a conclusion from the data.
Error #10: A balanced approach
Commissioner Cavoukian claims that “the retroactive application of proposed adoption disclosure legislation necessitates the inclusion of a disclosure veto to balance the rights of access and privacy.”
Does a disclosure veto provide balance?
Most adoptees and birth parents who search for each other are hoping that an initial meeting will grow into a relationship. They want to know the name of the other person and they hope to meet and form a relationship. However, some birth parents and adopted adults do not want to build a relationship and would prefer that their names to remain hidden.
A disclosure veto ensures that one person gets everything she wants while the other person gets nothing. The searcher gets neither a name nor a relationship, while the person filing the disclosure veto gets to remain hidden and is able to ensure there can be no relationship.
This is not balance.
Balance occurs when both people compromise.
A contact veto, such as the one in Bill 183, does provide balance.
The searcher can find out the name but is forbidden to contact the other person and therefore cannot have the longed-for relationship. The other person’s name is released but her privacy is maintained by ensuring there can be no relationship,
Contact vetoes provide balance – Disclosure vetoes do not.
These are only a few of the contradictions, errors, misleading statements and misrepresentations in the privacy commissioner’s Fact Sheet on Adoption Information Disclosure. One could debate “the facts” of the need for adoption disclosure forever and still never agree. But the real need for adoption disclosure cannot be pinned down by facts. It can be said with complete surety that it’s about forces much larger. It’s about the real human, profound and archetypal need to understand identity through knowing one’s roots—our ancestors. Who do I look like? Do I think and act like them? Where did they come from?
The greatest scientists among us cannot explain this basic human yearning for roots, where one fits into the great—possibly divine—scheme of evolution. Stephen Jay Gould reflected on the quandary in his last essay in Natural History Magazine:
“I do not pretend to know why the documentation of unbroken heredity through generations of forebears brings us so swiftly to tears and to such a secure sense of rightness, definition, membership, and meaning. I simply accept the primal emotional power we feel when we manage to embed ourselves into something so much larger”.
Forbidding knowledge of their roots means shutting people out of their own place in the great scheme of evolution. Forbidding mothers and fathers from knowing the identities of their own children shuts them out of their primal need to know how their children fared and their very descendancy. Both practices are cruel manifestations of bygone values that have no place in this century.
For further information contact the COAR Coordinating Committee