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The Influence of International Conventions on Municipal Adoption Law: The Disclosure Debate

In the United States, the internationalization of adoption law is most evident in the field of transnational adoption, particularly in light of the pending ratification by the United States of the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption. In many other nations, however, an equally intriguing aspect of the intersection of international law and adoption is the developing influence of human rights treaties on the reform of domestic adoption law. One interesting example is the extent to which the evolving interpretation of the Convention on the Rights of the Child (CRC) and the European Convention on Human Rights have already fostered reform of adoption disclosure laws and may continue to enrich the dialogue on this controversial subject in the future. The debates in many nations in recent decades about the opening of adoption records have been heated. Advocates for those adopted have asserted that the right of adopted adults to identifying information about their birth parents is a human right that must be unequivocally honored without exception. Because the CRC is often cited as the source of this right, it is interesting to compare the text and legislative history of this convention with subsequent practice. Three articles of the CRC are relevant here. Article 21, which is specifically devoted to adoption, fails to address the disclosure of identifying information. Article 7 includes a right "to know and be cared for by one's parents, as far as possible," a right to be implemented "in accordance with national law." Article 8 recognizes a child's right to preserve his or her identity, "as recognized by law, without unlawful interference." In the drafting process, neither a proposal mandating confidentiality nor proposals guaranteeing an adopted minor a right to identifying information could garner sufficient support for inclusion. A proposal that permitted but did not require confidentiality was withdrawn, on the understanding that the convention was neutral on the subject of disclosure. The legislative history of Article 8 suggests that its focus was illegal abductions rather than legal adoptions, and one of its proponents was a nation which at that time closed adoption records to adoptees. Neither the text nor the legislative history suggest that the Convention creates for adopted individuals an unequivocal right of access to identifying information. Scholars and experts who commented on or participated in the drafting concur with this assessment. Review of the reports submitted by contracting nations to the Committee on the Rights of the Child (Committee) over the past decade suggest, however, that many nations and at least some Committee members view the CRC as more broadly supportive of a right to identifying information than the compromises reached by the drafters might imply. While the interpretation of the CRC is hardly monolithic on this issue, and many nations have failed either to mention their disclosure policies in their periodic reports