LAW AND PRACTICE BEFORE 1991

2.1 The previous law relating to information about adoption generally reflected the notion that adoption marked a complete and permanent severance between the adoptee and the birth family, and that this complete severance would serve the needs of all parties involved. This view of adoption was reflected in a variety of rules and practices. The court was closed to the public when hearing adoption applications, and court records, and the records of adoption agencies, were not open to inspection except by staff or on the order of a court. Efforts were made to prevent birth parents from learning the names and whereabouts of the adoptive parents, and to prevent the adoptive parents from learning the identity of the birth parents. There was a general expectation, at least in adoptions where a new-born baby was placed with unrelated adopting parents, that members of the birth family and members of the adoptive family would never learn of each others’ identity, or meet.

2.2 This “clean break” model of adoption was based largely on practice rather than law until 1967, when the Adoption of Children Act 1965 came into force. Practice was not entirely consistent. Adoptive parents were given the Order of Adoption which included details of the birth parents, and the degree of secrecy probably varied according to the period, and according to the way adoptions were organised. In particular, there may have been limited secrecy in adoptions arranged privately and in some adoptions such as adoptions by step-parents or by former foster parents, the parties may well have been known to each other. Secrecy acquired legal support mainly as a result of the 1965 Act, which also prohibited private adoption arrangements, requiring all adoptions outside the extended family to be arranged by authorised adoption agencies, or by what is now the Department of Community Services. In practice even then, however, secrecy was not always achieved: there were cases in which identifying information was accidentally discovered by either birth, and, with the help of organisations such as Jigsaw or Adoption Triangle, adoptees would sometimes manage to trace their birth families and vice versa.

THE SOCIAL BACKGROUND

2.3 The secrecy surrounding adoption during this period was related to the social conditions and beliefs of the time. Most children surrendered for adoption were born outside marriage, and the births often resulted from unintended pregnancies, to which the young women were particularly vulnerable: sex education and contraceptive services were lacking or inadequate, and abortion often was unavailable or unacceptable. Stigma was associated with all those immediately associated with adoption: unmarried motherhood and illegitimate birth were widely seen as shameful, and infertility a source of embarrassment to adopting parents. Adoption was seen as a way of avoiding this stigma and serving the needs of all parties. The child would have the benefit of the status of legitimacy, and a good home with loving parents who very much wanted a child. The birth mother could avoid unmarried parenthood, achieve for the child what she expected would be a better home than she could provide, and make a new life for herself. The adopting parents would have a much-desired child of their own.

2.4 It was not uncommon for adoption arrangements to conceal the true facts and create the illusion that the child had been born to the adoptive parents. The birth mother would sometimes leave her usual community to have the baby in secret. The child could be “matched” in appearance with the adopting parents, and the adopting mother, in some cases, would simulate pregnancy to create the illusion that she was the biological mother. The children would not necessarily ever be told of their adoptive status. Not all cases, however, involved such thoroughgoing attempts to conceal the biological facts, and by at least the mid 1960s adoptive parents were being advised by adoption agencies to tell their children of their adoptive status. Even where the children were “told”, however, their adoptive status was often an awkward subject both in their family and in the general community, and it was widely assumed to be best for all concerned if all parties treated the adoptive family as no different from other families.

PRESSURES FOR CHANGE

2.5 By the 1980s the assumptions and values underlying this model of adoption had altered. The stigma associated with illegitimate birth and unmarried parenthood was fading: the supporting mother’s benefit was introduced in 1973, and in the mid-1970s legislation intended to remove legal discrimination against ex-nuptial children (as they were now to be called) was introduced throughout Australia. A greater degree of frankness about sexual matters probably also reduced the stigma associated with infertility. By the late 1970s, the number of healthy new-born babies surrendered for adoption had commenced what was to become a steep decline.

2.6 These developments reduced the need to maintain the pretence that adopted children were the biological children of the adoptive parents. Other developments contributed to a further erosion of the “clean break” approach by suggesting that the interests of some of the parties, and perhaps all, would be served by a greater acknowledgment of the biological parentage of adoptees. Autobiographical publications and research indicated that many adoptees, including those in happy adoptive homes, experienced strong desires to know their biological inheritance, and in some cases to make contact with their birth mothers or other members of their birth families. Research also revealed that for many birth mothers, adoption had never marked a “clean break” in an emotional sense. Many of them had consented to adoption only with great reluctance, in the face of circumstances which made it difficult or impossible for them to keep their children. It became apparent that for many birth mothers, losing their children to adoption was the cause of intense and continuing emotions, notably grief and often shame and guilt. Far from having made a fresh start, the unresolved emotions associated with the relinquishment had continued to trouble them. Many birth mothers had longed for, and some sought, information about what had happened to their children, and if possible contact with them. Similar feelings were experienced by some birth fathers, particularly, but not only, when they had married the birth mother.

2.7 The positive experiences in countries where post-adoption information was available, combined with strong pleas from adopted people, created a new interest in opening up access to original birth records. England did so in 1976. Access to original birth records seemed more consistent with emerging views of human rights, especially notions of non-discrimination, with a growing appreciation of the importance of medical information about inheritable diseases and other characteristics, and with a growing interest in genealogical research. The view that adult adoptees should have access as of right to their original birth records was discussed enthusiastically at the First Australian Conference on Adoption in 1976, and rapidly became the dominant view of professionals working in the area of adoption.

OPENNESS: DEVELOPMENTS AND DEBATES

2.8 These developments were reflected in adoption practice, which began to stress the importance of honesty and frankness, and increasingly provided adoptive parents with non-identifying information about their children’s birth families. In 1976, New South Wales introduced the Adopted Persons Contact Register, by which reunions could be arranged where all parties consented. After 1977, adoptive parents had to agree to tell their children of their adoptive status. Release of non-identifying information and outreach to locate birth parents and adoptees became more common. In 1984, Victoria introduced legislation giving adult adoptees rights to their original birth certificates. By the early 1990s similar legislation, some of it also giving rights to birth parents, had been passed in most Australian jurisdictions, and was under consideration in others.

2.9 The period between the 1970s and the 1990s saw continuing debate on the issues raised by the pressure for more openness in adoption. The new trends created great apprehension for some, especially adoptive parents who had adopted children in the climate of secrecy and feared that much that they had worked for was put at risk: they might lose the affections of their children, or have their lives otherwise complicated by the intrusion of members of the birth family. For adopting parents who had concealed the fact of the adoption from others, especially the adoptees themselves, the new openness threatened to reveal the true situation and raise difficult questions about why it had been concealed for so long. Even where the adoptees had been “told”, the new rights created dilemmas and difficulties: commencing a search could lead to revelations, emotions and relationships that would not necessarily be easy, and could have unpredictable effects on existing family relationships. There was apprehension, too, for some birth parents, especially those who had not revealed the facts to members of their present families. For some, opening the records held the promise of a personal voyage of discovery and might answer long-standing questions and ease stress and anxiety which had built up over the years; for others, it appeared to threaten the stability of their family relationships. For the former, it seemed indefensible for the law to continue to protect the secrecy of former times; for the latter, to open the records seemed grossly unfair, a retrospective law that betrayed the assurances of confidentiality which they saw themselves as having been given when they adopted children, or surrendered a child for adoption. Not surprisingly, the debate about adoption information law was intense and emotional, and various legal mechanisms were devised, or advocated, in an attempt to respond compassionately and fairly to the wide range of interests and perspectives held by those involved in adoption.