Children's Access to Adoption Records—State Discretion or an Enforceable International Right?
| Date | 01 January 1995 |
| Author | Geraldine Bueren |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb01993.x |
| Published date | 01 January 1995 |
Children’s Access to AdODtion Records
-
State
Discretion or an Enforceaile International Right?
Geraldine Van Bueren
*
Although at first sight the issue of children’s access to adoption records appears
both narrow and arguably clear in international law, it is an issue which raises
fundamental questions. It
is
not that secrecy is inherently wrong, the arguments do
not rest upon
a
moral presumption either way.’ The questions which
are
posed
here are, first, whether secrecy
is
appropriate in relation to adopted children and,
second, whether the legal control of secrecy equally serves both adults’ and
children’s interests.
Access by children to their birth records whilst they are still children is
perceived
as
opening ‘Pandora’s Box,’ risking traumas between three possible
parties: the adopted child and the adoptive and birth parents. Nevertheless,
because it is an issue which challenges our notions of equality, setting issues of
participation and autonomy against those of protection and welfare, it ought no
longer to be avoided.
The moral imperative behind much of international human rights law is the
treatment of all of humanity as of equal worth. Hence, many international and
regional human rights treaties enshrine either general or specific provisions on
equality and unjustifiable discrimination. However, although international law
takes a substantive approach to equality rather than a formalistic one,2 the
concept of equality has been insufficiently developed to counter child
discrimination effectively. Had it been otherwise, it would not have been
necessary
to
adopt
a
global human rights treaty for children because they would
already have
been
sufficiently protected under general equality clauses. Indeed,
the misapplication of the equality principle has had negative consequences for
children, as their particular needs have not been taken into account.
Belatedly, there has been a welcome and increasing
focus
on the discrimination
occurring between adults and children, but discrimination between different
groups of children often passes unnoticed. This is because there
is
an additional
element to discrimination concerning children which does not appear to have been
considered by human rights fora. Differences may be introduced because they
appear at first sight to be necessary for the protection of children, but such are
arguably unlawful unless they can be shown to have an objective and reasonable
ju~tification.~ Child access to adoption records also has equality implications for
adopted children as a class. Older children will remember their names and require
*Senior Lecturer and Director, Programme on International Rights of the Child, Faculty of Laws, Queen
Mary and Westfield College, London.
This
article is based upon a paper presented to the Second International Study Group on Ideologies of
Children’s Rights, Charleston, South Carolina.
1
A
different starting point from Simmel who imparts negative values to secrets, ‘the sociological
expression of moral badness.’ Simmel, ‘The Secret and the Secret Society’ in Wolff (trans),
77w
Sociology
of
Georg
Simmel
(Glenco: Free Press, 1950) p 331.
2 See,
for
example, the observations of the Permanent Court of International Justice (PCU, 1923) Ser
B
No
6(1),
24.
3
See
Belgian Linguistic
case, Judgment of the European Court of Human Rights, Series
A,
No
6
(
1968).
0
The Modem Law Review Limited
1995
(MLR
58:
I,
January). Published by Blackwell Publishers,
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lke Modem Law Review
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58
an explanation for a change, whereas those adopted as babies will
be
dependent on
their adoptive parents for the information.
At the heart of the issue is whether it is possible
to
separate biological childhood
from social childhood and to deny to the latter rights which are enjoyed by the
former. Social childhood occurs where the parental roles, with the exception of
birth, are legally or customarily transferred or delegated. Social childhood is
voluntary from the parental side and sometimes requires the consent of the child.
In contrast, biological childhood is based solely on blood ties and is autonomous,
although it sometimes precedes social childhood. Adoption, fostering and kafalah
are three examples of social childhood.
Adoption is a global but not a universally accepted phenomenon. It is accepted
by a diverse range of cultures and religions, including Christianity, Judaism,
Hinduism and Shintoism. Some states, such as Korea, have developed the
institution of adoption to protect abandoned children, even though it was never an
indigenous practice. Adoption is not recognised by the Koran: although
adoption was widespread among Arabs before Islam and remained valid during
Islam’s early days. Instead, Islam has developed the concept of kafalah to provide
substitute care for children who cannot be cared for by their biological parents.
Kafalah does not alter the kinship str~cture;~ hence, the child’s genealogical
identity is maintained. Adoption has, however, been incorporated into some states
with significant Muslim populations, for example, Tunisia.
Adoption
-
a history
of
discrimination
Undoubtedly in the past two decades, a shift
has
occurred with the recognition by
states that adoption is a facet of child care6 rather than a service primarily
provided for childless couples. However, adopted children as
a
class still suffer
from one specific form of legitimised discrimination. In the majority of states
where adoption is accepted, adopted children are not entitled to access to
information about their heritage and genetic origins. With few exceptions, for
example Finland, and Scotland at the age of
17,7
adopted children are either
denied access to their adoption records or only have access on reaching adulthood,
either generally or for specific reasons such as health.8 One extreme example of
the ‘clean break’ philosophy was the former Soviet Union’s civil law which
prioritised the secrecy of the adoption order and prohibited its disclosure without
the consent of the adopters, legislation which was reinforced by a fine or two years
corrective lab~ur.~ Other states, as in England and Wales, grant access
only
upon
reaching adulthood. Although international and regional human rights law has
done much to reduce discrimination against specific groups of children, in
particular non-marital children, states appear to have accepted this facet of
different treatment suffered by adopted children, many of whom, ironically, are
4 Sura Ahzab
XXXN,
Verses 4-5.
5
Kafalah enables children to live permanently with families, but the children are not entitled
to
use the
family name
or
inherit
from
the family.
6
See
Arts 20 and 21, Convention
on
the Rights of the Child 1989; Art 24. African Charter
on
the Rights
and Welfare of
the
Child
1990
in
Van
Bueren: International Documents on Children
(Dordrecht:
Nijhoff, 1993).
7
Adoption Act (Scotland) 1930.
8
See further below.
9
Harwin, ‘Adoption Policy and Practice’ (1992) 16
Adoption
and
Fostering
16.
38
0
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Modern
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Review
Limited
1995
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