Gen X at 40

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David -

Should mothers be compelled to give the name of the children's father? For the good of the children, of course.

Alan -

That is interesting. What if the father's side is the source of a disease? Fathers are compelled by law to participate in paternity tests for reasons of child support. Happens everyday.

Arthur -

For the good of the children, of course.

And: Define 'good for the children'? I mean, the reason for adoption is to 'do good for the children' too, no?

Alan -

All other interests, in Canadian law, of the child tend to boil down to "the best interests of the child", Arthur. If you can tell us what that means, you will the right to a Reader Profile post just like Gary's.

Cyn -

When I first became interested in searching for my birth-parents in 1988, I was told by Social Services in NB that I had no right to any information. A few years later I could obtain what they called 'non-identifying information' about my birthparents, and then a few years after that you could register with the Department as an interested party, and if the birthparent(s) registered as an interested party, a reunion would be looked into.

I totally understand why it's hard for these laws to change. As much as I felt I had the right to close that chapter in my book and find out where I can from, I also learned that my birth mother had kept my birth a complete secret her whole life, to the point of blocking it out of her life. The shame associated with being pregnant out of wedlock was enough for her change the course of her life.

Did I have a right to intrude on her? Would she have that right to intrude on my life? My brother's birthparents hired a PI to find him and the term 'shattered' would be an understatment as to how it affected our lives.

Adoption is complex, as it involves a natural yearning for identity later in life and the right to privacy for both the birth parent snad the adoptive parents. Adoptions are very open these days, but there is still the left overs from the shame days, and whether we agree with the sentiment of the era, when it comes to privacy we should still respect the contract or agreement made between all parties.

Alan -

Would it, then, not be better to have a legitimate and standardized legal process to find the information that is needed to be found and the people who are as much in fear of the "secret" than the actual people? As the child is not a party to the agreement, something else is required that works in all instances and gives fair warning to those involved. What other crushing personal secret does the law participate in concealing as a matter of general course without review of the actual state of affairs involving the adults they become in accessible due process under law? As you point out, there is no bar in the finding out. There is only a bar in doing it in a fair and objective manner under law.

Cyn -

True.
The NB registration system worked well for me. I registered and 2 years later my birth mother registered and we were both contacted by a social worker to see if we were interested in sharing more information. Each step of the way was done carefully and with a professional at th helm. No snags.

David Janes -

>> Define 'good for the children'?

That's easy: good for the children is any policy the government wants, we the phrase "for the good of the children" cynically tacked on to sell it. cf. "investment" and "public good", and hey, "right".

The NB system seems to be exactly the way things should be. I certainly don't believe there's any meaningful "right", in the sense of freedom of speech, assembly, etc. to know who your birth parents are. I.e. "I want it" != "my rights".

Arthur -

All other interests, in Canadian law, of the child tend to boil down to "the best interests of the child", Arthur.

I should have said 'define good for the children in the context of 'mothers be compelled to give the name of the children's father'. I think that's doesn't make sense when talking about adoption, the rights of adopted kids and their adoption parents. In that sense, I agree with Cynthia's remark, where she says 'when it comes to privacy we should still respect the contract or agreement made between all parties'.

As for the best interests of the child, Alan, I can call up plenty of examples where these laws that 'are there to protect children' failed.

Alan -

The only think I am advocating is a legal process to allow a case by case review. That could be a tribinal but a court would have greater powers which might be required to review the issues in privacy much as a warrant is now.

Arthur -

The only think I am advocating is a legal process to allow a case by case review.

I understand. I find some questions you pose intriguing. For example you said:

So...what if the parent refused where the child was in need of information about a genetic disporder and needed biological family's medical history. Ought not that interest override shame from an era that is passed?

But, I wonder how many adoption cases (statistically!) we talk about, the ones where lifes could be at stake? And aren't health of biological parents and kids screened? Do adoption laws generally work out well for most of the cases? If I believe the signals I hear, around me, current adoption laws work reasonably well: it's probably not perfect, but most likely good for most of the cases.

Now: what's that with the Reader Profile post you mentioned?

Alan -

The Reader Profile is an on-going series of one so far.

Alan -

Apparently amendments are afoot which will allow a tribunal to bar release after a hearing. Good news.

David Janes -

It doesn't look that great to me. It looks like it's going to be very similar to the abortion laws that were struck down in the 1980s, where one would have to plead in front of a tribunal of superiors one's case for access to one's rights.

Alan -

I think it is the opposite and that is what is good - what will have to be argued is why the release ought not be made. There appears to be a prsumption in favour of release. <p>There is a balance of interests happening where there is no consent by both sides. No one party should have a veto unless there is due process confirming that in the pasticular case the ban on release is reasonable. I note in the article it is stated that the test for upholding refusal will be strict. I will try to grab the amendments when they are published to see what the test actually is. That is where all the meat of these changes will be.

David Janes -

I assume by strict they mean "my boyfriend abused me" or "I was raped".

The presumption in favour of the release is the problem: the deal between the state and the mother was anonymity. Just because some social theorist get it their heads that this is wrong doesn't give the state the right to overturn the deal.

BTW: this is why the reason the only thing I do with censii is sign them -- I don't fill out the information.

Alan -

Calling it a "deal" is a bit off as it is not a vested interest in the way that Pearson airport was. The law often changes without grandfathering privacy expectations - the entire federal regime under PIPEDA is like this for all personal records in private hands. If there were social theorists at play in this it was at the outset when "shame" was the key principle when the other solution was butter box babies in Nova Scotia and eugenics in Alberta. The right to knowledge of one's own personal biological identity should override that except in very few cases <i>especially</i> as there is no right to a ban on access otherwise. People are not barred from hiring PIs and doing something far less sensible as Cyn described.

Alan -

PS - my census altering is restricted to be being called white as I am clearly pink with brown spots. I add Celtic in visible minority as it is a visible trait and clearly in the minority.

Stephanie O'Hanley -

What amazes me is the experiences of other jurisdictions with open adoption records in Canada and across the world demonstrate that a majority of natural parents (usually "birthmothers" a word I hate but I digress), between 95 and 97 per cent want to know what happened to their sons and daughters. A majority wanted to raise them but lacked emotional and financial support from society and their own families to do so. Many were forced to surrender their children for adoption. Yet that's barely reported by the media. Instead Dr. Cavoukian's line has been swallowed hook, line and sinker without checking facts.

There is nothing written down, nothing legal that promises natural parents confidentiality, it's not mentioned at all in the consent to adoption papers. In Ontario the maiden name of the "birthmother" appears on the adoption orders of adoptees born before 1970 (in some cases before 1965) so the "elderly birthmothers" Dr. Cavoukian says she's protecting have already had their privacy violated.

A New South Wales Law Reform Commission report from 1992, <i>Report 69 - Review of the Adoption Information Act 1990</i>, goes into considerable detail about the balancing of privacy and access to information rights in adoption disclosure. Toward the bottom of the page - see this page where it says:<blockquote class="smalltext">6.83 The literature on privacy also indicates no obvious guidelines that are applicable in relation to adoption law. The NSW Privacy Committee has developed principles applicable to situations where personal information is held by officials. Principle 10 embodies the idea that such information may be disclosed to others only in limited circumstances, notably where the person it concerns consented. This principle, however, presupposes that the information is personal to one individual. In relation to adoption information the personal information relates to several individuals, indeed it is about the relationship between individuals. The principle does not assist in determining which of those individuals should have access to the information. Principle 6 is that the person who is the subject of the personal information should be entitled to have access to the record. Again, however, this does not address the question which of the individuals should have access to the records, or what weight should be attached to the fact that some of the individuals believed that the information would be kept inaccessible to others. Principle 7 requires that the record keeper should take reasonable steps to ensure that the information is accurate, and not misleading. This would suggest that amended birth certificates should not be issued, for they are misleading in that they give the impression that the adoptive parents are the child's biological parents. Again, however, the principle was not intended to deal with the special circumstances of adoption.<p>6.84 Privacy, then, is an important consideration, but it refers to a number of different claims. These claims should be respected, but no such claim necessarily has priority over other competing claims or interests. Finally, principles of privacy developed in other contexts do not provide applicable guidelines for the resolution of the issues posed by adoption information law.</blockquote>

Alan -

Thanks for that good research, Stephanie. I did a little layout coding on your comment. I trust it still states what you intended.

David Janes -

Ah, I just noticed that you had responded to my earlier comment, Al.

"Privacy" is a real human right (please feel free to argue otherwise), certainly one that I believe I have.

"Knowing who your birth_mother_ is" happens to be something someone wants, dressed up (as so many things are these days) as a "right". The concept that biology and liniage makes you what you are should have been left in the cesspool of bad ideas that gave us eugenics, separate-but-equal, racial exclusion laws and so forth.

I'd be more inclined to believe the sincerity of the people claiming it's a right if it was coupled with a compulsion to name birth fathers (and a host of related ideas). Otherwise, it's using the word right is just an argument of convienience.

Alan -

I agree for the most part with that except that biological identity - as opposed to curiosity about characters you are next related to - is a matter of the autonomous self of each citizen (how can you have liberty if you do not know what you need to know about yourself?) so therefore it is quite properly a "right" as in relation between the individual and the state's records. [Maybe I do not believe that is a strong distinction as you are what you know yourself to be not what someone else tells you you are.] You do not have the same quality of "right" in relation to other individuals but, also, you are not impeded by the same sort of absolute ban. I also agree particularly with the naming of the birth father but perhaps through your own DNA testing I think you will soon be able to distill out all you need to know about each parent's biology. In then end, the "privacy right" of the parents is a lesser interest than the "right to identity" of the child as far as I am concerned.

David Janes -

Blech! So there :-) Oh, and apropos of nothing, _Madagascar_ sucks.

'nee -

"How can you have liberty if you do not know what you need to know about yourself?"

Does this extend to healthcare - we have a right to complete testing, x-rays, DNS analysis for all? What do we really need to know about ourselves? What about psychoanalysis? I have a right to identity - examine me!

Just a thought. :)

David Janes -

Things don't have to be this way
Catch me on a better day
...
Fix me now
I wish you would
Bring me back to life

Alan -

If you think of those geneticists gatherinh and claiming ownership to the intellectual property in databases of outport Newfoundland DNA groupings, there is a challenge to individuality and identity by the commoditization of characteristics of that identity. So I tihnk we do each have at least a claim to the ownership interest in the output of any analysis of ourselves. Advances in technology should not take that away any more than third party contracts or legal relationships such as in adoption should.

David Janes -

Ah, a slightly different topic. There's an argument for NL collectively doing something with DNA samples and analysis, like Iceland did. However, there's a more than a slight amount provincialness in viewing scientist who take (and profit) from DNA as carpetbaggers.

The profit motive motivates humans to make discoveries _now_ and create benefits that otherwise would not be available to humanity. And in twenty-odd years, the discoveries they make will be part of the common wealth of (free) human knowledge.

Notes:
- my DNA is not what I am

Alan -

It does rather beg the question "whadarya?" though.

David Janes -

Did that make any sense? Maybe it's: I yam what I yam. Some sort of root vegetable, anyway.

Alan -

Our little guy is on a soccer team in orange jerseys this summer so we are working on chants about "the Yams". Apparently there is a distinction between a yam and a sweet potato but I have never understood what. Popeye, however, at spinach.

Alan -

Over two years later, the Court strikes down the law two days after it is brought into force. No access to the actual ruling yet. INterestingly, the article quotes this passage from the ruling:<blockquote class="smalltext">The ruling found parts of the legislation dealing with access to birth registration information unconstitutional. People expect, and are entitled to expect, that the government will not share [confidential personal] information without their consent,"said the court. "The protection of privacy is undeniably a fundamental value in Canadian society, especially when aspects of one's individual identity are at stake."</blockquote>Seeing as privacy is <i>not</i> constitutionally recognized to date, this ruling should be an interesting read.

David Janes -

Woohoo. I thought of you and this discussion when I heard it on the radio at 4. And hell, if they're going to make up shit and call it constitutional, privacy's not a bad one to put in there.

Alan -

That is best explaination of the role of originalism I have seen yet. It is there until I do not like what it means in which case give me the living tree.<p>It will be interesting to see how and where in section 7 the judge makes the jump to privacy where it has not been found before.

karen -

the judgement is online - the applicants successfully argued that their section 7 charter rights were violated by this law. That is exactly what they set out to do.

Alan -

Where is the link?

bob -

here's where i got it. http://www.canlii.org/en/on/onsc/doc/2007/2007canlii38387/2007canlii38387.html

bob -

http://www.canlii.org/en/on/onsc/doc/2007/2007canlii38387/2007canlii38387.html

Jim Kelly -

This is a flawed judgement and should be appealed;

1. As noted in your analysis - privacy is not an acknowledged part of the constitutional rights Canadians have enjoyed. The judgement solely considered Section 7 of the Charter and in doing so it failed to consider the numerated Equality provisions of the Charter. The judgement also failed to consider the Federal Court of Appeal decision in the McKenna Citizenship case in which three Justices acknowledge that those who are adopted can not be treated different than those who are not adopted. The 5% of the population who are adopted have an equality right to access their personal information the same as the 95% of the population who are not adopted.

2. The judgement also failed to consider the United Nations Convention on the Rights of the Child, which guarantees every child, without discrimination of any kind, the right to his or her biological identity. Please see the Supreme Court of Canada decision, June 2007, in the
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27
http://scc.lexum.umontreal.ca/en/2007/2007scc27/2007scc27.html

> "The Charter should be presumed to provide at least as great a level of protection as is found in the international human
rights documents that Canada has ratified."

This international Human Rights agreement which Ontario endorsed and then Canada has ratified in Dec. 1991, was ignored in this decision.

3. This judgement also chose the wrong comparator groups; adopted people v. birth parents . The correct comparator groups are those who are not adopted (the 95% who already have access) v. those who are adopted (the 5% who do not have access). In doing so this judgement is using past practices of discrimination in public service based on family status in order to justify continuing the discrimination. This judgement failed to consider settled Human Rights case law about using wrong comparator groups.

Teri -

As a reunited birth mother I can only say that I firmly believe in open adoption records. I always mourned the loss of my birth child and from all the birth mothers I've met in various groups, they, as I did before meeting my daughter, all yearn to meet and know the child they gave up, and have a need to know that this child was raised in a loving home and is living a happy life. The government should have no right to interfere in an adoptees basic human right to access their birth records.