AdopTalk

...
Lawyer launches adoption law challenge
Clayton Ruby says law that allows birth parents, adoptees to access information about each other is unconstitutional
Oct. 13, 2006. 05:55 PM
CANADIAN PRESS

An Ontario adoption law that allows birth parents and adoptees to access information about each other is "dumb," ``unconstitutional" and violates the Charter of Rights and Freedoms, lawyer Clayton Ruby said today.

Ruby, a noted Toronto civil liberties lawyer, is launching a constitutional challenge to the Adoption Information Disclosure Act, which passed third reading a year ago and is expected to be proclaimed next year.

"This is a personal choice and the government has failed to respect the personal nature of that choice," Ruby said.

"We say it's not only dumb, it's unconstitutional."

Marilyn Churley, a former Ontario New Democrat and "mother" of the bill, said she respects the opinions of those behind the challenge, but called Ruby's choice of words unfortunate and disappointing.

Ruby is filing the challenge on behalf of four Ontario residents, three adoptees and one who gave up a child for adoption. They say the legislation should have included a veto for anyone who wishes to remain anonymous.

The group maintains that people who entered into adoption under the promise of privacy should not have that security taken away.

"As adoptees, we feel that as adults, we should have control over who has access to our personally identifying information and that the right to privacy is fundamental," said Joy Cheskes, one of the applicants who was adopted at a young age.

But Churley said the feelings of young mothers who were forced to give up their children must be taken into account.

"I think it's cruel, absolutely cruel to keep a natural mother suffering without at least her being able to get the information even if the adult adoptee doesn't want contact," she said.

Eight years ago when Churley found the son she had given up as a teenager it was "indescribable," ending heartbreaking years of uncertainty, not knowing if he was alive and well.

"I never got to hold him," she said. "I only got to stare at him through glass and stare into his little, blue eyes and say, `One day I will find you.' And every year of my life until I found him I suffered because I didn't know what happened to him."

Ruby said British Columbia, Alberta and Newfoundland have passed similar legislation to Ontario's, but those provinces each require consent to disclose personal information.

That makes Ontario the only province to introduce an automatic disclosure policy.

If a birth parent or adopted person is seeking information about the other, the other party can file a non-contact order.

That would make contact illegal, but the personal information would still be known, which Cheskes and the other applicants say is still a violation of their right to privacy.

There is also a board people can go before to make an application for information to remain private, but exceptional circumstances must be proven.

Ruby said though contact is prohibited, the law doesn't prohibit secondary disclosure of identifying information to friends or family, or even making it public.

However, Ruby said he doubts the police would be effective in preventing contact."

Denbigh Patton, one of the applicants, said disclosure of information should be possible, but only when both parties consent.

"Many adoptees do decide that they want to find out this or that, they want to meet or they want to learn about their biological origins," he said.

"But they decide when they want to do that and it's a deep decision.

The office of the Information and Privacy Commissioner of Ontario said when the bill was being considered, the commissioner was opposed to such legislation without provision for a disclosure veto.

However, the office would not comment on the constitutionality of the new policy now that it is legislation.