6.1 This Chapter sets out what the Commission regards as the basic principles of the Adoption Information Act 1990, and discusses whether the review indicates that these basic principles require reconsideration. The Adoption Information Act and the Adoption Information Regulation are reproduced in full in Appendix A.

BASIC PRINCIPLES OF THE ACT

Information rights for birth parents and adult adopted persons

6.2 The Act includes among its objects giving adopted persons and birth parents “greater access” to information about each other.¹ The Act gives to adult adopted persons the right to obtain the original birth certificate, and the right to prescribed information.² While it is a matter for the Regulation what information is prescribed, the birth certificate itself includes information which will normally allow the adopted person to trace the birth parent. The Act, therefore, embodies the principle that the adopted person has a right to the original birth certificate and to information that is capable of identifying the birth parents. Similarly, the Act gives to birth parents of adult adopted persons the right to obtain the amended birth certificate, and thus to information that would normally enable them to trace the adopted person, through the adoptive parents.³

6.3 These rights to information are absolute in that they are independent of the wishes of other persons. The rights to information do not depend on the prior consent of the person identified, nor do those persons have the legal power to prevent the exercise of the right, although they do, under the contact veto provisions, have the power to forbid contact by the information recipient.⁴

Information rights during adopted person’s childhood

6.4 Under the Act adoptive parents retain full parental rights. Thus they have the same rights as other parents to make decisions about their children, including decisions about what information should be made available to their adopted children under the age of majority. The Act’s objects include the preservation of the adoptive parents’ control over information while their children are under 18.⁵ The Act also gives adoptive parents additional rights, during the child’s minority, to non-identifying information about the adopted child’s biological family.⁶ The law at present does not give to birth parents a corresponding right to non-identifying information about the adopted child. Consistent with the other consequences of majority, once the child turns 18, the adoptive parents have no rights to information or birth certificates (except to the adopted person’s birth certificate, with the consent of the adopted person).

Protecting the privacy of adopted persons and birth parents by the contact veto system

6.5 The Act’s objects include protection of “the privacy of adopted persons and birth parents” by establishing the contact veto system.⁷ As noted above, this does not restrict the information rights created by the Act. The Act thus seeks to protect privacy by forbidding contact with a person who has indicated a wish to prevent contact, but does not restrict the information rights created by the Act.

Protecting the privacy of adoptive parents and others affected by the Act

6.6 The Act also includes an object that applies to persons generally, and would include adoptive parents and other family members. It is to limit “the disclosure of information concerning the personal affairs of persons that might unduly intrude on their privacy”.⁸ The word “unduly” clearly involves questions of judgment. Clearly disclosure that is necessary as a consequence of specific provisions of the Act, such as the identifying information contained in the birth certificate, cannot be included in the category of information that “unduly” intrudes on privacy, for such an interpretation would frustrate the principal provisions of the Act. The Act seeks to prevent disclosure of personal affairs in a way that would intrude on the person’s privacy and is not necessarily involved in giving effect to the information rights created by the Act.

Information for relatives

6.7 The objects include giving “relatives of adopted persons and birth parents and other persons access to information concerning adopted persons’ origins in special circumstances”.⁹ The Act provides, though in a very limited way,¹⁰ for the discretionary provision of such information to relatives and certain other people after the death of an adopted person or birth parent. The limitations on these provisions would appear to be based on the principle that during the joint lives of adopted persons and birth parents it should be a matter for them to decide what information to reveal to other people, including other family members, but after the death of one of them it might be appropriate to provide information to another member of the family.

Retaining the Adopted Persons Contact Register

6.8 In retaining the Adopted Persons Contact Register (renamed the Reunion Information Register) the Act may be considered to have among its basic principles the facilitation of reunions between people separated by adoption who have indicated their desire to have a reunion.

Summary of basic principles of the Act

6.9 To sum up, the following may be regarded as the basic principles of the Act:

1. Providing rights to adult adopted persons and birth parents to birth certificates and thus to identifying information about each other, such rights being absolute in that their exercise cannot be prevented or limited by the person to whom the information relates, or by other persons.
2. Protecting the full parental rights of adoptive parents, and providing, in addition, rights to non-identifying information about the birth family during the adopted person’s childhood.
3. Protecting the privacy of birth parents and adopted persons by making provision for each of them to forbid unwanted contact resulting from the release of identifying information under the Act.
4. Protecting the privacy of all persons by limiting the disclosure of information that unduly intrudes on their privacy; this provision would not however limit the disclosure of information which was necessarily involved in giving effect to the information rights created by the Act.
5. Providing to members of the family, on a discretionary basis, information relating to a deceased adopted person or birth parent.
6. Facilitating reunions between adopted persons, birth parents, and other people approved by the Director-General, where those persons have indicated their desire for such reunions.

(i) any discrepancy between the experience of the Act and the expectations of Parliament;

(ii) the experience of similar legislation elsewhere; or

(iii) submissions made to the Commission.

PARLIAMENT’S EXPECTATIONS

6.11 The legislation received the support of all Members of Parliament except one during debates on the Adoption Information Bill in 1990. It is useful to consider the extent to which the actual operation and impact of the legislation to date matches the expectations of Parliament. Some submissions argued that the experience since the legislation began indicated that Parliament had seriously miscalculated what would happen. One such view is found in the suggestion that the Act had clearly failed because only a small minority of those entitled to obtain information actually did so. The argument was that Parliament had assumed that a majority of people entitled to information would seek it, and the failure of many to do so showed that the Parliament was mistaken.

6.12 Assessing the opinion or intention behind a decision made by a large body is notoriously difficult, and often artificial. However in the case of the Adoption Information Act 1990, the Report of the Willis Committee and the extensive Parliamentary debates in both chambers, indicate a considerable consensus about how the law was expected to operate. It is therefore possible to compare the expectation with the reality, at least to the extent of identifying whether the operation or effects of the Act have differed markedly in important respects.

Adoptees

6.13 Access to information about their origins by adoptees was supported in Parliament on three grounds: a matter of human rights; for their psychological well being; and for practical application in relation to genetic inheritance. The deeply felt emotional and psychological need to know, the phenomenon of genealogical bewilderment in adoptees, was accepted as validity for giving them the opportunity to have information previously withheld. It was expected that the rights would be exercised responsibly by mature decisions of adults and bring consequential benefits to personality, security and happiness.

6.14 It was also accepted that adoptees would seek information about their origins, notwithstanding the appreciation, loyalty and love they felt towards their adoptive parents.

Few, if any, seek replacement parents, financial windfall or access to an alternative lifestyle. Rather, they seek information of a basic nature on the background of their birth parents. In some cases they seek contact, and perhaps friendship.¹¹

6.15 Evidence put to the Commission in this review confirms Parliament’s expectations of the legislation as it relates to adoptees seeking information.

Adoptees unaware of their adoptive status

6.16 Parliament and the Willis Committee recognised the implications for adoptees who are unaware that they are adopted, and the dilemma it creates for their adoptive parents. Although there were no statistics available as to the extent of people so affected, Parliament accepted that only a small percentage of adoptees would be in this situation. This may be an underestimation in the light of evidence received by the Commission during this review.

Birth parents

6.17 There is frequent reference to the circumstances in which birth mothers gave up their children for adoption. Many speeches echoed the following statement by the Willis Committee:

Perhaps in the majority of cases women who had given up children for adoption remained emotionally and psychologically scarred and even traumatised by the event and had a deep-seated need at least to know that their child was well, happy and was being raised in an atmosphere of love and security.¹²

6.19 The majority of birth parents who exercised their rights were expected to achieve peace of mind by access to information about their relinquished children. The results of the Commission’s inquiry, set out in Chapter 5, are entirely consistent with these expectations.

Proportions who would exercise rights

6.20 Neither the Willis Committee nor the Parliamentary debates discuss the question of what proportion of adopted persons or birth parents would exercise their rights under the Act. The general nature of the debate related to the right of individuals to have access to information, rather than to the number who would exercise those rights. However the Willis Report states that “a significant proportion of adoptees have a deeply felt emotional and psychological need to know about their origins”. The evidence available to the Committee from other jurisdictions and in research literature makes it clear that a minority of people entitled actually exercise their rights. These is no reason to believe that the Parliament’s views were based on any particular prediction about the frequency of applications. In particular, there is no reason to think that its decision in any way depended on a prediction that a large proportion of those entitled would seek information. In fact, the use of the legislation in New South Wales is not markedly different from what must have been expected.

Opponents to contact

6.21 The Willis Committee and Parliamentarians assumed that a “relatively small number of birth parents and adoptees” would wish to maintain their privacy and be opposed to contact. This too has been generally supported by the Commission’s investigation, although the numbers of adoptees opposed to the release of identifying information about themselves may have been a little higher than expected.

Adoptive parents

6.22 The situation of adoptive parents, especially those who had not told their children they were adopted, was carefully considered in the debates. It was recognised that the Act would trouble some adoptive parents. The Willis Committee wrote:

A major concern was the need to protect the unity and integrity of the adoptive family and to ensure that the security of the adopted child was not threatened by unwanted intrusion from a birth parent. Most also indicated that they were prepared to support and even help their children if they themselves wished to have contact at some point. Adoptive parents constituted the majority of those who opposed granting access to identifying information. Their reasons centred mainly on fear of the emotional turmoil to which adoptees could succumb as a result of awareness that a birth parent, a complete stranger, could appear at any time; fears were also expressed about birth parents suddenly emerging and ‘reclaiming’ the adoptee. Other reasons presented included the argument that the maintenance of secrecy had been guaranteed at the time of adoption and that such guarantees must continue to be honoured; and that the mere knowledge that a birth parent was seeking identifying information about an adoptee had the potential to disrupt severely the unity of the adoptive family.¹³

6.23 However, the Committee thought that in reality those who oppose granting access “have little or nothing to fear from a liberalisation of the system”.

6.24 The evidence available to the Commission on the situation of adoptive parents under the new legislation has been considered in some detail in Chapter 5. Although the evidence strongly supports the view that the vast majority of searchers behave with great consideration for the rights of the persons sought, it also highlights the extreme anxiety with which some adoptive parents, and some adopted persons, regard the possibility of contact. This anxiety, whether justified or not, is itself a cause of considerable distress, for it affects a large number of adoptive parents, and as a result no doubt, members of their families. It is also a factor that is likely to decrease the chances of a positive reunion experience. It is clear that Parliament anticipated that the Act would generate such anxiety, and attempted to respond to it through the contact veto system. In Chapter 7 the Commission proposes a number of additional measures intended to respond to these concerns without significantly undermining the basic principles of the Act.

Nature of contacts and outcome of reunions

6.25 Several contributions to the debate echoed the view of the Willis Committee that most searchers would respect the wishes and rights to privacy of the persons sought: “[t]he great majority of adopted persons will exercise these rights responsibly”¹⁴ and “[t]hose most sensitive to the needs and feelings of the other party in an adoption are those most directly involved.”.¹⁵

6.26 It was anticipated that vetoes would be complied with in the majority of cases, both because of respect for the other person and because of self-interest: a relinquishing mother who wanted a reunion, for example, “would not put that opportunity at risk by making the wrong approach”¹⁶ It was predicted, however, that the veto might sometimes be broken. It was expected to work in most cases, except maybe those of “obsessive people”.

6.27 A number of submissions to the Commission complained that media presentation of the laws gave so much attention to happy reunions that it created false optimism. The Willis Committee and the Parliamentary debates, however, indicated an awareness that not all reunions would be positive experiences. The material in Chapter 5 indicates that in the Commission’s view the expectations about contact and reunions generally correspond with experience under the Act.

Conclusions

6.28 The Willis Committee recognised the difficulties in legislating for access to adoption information. “I fully understand that our recommendations will not please all people in all things ... It will be beyond the wit of mere mortals to produce something which satisfies all situations...”.¹⁷ In general, the Act has operated very much in the way indicated by the Willis Committee and the Parliamentary debates. This is not surprising, since the Willis Committee drew on considerable research and extensive consultation, and experience in other jurisdictions with somewhat similar laws provided a useful indication of the likely experience in New South Wales. It may be that the extent of anxiety generated among adoptive parents, and among some adoptees, is somewhat greater than expected, and it is possible that the proportion of adoptees who are unaware of their adoptive status is higher than expected. Neither of these matters appears to be crucial in an assessment of the basic principles of the Act; it was always clear that the operation of the Act would be difficult in the case of adoptees who were unaware of their status, and also that there would be considerable opposition and anxiety from many adoptive parents, and some members of all the categories affected by the Act. A comparison between the expectations of Parliament and the actual functioning of the Act, therefore, provides no reason to re-examine the basic principles of the Act.

EXPERIENCE IN OTHER JURISDICTIONS

6.29 Another approach is to consider experience in other jurisdictions which have similar legislation, and ask whether that experience indicates any cause for concern with the basic approach of the New South Wales Act. Although there has been considerable writing about the issues, there is relatively limited research of a kind that might indicate the impact of these laws on the people involved. The most relevant studies are briefly surveyed in this section.

Scotland

6.30 In Scotland, the original birth information of an adopted person is available to that person after attaining the age of 17. The Houghton Committee, which in the early 1970s undertook a comprehensive review of adoption legislation in England, commissioned John Triseliotis to carry out research of the experiences of adopted people exercising their rights under the Scottish system. The results of this research are published in a well known book In Search of Origins.¹⁸ The author conducted interviews with a sample of 70 adopted persons (of 98 invited) who had exercised their rights to obtain their birth information. The main purpose of the research was to understand the experiences of the adopted people concerned. Only 11 had traced their birth parents or relatives at the time of the research. Triseliotis found that those adoptees who commenced searches for their original parents “were generally concerned not to do it in a way that might be hurtful or upsetting”.¹⁹

6.31 The experiences of the 11 who succeeded in tracing parents or relatives, were found to be mixed, but in all but two cases, the persons sought were willing to meet the searcher and establish some kind of relationship with them. The study does not include interviews with the persons contacted, but does indicate that the adoptees generally found the experience a positive one even though in many cases they were disappointed at what they found:

[t]hough most of the adoptees who had contact with a birth parent or a relative were disappointed that their ultimate expectations were not fulfilled, nevertheless they felt that finding out and testing reality was a great help to them: “I feel more at peace with myself”, said one of them and another: “I know where I stand” and a third, “I seem to have matured through this process”.²⁰

England

6.33 Influenced by the 1973 Triseliotis study, s26 of the Children Act 1975 (UK) provided for access by adult adopted persons in England to their original birth records. Applicants were required to have a meeting with a counsellor when they were obtaining the information. There have been a number of studies of the experience under this legislation. In particular, Day²² studied the first 500 interviews given at the Central Register Office in London. This study has the advantage of being based on what is probably a representative sample, as distinct from a group of people who respond to advertisements in the media. Day reported:

Of those who said that they did intend to try to trace, taking their enquiry as far as possible with a view to arranging a meeting with a natural parent or relative, the great majority accepted the desirability of using an intermediary. A number added the proviso that they would only seek to come face to face if this were also the wish of the other persons concerned ... In view of this, it would seem that ill-considered, unwise, or precipitate confrontations, if the figures are reliable, are not likely to occur on any great scale ... There is no reason to believe ... from what is known thus far, that natural parents are more likely to be disturbed on any significant scale, as a result of the implementation of section 26, than they were before.²³

6.34 Part of the research involved counsellors forming an opinion about whether an applicant gave cause for concern; only 15 applications (3.6% of 500) “gave real cause for concern”. The general conclusions expressed by the author include the following:

9. There was compassionate understanding of the situation of the nature mother, both at the time of parting with her child and as affected now by the retrospective legislation.

12. Hostility towards a natural parent was rarely expressed by applicants.

20. For the vast majority of applicants, probably above 90%, the acquisition of birth information did not appear likely to cause undue anxiety or distress either to adopters or the natural parent, where traceable...

21. Primary loyalty to the adoptive parents was a marked characteristic of many applicants. Adoptive parents were not usually aware that the applicant was making an enquiry. Applicants said that their action could be misunderstood.²⁴

6.35 Summarising the available studies in 1984, Triseliotis wrote:

Only a minority of adopted people seek access to their birth records under section 26 of the Children Act 1975. The calamities anticipated by sections of the media, politicians, and some organisations, have not materialised. The various studies carried out so far suggest that the vast majority of adoptees act thoughtfully and with great consideration for the feelings of both their birth and adoptive parents. The value of access facility is not now in dispute.²⁵

New Zealand

6.36 It is widely accepted that the most traumatic effects of adoption information legislation are likely to be felt by adoptees who do not know of their adoptive status. Twenty-two such adoptees (1%) were found as a result of the 2,200 applications made by birth mothers under the New Zealand legislation. Mary Iwanek has described the reaction of these 22 adoptees (ages from 20 to 55) who had not been told:

Social workers report that although it was a shock some of the 22 adoptees greeted the news with delight as it reinforced for them ideas that they had already suspected to be the truth. Others faced their adoptive parents with anger for not having been told. However in nearly all the situations the adopted people were able to get through their initial anger and talk with their adoptive parents. The reasons for the child not having been told was [sic] that they feared they would want to make contact and lose them to the birth parents. In only one case that is reported was the adopted person cut off from the adoptive family as a result of the situation.²⁶

Victoria

The Tabak Study

6.37 A research study has been undertaken recently of ‘self search’ processes used by adult adoptees who received origins information in Victoria.²⁷ The researchers interviewed 100 adoptees, chosen at random from among those who had participated in the mandatory interviews for information recipients between 1 April 1989 and 30 September 1989. The response rate was unusually high: at 80%.²⁸ The interviews were conducted between three and eight months after the mandatory interviews, and thus provide information only about the early experiences of searching and contact. The ages of the adoptees ranged widely: 23 were between 18-25, 52 between 26-40, and 25 were 41 or over. Seventy-four were female, twenty-six were male. The main findings of the research relevant to the present review are noted below.

Family life

6.38 Most respondents perceived themselves to have had a normal family life, and “many were full of praise for their adoptive parents”. Seventy-eight felt that they had been “completely accepted” and ten that they had been “considerably accepted” by their adoptive parents. None had completely lost touch with their adoptive families. The author comments that this finding “tends to discredit the notion that adopted people who search have unhappy childhoods”.²⁹ Twenty-one percent of the female respondents reported very poor relationships with their adoptive mothers. Eleven respondents reported being victims of mental cruelty or physical abuse; three were removed from their families because of child abuse.

Knowledge of adoption

6.39 Most respondents had “always known” they were adopted, though many had learned later, 23 respondents when they were aged between 11 and 20, and 17 when they were aged over 20. In 49 families, adoption was “never discussed”, and discussion was “very limited” in another 12 families. Several had not told their parents they knew they were adopted.

Many respondents reported that considerable deceit had occurred about their status. There was bitterness about this. Two people found their spouse knew about their adoptive status but they themselves did not. Some parents apparently denied the respondent was adopted, even on repeated request.³⁰

6.40 Some respondents previously had been given false information that proved unnecessarily distressing:

This could have serious consequences for the adopted person. Females who had been told their birth mother died in childbirth sometimes suffered during their own pregnancies. Respondents who were not told they were adopted sometimes dreaded passing on conditions present in their adoptive family. One male respondent had feared an early death from hereditary disease of the adoptive parents. ³¹

Intentions and motivations

6.41 Twenty intended only to obtain their birth certificate and records; 54 intended to search and 24 had not yet decided whether to search. Sixty-three respondents wanted to find the birth mother first; 10 wanted to find both parents. By the time of the interview, however, the focus had widened: by then 41 wanted to meet their birth fathers. Motivations were reported as follows:

Find medical information32	50
Knowledge of family background33	46
Reason relinquished for adoption34	46
Establishing an identity35	32
Understand oneself better	31
Find and reassure birth mother	21

Contact and reunions

6.42 Sixty-two respondents had attempted to contact birth relatives at the time of the interview. Thirty-nine had used the telephone, 20 a letter, and two went to the door of the birth relative. Fifty-eight succeeded in making contact.

6.43 Of the 58 relatives contacted, 40 agreed to a meeting and a further 13 agreed to exchange information. Some of the others were considering their response: only five refused all contact. Summarising the result of this study and research on searches through agencies, the author writes:

In the agency program, if only those actually contacted are included for analysis, then 84% of those contacted agreed to contact with registrants. Seventy-nine per cent of those contacted by research respondents agreed to contact. However 6.4% (N = 4) of respondents who contacted a birth relative were still awaiting a decision.³⁶

6.44 The respondents also described the birth relatives’ initial responses. Twenty-six reported that it was “instantly overjoyed and welcoming”. Twenty “found their birth relative was pleased, but perhaps with some reservations about privacy”. Three found the immediate response was “cautious”, five that it was “frightened, confused or withdrawing”, and five received a “hostile, cold or denying type of response”. The author adds that there were no reports of marriages being disturbed, or relationships with other children of the birth parent being damaged; and that there were “a couple of birth mothers in their eighties who had not told their children about the respondent, but managed arrangements for reunions without appearing distressed”. There was a high level of acceptance, both by the respondents of their birth relatives, and vice versa.³⁷ Ten respondents found that their birth mother had not told her husband and/or children about the existence of and/or contact by the respondent. Some of these birth mothers agreed to contact.

Other studies

6.45 Similar results to the Tabak study emerge from another Victorian study, a report of the results of research completed into the first two and a half years of operation of the Adoption Information Service conducted by Berry Street Child and Family Care, a major voluntary multi-program agency in inner-urban Melbourne.³⁸ The study analyses 340 registered enquiries from the period between July 1985 to 30 January 1988. Of the completed cases, contact with a biological relative occurred in 52 instances (30.2%). Only in eight cases (4.6%) was contact refused.

6.46 The conclusions from that study that are relevant in the present context are as follows:

1. The vast majority of adoptees and adults fostered as children who enquire do so out of curiosity and a “need to know” their origins. Although some have had less than ideal adoptive or foster experiences, very few search in order to “re-create” a family experience.
2. Birth parents - whatever might have been expected of them at the time of relinquishment - do not “forget”, but rather most go on wondering and worrying about their child for the rest of their lives. For almost all, the contact with their child brings immense relief. A significant number of birth mothers have no further children after relinquishing. Many of these commented upon being emotionally or psychologically unable to go through the experience (of birth again) because of the continuing distress of the loss of their child...
3. Very few adoptees or birth parents refuse the opportunity of direct contact with each other. The view that many birth parents would not want contact with their relinquished child is not borne out by practice.
4. A refusal (of contact), is most likely where an outreach is made to adoptive parents of an under-age adoptee. As a group, adoptive parents seem to be least comfortable with the notion of contact between adoptees and birth family. Whilst it is often supposed that this is due to a fear of loss of relationship with the child, again experience does not support this as a likely outcome from adoptee-birth parent contact. In fact, many adoptees advise that they felt closer to adoptive parents after contact with birth parents occurred.³⁹

6.47 A similar picture also emerges from a study by Picton submitted to the Victorian Government in May 1980, before the law gave access to information about adoption. The researchers interviewed 86 people enlisted through co-operation with Jigsaw, a self-help adoption association. It was therefore not a random sample.⁴⁰ Twenty-two of the respondents had found their natural mothers and two of these had also found their natural fathers. The experiences of these 22 were reported to be as follows:

Thirteen had met with the natural parent more than once and sometimes regular meetings were taking place; seven had had only one contact at the time of the interview; one had still to arrange a meeting; one had not had contact, and one postal respondent did not answer the question.⁴¹

The overwhelming impression is of a group of adults who have a need to know facts about themselves that others not adopted, take for granted. Moreover this need to know does not contain overtones that could be construed as either disturbed or punitive.

The general level of concern and compassion for adoptive parents and relinquishing parents was high and lacked any apparent motivation to confront angrily or to condemn. Although both researchers interviewed adoptees who were manifestly distressed by their situation, neither registered the belief that negative outcomes would result from any contact with relinquishing parents. This accords with the low level of concern registered by the counsellors in the recently published General Register Office Survey in Britain. [the Day study referred to above]

A strong indication of the level of concern about the circumstances about the relinquishing original parent(s) is the manner in which the adoptees sought to make contact. Eighteen out of twenty-four made use of an intermediary and then only after careful consideration of possible repercussions. All of the four who had made direct contact without an intermediary said that they felt in retrospect that it had been a mistake in spite of generally positive outcomes. On the other side, relinquishing parents who had been contacted, appreciated the use of an intermediary although one had serious criticisms about the way the intermediary made contact.⁴²

6.49 Picton concludes, referring to research in Britain and the United States:

...[t]hat providing access to information as a right (and the attendant likelihood that information will be used in some cases to contact relinquishing parents), does not produce a significant level of distress or disruption. Presumably this must be due in some measure to the fact that most adoptees who seek, do so responsibly, and on the other side, most parents who are “found” are willing to let the contact take place...⁴³

United States

6.50 In a well known study⁴⁴ Sorosky, Baran and Pannor interviewed participants of 50 reunions selected at random from among the people who had responded to advertisements. The focus was on 50 adoptees whose searches had resulted in reunions. The study found that 90% of the adoptees were “satisfied” with the outcome of the reunion, “most of them reporting a sense of personal fulfilment, resolution of genealogical concerns, and diminished identity conflicts”.⁴⁵

6.51 It was also found that 82% of the encountered birth parents were “positive and accepting”, and

...only 10% reacted adversely to the reunion with their relinquished child. In contrast, many of the adoptive parents had difficulty in adjusting initially to the experience. 36% of the adoptive parents were co-operative and understanding, 20% were mildly upset, and 10% were quite hurt. In the other cases the adoptive parents had either died or were not told about the reunion in order to spare their feelings.⁴⁶

What stands out most when we review the data, however, are the positive benefits the majority of the adoptees gain from the successful search. Few regretted the experience, and many were enriched by new meaningful relationships with their genealogical forebears. Significantly, most reported a deeper sense of love and appreciation for their adoptive parents, whom they viewed as their true “psychological parents”. Although some of the adoptive parents were initially upset and hurt by the reunion, permanent damage to the adoptive family relationship resulted rarely. For the majority of the birth parents, the experience provided an opportunity to resolve old guilt feelings and to erase years of questioning about the fate of their relinquished child.⁴⁷

6.53 Another study in the United States attempted to assess reunions between adoptees and birth parents from the point of view of the birth parents.⁴⁸ The sample was drawn from birth parents who responded to advertising or were affiliated with adoptee or birth-parent organisations. The study examined reunions between 170 birth parents and their children. Reunions were initiated by the birth parents in 79% of the cases and by the adoptees in 21%. The reactions of both the seekers and the contacted birth parents were very positive about the initial contact and became more positive over time. Even in the cases where the reunions were not a “success”, the birth mothers involved considered that it had a very positive impact on their lives. The authors summarised their findings as follows:

Contrary to expectation, reunions do not seem to disrupt the lives of the participants. Even birth mothers who did not search and who still would not do so, were pleased to be found. At least from the point of view of the birth parents, the reunion, even if unsuccessful, seems to enhance their lives.⁴⁹

6.54 The same authors carried out a similar study on the experience of adoptees.⁵⁰ The study was based on response to a mail questionnaire from 133 adoptees. Of these, 114 had had reunions. The majority had actively searched for their birth parents but 13 (11.4%) were found as a result of the birth parent’s initiative. The reaction of the birth parents to being found by the adopted person was described as follows:

Many adoption professionals are concerned that a found adoptee or birth parent may feel intruded on. The experience of this sample does not support this concern.

Seventy-five percent (n=75) of birth parents were warm and welcoming at the initial contact; 22 percent (n=22) initially were fearful, reserved, or unsure and only 3 percent (n=3) were described by the adoptee as indifferent, hostile, or rejecting. A similar pattern was found in the responses of the adoptees when they were found.⁵¹

Conclusions from experience in other jurisdictions

6.55 The studies noted above from the experience in other jurisdictions provide some useful evidence to the Commission, although they do have some important limitations. In particular, some are based on samples that may well not be representative, since they have been recruited from advertising and contact with organisations: it is possible that the people who respond may have had different experiences, or different attitudes towards them, than other adoptees or birth parents. This problem does not arise, at least in an acute form, in the case of studies based on samples which are more random, notably those by Day (England), Triseliotis (Scotland), Iwanek (New Zealand), Tabak (Victoria) and Swain (Victoria).

6.56 It is striking, however, that the general conclusions of all these studies, using different methods and undertaken in different countries, are very similar. Searchers emerge as mainly careful and sensitive to the other person’s interests, and the effects of the contact, even in the most worrying cases where the adoptees did not know of their adoptive status, appear to have been very positive for the searchers and positive for the majority of persons found.

6.57 It is important that such research be undertaken in the future on the experience of access to adoption information in New South Wales. No doubt further research will add to our knowledge. However, this review of the available research provides a clear answer to the question posed for the purposes of the Commission’s inquiry, namely whether what is known about the experience of similar laws in other jurisdictions provides reasons for concern about the New South Wales Act. The answer is that it does not. On the contrary, the results of the available research, while not conclusive, are extremely reassuring, suggesting that while the effects of the Act are negative in some cases, they are positive in the great majority of cases. Although the question should be kept under review in the light of further research, particularly that relevant to the New South Wales legislation, the existing research on the experience of other jurisdictions strongly supports the basic principles of the Adoption Information Act 1990.

ARGUMENTS ADDRESSED TO THE COMMISSION

6.58 The third step in this assessment of the basic principles of the legislation is to consider whether any views or arguments addressed to the Commission require fundamental reconsideration of those basic principles. In the Commission’s view they do not, since in general the arguments were thoroughly considered and dealt with by the Willis Committee.

6.59 The many submissions and comments received by the Commission were of great value in conveying the experiences and reactions of those involved, and they have been extensively used in the preparation of Chapter 5 of this Report. In this section we consider the views and arguments put to us relating to the main principles of the Act, stated at the beginning of this Chapter. Specific matters are dealt with in Chapter 8.

Submissions from organisations

6.60 It was a striking fact that the majority of organisations, especially those having long-standing professional involvement with adoption, strongly supported the legislation. The organisations supporting the legislation included:

Post Adoption Resource Centre (PARC)

Advisory Committee of PARC

NSW Committee on Adoption ⁵³

NSW Privacy Committee⁵⁴

NSW Law Society

Barbado’s Australia

Centacare Adoption Services

Anglican Adoption Agency

Association of Childrens Welfare Agencies

The Hunter Region Adoption Committee

Mercy Life Family Centre

The Salvation Army Social Services Department

Obstetric Social Workers Group

Link-Up⁵⁵

Adoption Triangle⁵⁶

Mothers for Contact in Adoption

Association of Relinquishing Mothers

Shoalhaven Adoption Support Group

Sutherland Shire Family Support Service

Women’s Co-ordination Unit

Ethnic Affairs Commission

6.61 The basic principles of the legislation were opposed, in whole or in part, by four organisations, namely:

Adoption Privacy Protection Group (APPG)

People Concerned for Adoption (Lismore Branch)

Central Coast Friends of Adoption

Adoptive Parents Association (APA)

6.62 It is useful to distinguish between organisations that have a long standing involvement in the administration of adoption and in counselling those affected, and on the other hand organisations formed more recently to lobby for or against the legislation, such as Mothers for Contact, and the APPG. With the exception of the APA, all of the former groups supported the legislation, and thus it is clear that the views of those professionally involved in adoption are overwhelmingly in favour of the legislation. It is not surprising that these bodies supported the general policy of granting access to origins information as of right, for this has been the strong view of expert opinion in adoption for many years, but it is notable that these organisations should have consistently approved the basic principles of the NSW Act, including the right of birth parents to information, and the contact veto system.

Arguments in support of the Act

6.63 It is not necessary to deal at length here with arguments in support of the legislation, for they have been presented in detail in the Report of the Willis Committee and in the Parliamentary debates. It will be sufficient to provide a brief summary and some examples.

6.64 Those who supported the legislation stressed the following matters:

• That adopted persons should have unconditional rights of access to their original birth certificate and information about their origins: to deny them this was a violation of their human rights, and a form of discrimination against them, since other citizens were entitled as of right to their own birth certificates.
• That the circumstances in which many birth parents signed consents to adoption, and the needs of birth parents that have emerged from research in recent years, make it appropriate to provide them with identifying and non-identifying information about the subsequent history of their biological children, and where possible, the opportunity to meet them.
• That the contact veto system, while perhaps not a complete guarantee against unwanted contact, constitutes a reasonable compromise between the granting of information rights and protection of privacy.

6.65 More generally, the submissions in favour of the legislation frequently argued that the secrecy associated with adoption was now known to have imposed serious and long-lasting stresses on many of the parties to adoption, and that changes in social attitudes towards birth outside marriage, and towards infertility, had removed or lessened the need for such secrecy. Another related theme was that the maintenance of closed records was inconsistent with the prevailing views relating to privacy and freedom of information, which called for personal information held in official records to be accurate and available to those whom it concerned.

Arguments against the Act

6.66 The arguments against the Act were essentially the same as those addressed to the Willis Committee and discussed in the Parliament. In summary, they were that the Act involves unacceptable violation of the privacy of people involved in adoption, since it departs from guarantees of secrecy which were given at the time of adoption, and since the contact veto system is an inadequate protection.

6.67 To the extent that these arguments are based on factual assertions, they should be assessed in the light of the evidence from the experience of the Act in New South Wales discussed in Chapter 5 and the research on experiences in other jurisdictions, discussed above. It will be recalled that while there is a great deal of anxiety on the part of many adoptive parents, and some adopted persons and birth parents, the majority of searchers are very concerned to act sensitively and respect the wishes and interests of the other parties; very few will break a veto, or indeed act in violation of expressed wishes of the other party.

6.68 The Commission’s approach is to re-examine basic principles only to the extent that it is appropriate to do so in the light of the results of the review. Since the main arguments are not essentially new, and since the operation of the Act is generally in accordance with Parliament’s expectations, it is not necessary to deal with these arguments in detail. However it may be helpful to discuss some aspects of the arguments addressed to the Commission.

Absolute principles or balancing of interests?

6.69 In the Commission’s view, the Act represents the result of a considered balancing of interests of those affected by the Act, and in particular, the interests of some people in information and of others in privacy. Some of the objections to the Act stated or implied that this was the wrong approach, and that there was some factor or factors which led, in an absolute way, to the conclusion that the Act was misguided. Avoiding retrospective effect was one such factor: some submissions suggested that the retrospective character of the Act was inherently objectionable. Some submissions claimed that privacy was entitled to apparently absolute protection, as a basic human right. For example:

The Act represents a serious interference with longstanding vested rights of confidentiality and privacy on the basis of which relinquishing parents based their decisions and adoptive parents made adoptions....⁵⁷

I’m sure you understand that the issue of privacy for all those involved in adoptions is of paramount importance. Presently our rights are not adequately protected. We sincerely hope that you can appreciate the need to ensure that the PRIVACY OF ALL is guaranteed.⁵⁸

6.70 In the Commission’s view there is no single absolute principle that points the way to the ‘correct’ result. The fact that retrospective legislation can operate harshly on people who have arranged aspects of their lives in reliance on previous law is an important matter to be considered, but it can be outweighed by other factors. Again, the fact that privacy might be regarded as a human right does not mean that it must necessarily prevail over other human rights. For example, the contact veto system in the present Act may be defended, even though it violates a well established human right, namely the right (of the person seeking contact) to freedom of association. Informed discussions of human rights issues, both in general and in connection with adoption information law, show the need for a careful weighing up of the various and often inconsistent interests and policies involved.

Retrospectivity

6.71 A number of submissions objected to the Act because of its retrospective operation. Of course the mere fact that an Act changes the previous law, or alters rights and duties that existed under the previous law, does not make it objectionable. For example, the Adoption Information Act 1990 creates a new right in adoptive parents to have access to extensive non-identifying information about birth parents. None of those who argued against retrospective legislation appeared to object to this retrospective change in the law. The argument against retrospectivity is more specific than this, namely that the change in the law represents a departure from clear understandings that existed at the time of adoption, understandings that were clearly given by the law and by practice, both to the relinquishing parents and to the adopting parents. These understandings, the argument continues, should be regarded as a contract between the state and the parties to the adoption.

6.72 There are however difficulties with this position. First and most obviously, the adopted child was not a consenting party, and should not be regarded as bound by the arrangements made at the time of the adoption. Second, as explained in Chapter 5, it is artificial to regard all relinquishing parents as fully consenting parties to a ‘contract’.⁵⁹ Many of the mothers were under the age at which the law would normally treat them as old enough to make decisions that would be given legal effect. They normally gave their consent at a time of great vulnerability and emotional turmoil, many would have been, as one birth mother told us “overwhelmed by events”. In some cases, they were misled as to the documents they were signing, or subjected to improper pressure, or given false information about their rights to revoke consent. Although the Supreme Court had power to set aside consents on such grounds, in practice the proceedings were almost invariably unopposed and the Court normally heard only from the applicant for the adoption order. Evidence was not normally given by the birth mother. In these circumstances, the Court would not have been aware of the pressures she was under, or their effects upon her decision. Of course, there were no doubt some consents that were given without such pressures. But the evidence of the practices of taking consents, and the evidence of the birth mothers, makes it clear that it would be wrong to proceed on the assumption that all or most adoption consents were informed and given freely and with full knowledge of the relevant facts.

6.73 The position of the birth father is also important in this context. Where the child was born outside marriage, his consent was not required. In theory he was entitled to apply to the Court for leave to contest the adoption application, but such applications would have been very unlikely to succeed, and appear to have been uncommon. In practice, the father’s name would not be on the birth certificate unless he signed the application to the Registry of Birth, Deaths and Marriages, and he was not encouraged to be involved in the decisions relating to the child. In some cases, he was not aware that the child had been born. Here too, it would be wrong to proceed on the basis that birth fathers were consenting parties to a contract or arrangement which guaranteed privacy.

6.74 Finally, the law and practice of adoption varied over time in relation to privacy. It does seem that the majority of people who surrendered new born babies for adoption by unrelated adoptive parents, and those who adopted them, did so in a climate where they reasonably assumed that adoption would mark the end of all connection between the child and the birth family, and that neither would later be able to obtain identifying information about the other. However as noted in Chapter 2, prior to 1967 protection was based on matters of practice rather than law, and was by no means complete. We cannot be sure exactly what was said to adoptive parents and birth mothers, especially in adoptions that were privately arranged. Neither can we be sure that each of the parties to any adoption had similar understandings of the degree of confidentiality. Further, the parties’ understanding of privacy may well have been different in certain types of adoption, notably adoptions by step-parents and relatives, and adoptions by established foster-parents, who may have been in continuing contact with the birth family. These factors somewhat complicate the claim that adoptions involved a complete guarantee of privacy.

6.75 For these reasons, it is wrong to regard the argument against retrospectivity as decisive. But it does draw attention to an important consideration. The Adoption Information Act 1990 involved a dramatic change in the post-adoption relationships between the various people affected by adoption. For some of the participants, the change is very threatening. It involves a state of affairs for which they may not be prepared, and for which they may not have planned. Some adoptive parents have told the Commission that if they had known that the law would change in this way they would never have adopted. Some birth parents, too, have objected to the retrospective operation of the Act, although few have said that they would not have relinquished the child if they had known that the law would change in this way: as we have seen, the majority of birth mothers seem to have felt that they had little choice but to surrender their child for adoption.

6.76 There can be no doubt that adoptive parents who have not told their children of the adoptive status find themselves in a most unenviable position. For some of them, the Act must seem a great injustice. We have heard from some older adoptive parents who say that when they adopted they were advised not to tell the child of the adoption, and they have faithfully followed this advice. They now feel that it is quite unfair for the law to make it possible for the birth parents to receive identifying information, and be placed in a position to expose the adopted person to the multiple shocks of (i) discovering the fact of their adoption, (ii) unexpectedly meeting the birth parent or relative, and (iii) coming to terms with the fact that their adoptive parents have withheld the truth from them for so long.

6.77 Although one must sympathise with the position of such people, some other considerations should be taken into account. First, the operation of the Act was deferred for six months in order to give them time to disclose the adoption, and there was considerable publicity about the rights to information it created. Second, their decision to maintain the secret is a continuing decision over time, not a single act done many years ago. Even though ‘not telling’ may have been recommended when they adopted their children long ago, since at least the mid-1960s it has been regarded as good adoption practice to tell adoptees of their adoptive status. Further, the ‘search for origins’ movement has been in existence since at least the mid-1970s.

6.78 These changes have been much discussed in newspapers and magazines, and electronic media, over the years. In addition, the media, cinema and literature have often featured stories about adopted people who as adults discover by chance that they have been adopted. There are now publications on ‘late telling’, and counselling is available from a number of sources. It is difficult to imagine that adoptive parents who have not ‘told’ have been so isolated from the community that they would not have been exposed to these ideas and events. While their position deserves consideration and respect, the law should not necessarily override all other considerations to preserve their right to adhere to the practices and beliefs of previous decades. In this context, the 1990 Act, and the experiences of people who have discovered their adoptive status, or been ‘found’ before the Act took effect, may be seen as changes in society over time that require adjustments. For some people adjusting to social change can be very difficult and painful. Those people can reasonably expect that their situation be given careful attention, and that as far as possible they be protected from unnecessary distress. But they cannot reasonably expect that their unwillingness or inability to adapt to change to be taken as a sufficient reason to prevent the introduction of new laws that are seen as desirable in the present state of knowledge, and the present nature of the community. Accordingly, the Commission has recommended some measures designed to provide additional protection for them without undermining the basic principles of the Act.

Protection of privacy

6.79 There was considerable criticism of the Act on the ground that it constituted an invasion of people’s privacy, which many saw as a basic human right. All of the following examples were regarded by at least some of those who made submissions as invasions of privacy:

1. The Registry of Births, Deaths and Marriages discloses to a birth parent the information contained in the amended birth certificate relating to the adoptive parents without their prior consent.
2. An adoption agency discloses to a birth parent information on the file of the adoption agency relating to the adoptive parents, including information about such matters as infertility and income.
3. The Registry of Births, Deaths and Marriages supplies an original birth certificate to an adopted person without having obtained the prior consent of the birth mother.
4. The Registry of Births, Deaths and Marriages supplies an amended birth certificate of an adopted person to a birth parent, without the prior consent of the adopted person or the adoptive parents.
5. A birth parent drives past or parks near the home of the adoptive parents, hoping to see the adopted person.
6. Staff of the Family Information Service tell a person who lodged a veto that there is a message waiting for him or her.
7. Staff of the Family Information Service ask a person who had lodged a veto whether he or she wishes to withdraw it.
8. A birth uncle reveals the fact of her adoptive status to an adopted person who had not yet been ‘told’, and had not yet discovered, that she was adopted.
9. A birth relative asks for financial assistance from an adopted person with whom he or she has had a recent reunion.
10. A birth parent or relative writes a letter to, or telephones, adoptive parents or an adopted person, without their prior consent.

6.80 It was apparent from comments made to the Commission that there were differences of opinion about whether some or all of the incidents listed above constituted invasions of privacy. Some people at a public hearing treated number 6 as a clear and gross invasion of privacy, while others could see no possible objection to it. There is a need for some clarification about what is meant by privacy, and what sort of protection it deserves.

6.81 The general literature on privacy provides assistance in assessing the relationship between privacy and the Adoption Information Act 1990. Privacy is generally considered by commentators⁶⁰ to involve the following types of interests:

Territorial privacy: the interest in controlling entry to the ‘personal place’;

Privacy of the person: the interest in freedom from interference with one’s person and ‘personal space’;

Information privacy: the interest of the person in controlling the information held by others about him or her; and

Communications and surveillance privacy: the interest in freedom from surveillance and from interception of one’s communications.

6.82 The numbered illustrations given above show that adoption information law involves more than one type of claim to privacy. Numbers 1-4, for example, raise questions about information privacy, while five involves territorial privacy. Privacy interests are protected, in a greater or lesser degree, by law. Thus the law of defamation prohibits some types of invasions of information privacy. Laws relating to assault and other offences protect privacy of the person interests. Laws prohibiting unauthorised phone-tapping, protect communications privacy. The literature also stresses that while privacy is a right the law should respect, it is not an absolute right: it must be balanced against other rights, and the extent to which it should be protected in particular situations requires a process of weighing up competing considerations.⁶¹

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.⁶² 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.⁶³

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.

Privacy as a claim to maintain the fiction of the biological family

6.85 In its widest form, the claim to privacy seemed to involve the assertion that the law should prevent any person in any way raising questions relating to adoption with a person who had lodged a veto, or (on another view) any person who had not indicated a willingness to deal with the matter. In this form, the claim appeared to be closely associated with the argument against retrospectivity: where a person had adopted on the basis that adoption would mark a complete break with the birth family, any action that required one of the parties to acknowledge or address any issue arising from the adoption could be seen as an invasion of privacy. Put another way, it is a claim that the law should protect the right of those involved, if they choose, to maintain the fiction that the child was not adopted but was the natural child of the adoptive parents. For the adopted person and the adoptive parents, the fiction is that the adopted person is the natural child of the adoptive parents, thus related by consanguinity and affinity to the adoptive parent’s relations. For the birth parents, the fiction is that they never gave birth to the child. For the birth relatives, the fiction is that they have no biological relationship with the adopted person.

6.86 This ‘biological family fiction’ is closely associated with the law and practice of adoption in former times. To the extent that adoption practice encouraged all parties to behave as if there was no difference between adoptive families and other families, it encouraged those involved to treat the fiction as fact. There is, therefore, a close link between the wide view of privacy and the argument against retrospectivity. Those who have treated the fiction as fact for many years and have behaved in accordance with the law and practice at the time of the adoption, claim, in effect, a legal right to maintain the fiction indefinitely. For them, if the law fails to prevent any action that undermines this fiction, it thereby facilitates an invasion of the privacy of the person or persons wishing to perpetuate it. Examples 7 and 8, above, would be seen on this view as violating privacy. We have previously said that the argument against retrospectivity deserves careful consideration. But it cannot be elevated to an absolute claim, overriding other considerations, by describing it as a ‘right to privacy’.

Privacy implications of access to adoption information

6.87 Some of the feared invasions of privacy do not arise directly from the Act or its administration, but may be indirectly associated with it, in that the Act provides information which may be used by a person ‘who invades another’s privacy’. If a member of a birth family were to harass adoptive parents whose identity was revealed as a result of obtaining information under the Act, it might be said that the invasion of privacy would not have happened but for the Act. Certainly the Act greatly facilitates the obtaining of such information, although even before the Act it was not uncommon for people to discover identifying information about parties to the adoption.

6.88 Submissions made to the Commission differed on the appropriate response of the law to this situation. Some submissions treated the possibility of invasions of privacy as a reason for repealing or amending the Act, either to prevent access to the information or to erect special provisions against invasions of privacy. Others strenuously objected to this approach, arguing that such a response presumes, without qualification, that parties to adoption seeking information are more likely than other people to invade other people’s privacy. The Commission’s view is that on the face of it, the ordinary law should apply to possible invasions of privacy that might be committed by people who have obtained information under the Act. There are general laws that forbid harassment, and they apply to parties to adoption as well as to other people. Harassment may be based on many kinds of information or misinformation; it may be committed by creditors, former lovers, commercial competitors, and so on. The law does not deal with such problems by restricting information, or by treating people as needing special protection against people in these categories. Instead, it provides criminal sanctions and civil remedies against such forms of harassment.

6.89 No reason has been given to the Commission, nor is any such reason apparent, for treating in a different way any invasion of privacy which involves the use of information obtained under the Act. People subjected to harassment or other invasions of privacy should have the same protection as other people subjected to similar behaviour, regardless of the source of the information used by the wrongdoer. In fact, there are detailed provisions in New South Wales law protecting people against harassment and apprehended violence.⁶⁴ It has been said of these provisions:

Harassment or molestation are interpreted broadly and cover a wide variety of annoying, intimidating, troublesome or vexing conduct. The inclusion of these words allows the court to control conduct beyond the reach of either the criminal law or the law of torts ... Examples of such conduct are constantly telephoning, waiting outside the home or place of work, suddenly appearing at a window or repeatedly following in a car.⁶⁵

6.90 Some submissions complained of perceived invasions arising from the administration of the Act, while others complained of matters which, if they occurred, would have involved improper administration of the Act. Some adoptive parents, for example, expressed concern that members of the birth family might obtain documentation relating to their infertility, or income. The provision of such information would indeed appear to be a clear breach of privacy, but of course neither the Act nor the Regulation provide for the release of such information. A person who obtained such information in the course of administering the Act and provided it to an enquirer would commit an offence under the Act.⁶⁶

6.91 Other submissions appeared to treat the proper administration of the Act as involving unacceptable invasions of privacy. Of course, the fact that these actions are authorised by the Act means that they would not be illegal under existing law. The question is one of policy, namely whether aspects of the law should be changed because they involve a breach of privacy that is unacceptable. The type of privacy interest involved here is primarily information privacy, although it may also involve communications privacy (to the extent that the system provides for private correspondence to be censored).⁶⁷ As indicated above, there are no applicable privacy principles that can readily be applied to the peculiar circumstances faced by adoption information law. It is obviously true that the operation of the Act can mean that some people will find it more difficult than previously to prevent certain others from obtaining information about their names, whereabouts and circumstances. However it is arguable that this is a necessary consequence of redressing injustices that have arisen through earlier practices of secret adoption. Stating that the Act involves breaches of privacy in this sense only leads back to the familiar debate about the interests and rights of the people involved in adoption and adoption information.

Likely effectiveness of an information veto

6.92 As noted earlier, many of those who argued against the basic principles of the Act suggested that it would be an improvement if the Act provided for an information veto rather than a contact veto: that is, a system whereby a person involved and thereby identifed could prevent the issue of a birth certificate and the release of identifying information. This proposal, of course, was carefully considered by the Willis Committee. It is important to note that there were two separate arguments for rejecting it. One was that it was wrong in principle, because “it is in total conflict with the principle that all adoptees should have a right to be entitled to access to their original birth certificate and all birth parents ought to be entitled to identifying information about the child that they relinquished when he or she attains adulthood”.⁶⁸ The other reason was that an information veto might not be fully effective. This point, which was largely overlooked in submissions to the Commission, is of some importance.

6.93 The evidence to the Commission strongly suggested that one of the reasons why people seeking to make contact were so ready to respect the wishes of the other parties was that they felt that the balance drawn by the present Act was fair, and that to some extent their concerns had been met by the release of the birth certificate and prescribed information. If the law were to be changed to provide for an information veto, there is a risk that some searchers, feeling unjustly treated, would be less inclined to adhere to the law, and might, as many did prior to the Act, conduct their own investigations to discover the identity of the persons in question. Those investigations could prove more disruptive than the orderly transmission of information provided for in the present Act. The Willis Committee had drawn attention to these problems:

The most extensive evidence relating to [an information veto system] comes from New Zealand where the register has been in operation since March 1986. The Sub-Committee which visited New Zealand was informed that the difficulties experienced included the following:

(a) Some people refuse to accept the validity of the veto and continue to search using the traditional methods of clever detective work.

(b) In some cases the existence of [an information veto] defeats the purpose for which it is set up. There are numerous examples in New Zealand of determined adoptees who, when faced with a veto imposed by a birth parent, turn their efforts to finding other birth relatives, who may in fact be the very people whom the veto was intended to protect .... .⁶⁹

THE COMMISSION’S CONCLUSION

6.94 The Act has functioned very much in the way anticipated by the Willis Committee and by the Parliament. The experience of other jurisdictions with similar legislation, like the New South Wales experience examined in Chapters 4 and 5, suggests that such legislation works satisfactorily. The legislation is overwhelmingly supported by agencies and individuals with long-standing expertise in adoption. The arguments and submissions received by the Commission provide valuable information about the operation of the Act and have greatly assisted the Commission in understanding the range of issues and views involved. However the arguments against the Act are substantially the same as those considered and rejected by the Willis Committee and by Parliament, and they do not indicate that the approach of the Willis Committee or the Parliament was misguided or mistaken.

6.95 The Commission’s conclusion is, therefore, that its inquiries and research have revealed no reason to change the basic principles of the Act, after a little more than a year’s operation. However the evident anxieties of some people affected by the Act, and the undoubted distress it can cause to some individuals, make it appropriate to recommend as the Commission does in Chapter 7 further provisions for the protection of privacy, which do not significantly erode the basic principles of the Act.

1. Adoption Information Act 1990, s3(a), (b).

2. s6.

3. s8.

4. s16-29.

5. s3(c).

6. s7; Adoption Information Regulation, cl6.

7. s3(e).

8. s3(f).

9. s3(d).

10. This issue is considered in Chapter 8.

11. The Hon D Grusovin, Hansard 10 October 1990.

12. Willis Report at xi.

13 Willis Report at xi

14. The Hon R Webster, Hansard 6 September 1990 at 6780.

15. The Hon D Grusovin, Hansard 6 September 1990 at 8116.

16. The Hon J Hannaford, Hansard 17 October 1990 at 8542.

17. Willis Report at i.

18. J Triseliotis In Search of Origins (Routledge & Kegan Paul, London, 1973).

19. Triseliotis (1973) at 131.

20. Triseliotis (1973) at 140.

21. eg M Iwanek “Access to Adult Adoption Information” Appendix to Willis Report at 20.

22. C Day “Access to Birth Records: General Register Office Study” (1979) 98 (9) Adoption and Fostering 17.

23. Day (1979) at 24-25.

24. Day (1979) at 27-28.

25. J Triseliotis “Obtaining Birth Certificates” in P Bean (ed) Adoption: Essays in Social Policy, Law, and Sociology (Tavistock Publications, London, 1984) at 51.

26. Iwanek at 39.

27. Susan Tabak Self Search: A Program for Adult Adopted Persons (Community Services, Victoria, 1990).

28. Of the remaining 20, most were away or could not be contacted: only four declined to participate.

29. Tabak at 10.

30. Tabak at 11.

31. Tabak at 13.

32. Female respondents often wanted to know about their birth mother’s pregnancy before they embarked on pregnancy.

33. The respondents “wanted the truth about their family background, to fill the void of information, or to find someone they resembled. The wish to find someone else like themselves was mentioned by many respondents”: Tabak at 15.

34. “For some respondents wanting to know why they were relinquished was very important. The feeling of having been thrown away and discarded can be associated with pain and anger, even if the adoptive experience has been a happy one”: Tabak at 15.

35. Described as “feeling a nobody” and “wanting to know who I was”: Tabak at 16.

36. Tabak at 33.

37. Tabak at 34.

38. Philip A Swain “Adoption Information Services: Myths and Realities” in P and S Swain (eds) To Search for Self; The Experience of Access to Adoption Information (Federation Press 1992) at 25.

39. Swain (1992) at 31-32.

40. C Picton “Adoptees in search of origins” (1982) 6 Adoption and Fostering at 49-52.

41. Picton (1982) at 51.

42. Picton (1982) at 52.

43. Picton (1982) at 52.

44. A Sorosky, A Baran and R Pannor The Adoption Triangle (Anchor Press, New York, 1978).

45. Sorosky, Baran and Pannor at 195.

46. Sorosky, Baran and Pannor at 195.

47. Sorosky, Baran and Pannor at 196.

48. P Silverman, L Campbell, C Patti and C Style “Reunions Between Adoptees and Birth Parents: The Birth Parents’ Experience” (1988) 33 Social Work at 523.

49. Silverman, Campbell, Patti and Style (1988) at 528.

50. L Campbell, P Silverman and P Patti “Reunions between Adoptees and Birth Parents: The Adoptees’ Experience” (1991) 36 Social Work at 329.

51. Campbell, Silverman and Patti (1991) at 333.

52. Campbell, Silverman and Patti (1991) at 334.

53. The NSW Committee on Adoption is the peak NSW organisation of non-government agencies, representing 20 agencies and organisations.

54. The NSW Privacy Committee did not make a submission to the Commission, but provided a copy of the submission it had made to the Willis Committee in 1989. In that submission it “supports the proposition that natural parents, blood relatives and adopted persons have access to birth and adoption records when the adopted child attains the age of eighteen years.” The Committee considered that the objecting party should not be able to prevent the release of identifying information, or forbid contact; instead, it suggested that there be a register of objections to contact, but that register would be “solely to inform the applicant of the objection and does not constitute a veto by either party”.

55. Link-Up is an Aboriginal organisation that works with Aboriginal adults who were separated from their original families and communities by the operation of the child welfare system and adoption.

56. Adoption Triangle has for many years assisted persons to search for their relatives separated by adoption.

57. APPG Submission at 4.

58. Central Coast Friends of Adoption Submission at 5.

59. Even if the contract analogy is accepted, reference should be made to principles and statutory provisions by which, especially in decisions about major issues in families, the law sometimes declines to hold parties to agreements. See eg Family Law Act 1975 (Cth) s87.

60. See Australia. Law Reform Commission Privacy (Report 22 1983) at 46.

61. ALRC Report 22 at 52-54.

62. New South Wales. Privacy Committee “Privacy and Data Protection in NSW: A Proposal for Legislation” (Submission to ICAC, No 63, June 1991) at 74.

63. The Privacy Committee apparently took the same view in its submission to the Willis Committee, for it did not there argue that such principles resolved the issues posed by adoption.

64. See especially Crimes Act 1900 (NSW) s562B. Injunctions might also be available under the provisions of the Family Law Act 1975 (Cth) s114 or the De Facto Relationships Act 1984 (NSW) s53.

65. N Seddon “Domestic Violence” in R Chisholm and J Housego Australian Family Law: State Legislation (Butterworths, loose-leaf) at 42, 124.

66. Adoption Information Act 1990 s15.

67. This aspect is discussed in Chapter 8.

68. Willis Report para 7.15.

69. Willis Report para 7.17.