Health, Legal, Human Rights and Democracy Issues in Adoption

by Jean-Pierre Arcoragi

The confidential nature of adoption records in most Canadian provinces and American states:

In North America, around 50 million persons are partly or totally ignorant of their heredity due to the secrecy traditionally associated with the adoption process. That so many people have incomplete medical records is not surprising when we consider the fact that adopted persons are now parents, and in many cases grandparents, passing on their ignorance of their own heredity to their children and grandchildren. But there is worse, since in many cases, people give their physicians the hereditary background of their adoptive family as being their own not knowing that they themselves have been adopted or are descendants of adoptees. In most Canadian provinces and American states, legislators have enacted laws that create the illusion that the adoptive parents are the biological parents, thus acting as if they could repeal the laws of biology. In so doing, legislators are risking the lives of many citizens. In North America, the confidential nature of adoption records means that, every day, thousands of surgical operations are carried out on the basis of incomplete or false medical records. How can a doctor prescribe drugs safely when one person out of every six is ignorant of his or her own hereditary background? How can a democratically elected government tamper, either actively or passively, with the integrity of medical files, one of the pillars of modern medicine? Confidentiality surely leads to many human tragedies and is in some way reminiscent of the tainted blood scandal, a scandal which is rocking at this very moment the foundations of the Canadian government. People in power should know, based on a purely epidemiological analysis of the situation, that confidentiality can kill people.

II- Democracy

In a democracy, it is voters that delegate the power of the people to legislators. Therefore, legislators do not have the right to enact laws that lie, either directly or indirectly, to voters or a group of voters. If they choose to do so they exceed their mandate and undermine the legitimacy of the state. Usually when we discuss adoptees we think of minors but in reality most adopted persons are adults that have the right to vote for their representatives. How can legislators think that they have the power to hide the truth to voters and still have the mandate to represent them? Adoption is a legal process where the adopted person is considered a third party and thus has no right to review the process that led to his or her adoption. The fundamental reason why a person is not allowed to view his own records is that adoption is, in legal terms, a transaction involving human beings as a commodity. How can a democracy consider a citizen a commodity that can be traded?

In fact, when legislators promised confidentiality to biological mothers, they exceeded their mandate since they used the powers of the state to hide the truth to citizens that were at that moment unable to defend their rights, the adoptees, in order to protect people that were viewed at that time as having committed an immoral act, the biological parents. In practice, the "open records" legislation enacted more than ten years ago in New-Zealand and the one adopted last year in British-Columbia have shown that less than five percent of biological mothers wish to remain anonymous. Why penalize the vast majority of people, including the extended biological families, when a simple veto mechanism can protect the few that want to maintain their privacy?

On the other hand, some adoptive parents claim that they agreed to adopt because they were promised that the natural family would not intrude in their private lives. If adoptive parents feel that their young child should be protected from the influence of his or her biological family that is their prerogative. But to extend this concept to adult citizens is ridiculous since in a democracy adults have the right to associate.

How can adoptees accept current adoption laws when they know that some legislators that voted for those laws probably wanted to hide the fact that they or somebody close to them had an illegitimate baby?

How can a citizen participate fully in the democratic process if the state uses its powers to hide or destroy his or her own records? Legislators have exceeded their mandate when they agreed to enact legislation that would hide the truth to a future generation of voters. Furthermore, they are exceeding their mandate at the present time when they choose to maintain confidentiality.

III- Human Rights

This year we are celebrating the 50th anniversary of the Universal Declaration of Human Rights. And yet, due to the confidential nature of adoption records, many in North America are denied their inalienable human rights. When legislatures maintain closed adoption records they are violating the following articles of the Universal Declaration of Human Rights:

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2. (first part) Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 25, Section 2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Furthermore, the International Convention on the Right of the Child says that we should not discriminate according to the circumstances of birth. Article 7 of the Convention says that the child shall have the right, as far as possible, to know his or her parents. Some argue that only those people adopted after 1989, the year when the Convention was signed, should benefit from the rights described in the convention. Those people should remember that when slavery was abolished all slaves were freed and not only their unborn children! If the rights of one person are not respected then the rights of everyone are in danger.

IV- Legal issues

Let us consider the following statements:

Therefore, if the above statements are true then we might conclude that some legislators and some physicians involved in setting up and maintaining the secrecy around adoption issues had a criminal intent to falsify medical records and should be prosecuted. But, in any case, in order to maintain public confidence in the medical system it is imperative that people should know that they have been adopted.

V- Conclusion

Adoption is one of the more noble human institutions for it allowed millions of children to have a normal childhood. It also allowed many couples to create a family and contribute more fully to society. Finally, it gave biological mothers the knowledge that their babies would be safe and would lead a normal life. It also gave them the opportunity to have a new start in life. But in a democracy the ends do not justify the means.

The Universal Declaration of Human Rights and the International Convention on the Rights of the Child, our medical and legal systems and the very nature of the social contract that allows us to live in a democracy demand that legislators remove confidentiality as it now stands. Closed adoption records violate human rights, the integrity of the medical system and undermine the legitimacy of the state.