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Privacy, Anonymity and Adoption: A Drama Unfolds
By: Carole Lucock

June 28, 2005

OEDIPUS: With all these indications of the truth
here in my grasp, I cannot end this now.
I must reveal the details of my birth.

Sophocles, Oedipus the King

Proposed change to adoption law in Ontario would provide adoptees with access to their sealed birth records. This has created an intriguing drama that has seen privacy commissioners from across Canada line up along side Ontario’s Information and Privacy Commissioner, Ann Cavoukian, as she calls for amendments to Bill 183. These amendments, if accepted, would prevent the retroactive opening of sealed birth records (which the proposed Bill allows) if birth parents exercised a veto to prevent this from happening. Groups representing adoptees are calling instead for a contact veto, which would prevent adoptees from contacting birth parents if the parents had exercised this veto.

The Ontario Commissioner is arguing that at the time of adoption there was “an understanding or social contract that created an expectation of privacy and confidentiality that should not be retroactively revoked.” Others deny that assurances of confidentiality were made, or at least, that made as a matter of official policy. In addition, she raises concerns related to the emotional and psychological harm that might be caused if this understanding is changed retroactively.

Although I am concentrating on the issues as they relate to adoptees, it should be noted that Bill 183 also provides a right of access to the adoption records by the birth parents, which has also been criticized by the Ontario Commissioner and others, see for example, Laura Eggertson, “Don’t put these adoptees at risk again” Globe and Mail. June 14, 2005.

This drama heightened when it was reported that sixteen adoptees had filed human rights complaints with the Ontario Human Rights Commission against Ann Cavoukian on the grounds that her statements in connection with Bill 183 “‘intended to incite the infringement’ of an adoptee’s human rights to equal treatment regardless of family or marital status.”

News of these complaints drew rapid responses from Cavoukian and others, who claim that the adoptees’ human rights complaints are groundless in law and fact. Moreover, Cavoukian states that she sees “the filing of this complaint as an effort to silence my voice and discourage me from performing my duties to the public and the Ontario Legislature.”

These developments raise a host of procedural and substantive questions that will no doubt receive further comment from scholars and others in the coming months. These include:

· What is and should be the role and authority of privacy commissioners (and other similar office holders) with respect to the introduction or amendment of legislation and, in particular, the positions they adopt as they offer critical comment? For example, should such comment be based on principles grounded in the legislation that establishes the office? If not, on what should comment be based?

· What is and should be the relevance and weight of past promises, assurances or understandings of confidentiality or privacy when legislation is introduced that aims to change the status quo? What difference does it make if government has itself previously provided the assurance or the promise? If we extrapolate the principles that the privacy commissioners have adduced in this case to other cases, how would they apply? For example, in the context of health information, it would seem that past promises or assurances regarding confidentiality were at least as significant. However, recent legislation pertaining to health information across the country permits access apparently inconsistent with these expectations (for example, by granting access to health information to researchers without consent).

· What implications does the position taken by Canada’s privacy commissioners have for one of the cornerstones of informational privacy legislation and fair information practices in general, that of the right of access to one’s own records? Extrapolating from the adoption case, will the right to privacy trump the right of access when a record is subject to a collateral promise to another who is also implicated by the record?

So far, the debate about this issue has been heated and polarized. This is not surprising. It is difficult to think of a record that is more fundamentally connected to the person than the record of her birth, notwithstanding that promises of secrecy or confidentiality with respect to this record may have been given to somebody also implicated by the record.

Fundamental and ancient questions about the meaning and nature of identity are here at issue, opening up difficult questions about anonymity, privacy and the right to know the truth. The unfolding drama in Ontario could help us explore these issues not only from the perspective of the principled basis for argument and counter-argument, but also in the recognition that we are here dealing with matters that are, in significant ways, beyond our grasp.

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