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418 When A FINAL ADOPTION ORDER IS MADE, a child’s original birth registration is sealed and a new birth certificate is issued. This lists the adoptive parents as the child’s parents, and a new name for the child is usually entered. There is nothing on the face of the reissued birth certificate to indicate that there is an original birth certificate.
Altering birth certificates
419 The sealing of original birth certificates after an adoption order has been made reinforces the secrecy that permeates the provisions of the Adoption Act. Over the last 20 years societal views regarding the perceived necessity for secrecy have changed,[432] and adoption is not viewed by society as much more than another facet of that person’s identity. In 1986 Judge Mahon observed that:[433]
There has been a marked change in community attitudes towards adoption in recent years with openness and lack of privacy being one of the hallmarks and with another being recognition that children require to know and require to be able to identify with their natural parents.
We might now ask whether is still necessary or appropriate for birth certificates to be altered in the way that they are at present.
420 Adoption raises significant privacy considerations in relation to all persons involved. Considerations include the extent to which an individual has the right to control access to knowledge about his or her adoption and the extent to which the State has the right to control the amount of information that individuals may seek about themselves. It also raises questions as to the type of personal information that others might legitimately seek.
421 The Births, Deaths and Marriages Registration Act is described in the long title as:
An Act to provide for –
(a) The recording of information relating to births, names, adoptions, sexual assignment and reassignment, deaths, and marriages; and
(b) Access to information recorded in respect of any such matter; and
(c) The provision and effect of certificates relating to such information recorded in respect of any birth, death, or marriage. 434
A birth certificate is defined as a certificate that contains registered birth information relating to that person’s birth.[435] A birth certificate records the date and place of birth, the names of the birth parents (to the extent that the father’s identity is known) and the name of the child.
422 However, birth certificates have come to represent much more than a simple record of the fact of an individual’s birth. Adoption and sexual assignment or reassignment provide grounds for altering a birth certificate.[436] Because a birth certificate reflects subsequent events in the life of a person, it is inaccurate to describe it as simply a certificate in relation to the birth of a person. It is perhaps more realistic to describe a birth certificate as representing a snapshot of an individual’s life at a certain time. The question is whether this is an appropriate use of the birth certificate, or whether new forms of identity documents might better reflect the changing events in a person’s life.
423 An individual needs to be able to prove entitlement to access benefits or services.[437] To establish entitlement, for most purposes it will suffice if a document can be produced attesting to an individual’s age, gender and nationality and/or citizenship.[438] A birth certificate is the primary means by which this is done.
424 Birth certificates are also used as a means of identifying parenthood, for the benefit of both parent and child.[439] However, parenthood may be defined in several different ways, and with differing consequences. A legal parent might not necessarily be the genetic or custodial parent. Persons other than legal parents might be exercising guardianship rights in respect of the child. In bygone eras most of these factors would have coincided in the parent(s) or the adoptive parent(s), as listed on a birth certificate, but this does not necessarily hold true for life in 1999.
425 Except in the case of adoption, birth certificates presume that natural and legal parenthood coincide in the person(s) named on the birth certificate. In the case of adoption the original birth certificate records natural parenthood and the reissued birth certificate documents legal parenthood as if it were natural parenthood.[440] It may be desirable for the State to record a range of information to enable an individual to interpret the importance of such factors in their own life. Consideration may be warranted of what sort of information an individual might want, and legitimately need, to have access to, and how that information might be recorded and stored. People have differing needs at various stages of their lives and the value which they place on different types of information will vary. For example an individual might need to have access to information about his or her genetic parenthood for medical purposes. It is hard to state categorically whether it is more important for an individual to know who gave birth to him or her, from whom a person is descended or to know to who is legally responsible for the individual. It may be that all of this information is relevant, but for different purposes.
Should a birth certificate simply be a record of the birth of a child (as indicated in section 2 of the Births, Deaths and Marriages Registration Act) or should it also contain information about the genetic and legal parenthood of that child?
Is there any other information that might be recorded on a birth certificate?
If it is to be a full record, should the original details and subsequent changes be shown on the face of the certificate?
Would adoption be more appropriately reflected by a certificate of legal parenthood rather than by an altered birth certificate?
Where artificial reproductive technology or a surrogacy arrangement is involved, should the names of the genetic parents/commissioning parents also appear on the birth certificate?
426 Prior to 1986 it was difficult to obtain a copy of an adopted person’s original birth certificate. The Adult Adoption Information Act, which started life as a Private Member’s Bill, enabled adoptees to discover their origins and for birth parents to find their child. After counselling, adoptees can obtain the original birth certificate. They can also ask Social Welfare to provide identifying information about the parent. Once Social Welfare has obtained the name and address, Social Welfare will approach that person to find out whether the birth parent is willing to meet his or her child. Conversely, birth parents who wish to make contact with their child can apply to Social Welfare to locate the adopted child. Social Welfare then finds out whether the adopted person is willing to have identifying information communicated to the birth parent.
427 It may be difficult for an adopted child to obtain information about a birth father. If the birth father’s name does not appear on the birth certificate[441] an adopted person can only find out the name of the father if he or she can prove to the Registrar of Births, Deaths and Marriages that the birth father has died.[442] Access to such information is usually sought by an application under section 23 of the Adoption Act.
428 Birth parents who adopted out a child before 1986 can lodge vetoes to prevent an adopted child from seeking information.[443] Adopted persons, irrespective of when they were adopted may request that a birth parent is not given identifying information.[444]
Should the legislation be amalgamated?
429 Access to adoption information is currently governed by the Adult Adoption Information Act and section 23 of the Adoption Act. Other jurisdictions incorporate provisions relating to adoption information within the adoption legislation. Provisions relating to access to adoption information could be incorporated in a comprehensive adoption statute.
Should the Adult Adoption Information Act be incorporated within the Adoption Act?
Age restriction
430 The title of the Adult Adoption Information Act establishes the Act’s purported coverage. The Act applies to those over the age of 20.[445] When Jonathan Hunt MP introduced the Bill for its second reading, he drew an analogy between the adoption process and contract law.[446] The contract takes place between the birth parent(s) and the adoptive parents in respect of a third party (the child). In Hunt’s view, when that third party reaches the age of majority, the adoptive person’s rights in respect of the contract transcend the rights of the other adults involved in the process. Restricting access to information until the child reached the age of 20 served to assuage the fears of some adoptive parents that the natural mother would attempt to intervene in the relationship between the adoptive parents and child.
431 However, there is a growing recognition of the autonomy of young persons. As the Privacy Commissioner has observed, for most practical purposes the age of 18 years is the effective age of majority.[447] Consideration is warranted of whether the arguments justifying the existing age limit are compelling.
Should there be any age restriction at all on access to an original birth certificate?
At what age should an adopted child be entitled to further information about his or her identity?
Access to information by other family members
432 The Adult Adoption Information Act does not give other family members a right to search for an adopted relative, or the birth parent of an adoptive relative. In some cases family members have sought to use the Official Information Act and the Adoption Act to locate adopted siblings, half siblings and grandchildren who have been adopted.[448] For some Mäori, the secrecy surrounding adoption and the practice of reissuing the birth certificate entails the “stripping of cultural identity”.[449] Knowledge of one’s background is essential to establish whakapapa, which defines the person as an individual and gives that person a place as a member of a particular social group.
433 Inevitably such applications involve balancing the individual’s right to privacy against the family’s desire to make connections. In other jurisdictions a compromise has been made, allowing relatives access to information where a birth parent has died.
Should other family members be entitled to seek information about relatives who have been adopted?
If so, should access be limited to certain classes of family member?
Should such access to information be limited to where the birth parent linked to that family has died?
The Assisted Human Reproduction Bill 1998
434 By way of contrast to the Adult Adoption Information Act, the Assisted Human Reproduction Bill 1998 proposes much wider access to information to donors, children born of donor gametes and the parents of children born of donor gametes.
435 The Bill provides for the collection of “general” information as well as information prescribed for the purposes of the Act. Providers[450] must inform donors that personal information prescribed for the purposes of the Act[451] will be gathered and retained. Some of the information will be forwarded to the Registrar-General of Births, Deaths and Marriages.
436 The Bill allows persons over the age of 18 years to access any donor information kept by a provider or the Registrar-General. A child under the age of 18 years must be given access to all non-identifying donor information that is in the provider or Registrar-General’s possession. A parent of a donor child under the age of 18 years is entitled to access information about the donor.
437 The Bill enables the donor child and parents to provide further information to be placed on the provider’s record. A child may request the provider to delete, amend or destroy any information that the provider holds (other than prescribed child information).
438 A donor person over the age of 18 years may consent to the disclosure of identifying information to the donor. Until that time the provider/Registrar-General must inform the donor if it holds information about the child and may release that information only where specifically requested and where the donor child has consented to its release. After the donor child has reached the age of 25 years the provider/Registrar-General must give the donor access to any information about the child.
439 There is a residual discretion for the provider/Registrar-General to refuse to grant access to information about a donor if it is satisfied on reasonable grounds that to do so is likely to endanger any other person.
440 The Bill provides a statutory right of review for persons denied access to information or denied the right to amendment, deletion or destruction of the information held by the provider or Registrar-General.
Should adoptees and birth parents be given rights of access to information similar to those proposed for children born of donor gametes?
Vetoes
441 Where an adoption took place before the introduction of the Adult Adoption Information Act both birth parents and adoptees may veto access to identifying information from the birth register.[452] An adoptee can lodge a veto at any time. Every veto must be renewed 10 years after it was placed, or it will expire. Birth parents cannot place vetoes in respect of adoptions that have occurred after the introduction of the Adult Adoption Information Act.
442 Placing a veto does not prevent an adoptee or birth parent seeking further information about their child or parent, but simply restricts access to information on the register. Libraries around the country hold the register of births, deaths and marriages. Agencies such as Jigsaw provide guidelines to assist those attempting to find their birth parents. To this extent, the existing veto provisions provide a false sense of security.
443 The veto scheme was introduced when the Adult Adoption Information Act came into force. In 1986 birth parents and adoptees placed 3730 vetoes. By 1996 a further 826 vetoes had been placed. Those vetoes placed in 1986 were due for renewal in 1996. Of the 3730 vetoes placed, only 489 were renewed.[453] 1996 saw a slight increase in an otherwise declining rate of new vetoes – some of these may be replacements for vetoes that had expired.
444 Vetoes placed by birth parents will continue to decline in importance. Birth parents cannot place vetoes in respect of adoptions that took place after 1986. Presumably, most persons who are eligible to place vetoes would have already done so, and any further vetoes are unlikely. We are unable to assess the importance of the right to lodge a veto for children who were adopted after 1986. These people will not be eligible to lodge vetoes until the year 2005.
445 In New South Wales a birth parent cannot place a veto upon information, but can place a non-contact veto. Where such a veto has been lodged, as a precondition of accessing information the adoptee or birth parent must agree to abide by the non-contact veto.
446 The non-contact veto prohibits contact by the searcher or by any other person with the person who has lodged the veto. It is an offence for anyone to harass or intimidate any protected person in relation to the adoption. It is not necessary for the Adult Adoption Information Act to contain penalties for harassment. The Domestic Violence Act 1995 (the ‘Domestic Violence Act’) provides protection from harassment by an adopted person or natural relative.[454] The Harassment Act 1997 protects citizens against harassment or intimidation by any person. This legislation encompasses the situation where a person is harassed or intimidated as a result of disclosure of adoption information. For this reason we do not contemplate recommending sanctions for harassment or intimidation within the adoption or access to adoption information legislation.
447 The non-contact veto has been criticised by those who argue that it is hard to believe that such a system would work. However, a review of the New South Wales system concluded that there has been a remarkably high level of compliance with the non-contact system.[455]
448 The existing information veto system does not necessarily prevent a person from accessing the relevant adoption information. At most, it makes it more difficult and time consuming to access the information.
449 Perhaps the focus in the veto debate should be on what the person lodging the veto is seeking to guard against. An enforceable non-contact veto with a penalty for breach might also afford a sense of security to birth parents or adoptees who do not wish to be contacted. We should give consideration to whether this option might be preferable to the existing information veto.
450 Several options for reform present themselves:
• We could maintain the status quo of information vetoes available to all adopted persons, and birth parents who adopted out children prior to 1986.
• A second option might be to introduce non-contact vetoes instead of information vetoes, and convert existing information vetoes to non-contact vetoes with the consent of the person who had lodged the veto. This system would apply to both adopted persons and birth parents. In accordance with the 1985 legislation, no person who adopted out a child after 1986 would be able to place a veto.
• A third option is a modified version of the preceding paragraph. This system would allow any adopted person or birth parent to lodge a non-contact veto even where such persons have not lodged an information veto under the current system.[456] This option might be seen as a retrograde step, because it would limit the current rights of persons adopted after 1986 to contact their birth parents.
• Alternatively information vetoes could be abolished.
Should non-contact vetoes be used instead of information vetoes?
Should adopted persons and birth parents be allowed to convert an existing information veto into a non-contact veto?
Should birth parents who adopted a child out after 1986 be able to place any type of veto?
Should information vetoes be abolished?
451 Adoption records that are held by Social Welfare fall within the purview of the Official Information Act 1982 (the Official Information Act). The information often replicates, but in many cases is more detailed than, the information contained in the court adoption files. Many adoptees and birth parents have sought access to these files in order to ascertain their origins. In some instances where relatives of the adoptee have applied for access to the records, Social Welfare has refused to give access to records. Section 27(1)(b) of the Official Information Act allows a decision-maker to refuse to disclose personal information if it would involve the unwarranted disclosure of the affairs of another person or a deceased person. This provision has been interpreted in such a way as to deny an adopted child access to information about its birth parents.[457] The authors of Freedom of Information question this interpretation of section 27, commenting that the ordinary definition of the word “affairs” militates against its including names.[458] The grounds commonly given for a refusal to allow access to records are generally that Social Welfare considers the refusal necessary to protect the privacy of the persons concerned, or that releasing the information would prejudice the maintenance of the law.[459]
452 The Ombudsman has interpreted section 6(c) of the Official Information Act as meaning that where legislation states that documents are not to be available except in certain circumstances, the Official Information Act should not be used to circumvent that restriction. Therefore the Ombudsman held that applications should not be made directly to Social Welfare for access to files, but to the court pursuant to section 23 Adoption Act.
453 Section 23 of the Adoption Act provides that adoption records shall not be open for inspection, except in certain defined circumstances[460] or by court order. The term “adoption records” refers only to those records held on the court file.[461] Court records are specifically excluded from the ambit of the Official Information Act, and can only be obtained through this section.
454 Persons applying for access to court records generally apply under section 23(3)(b)(ii) which allows the court to permit access to court records on any “special” ground. In the past the court has interpreted section 23 strictly, refusing most applications on the grounds that seeking knowledge about the applicant’s origins or the identity of relatives cannot be regarded as a “special ground” but is in fact a quite normal emotional response to adoption.[462]
455 Some courts have been more lenient than others when considering these applications. Applications filed in Auckland have a much higher rate of success than those made in the South Island.[463] In Auckland, Wellington and other parts of the North Island Judges usually request a report from Social Welfare about a section 23 application.[464] In order to create a report Social Welfare usually needs access to the court file, Social Welfare files and the records of the Registrar-General. Judges find it useful to obtain a report on the application from Social Welfare, but are concerned that this practice is not authorised by legislation.
456 The Principal Family Court Judge, the Ombudsman and Social Welfare are currently seeking an amendment to extend the circumstances under which a section 23 application can be brought and to broaden the definition of the term “adoption records”.
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URL: http://www.nzlii.org/nz/other/nzlc/report/PP38/PP38-15_.html