P.E.I.'s move to open adoption records not what some advocates were looking for

Irene MacAulay has two reminders programmed into her phone to prompt her to reach out to her mother on days her mom might require extra support.

One is set for Christmas. The second, the date of Irene's unknown brother's birthday.

On that day in 1983 her mother gave birth to a baby boy who was adopted by a family in Ontario.

Her mom has been trying to find her son for the past 18 years. Irene joined in the search a decade ago, when her mother first told her about her missing brother.

MacAulay said she wants her brother to know that it wasn't the case he was unwanted, or that their mother wasn't fit to raise him at the time.

Kerry Campbell/CBC

She said she's also looking for her brother "just for peace of mind for my mom and the rest of my family, just to know that he's OK." 

The MacAulays were hoping legislation to open up P.E.I.'s adoption records would finally bring the search for their missing family member to its conclusion. But now that the bill has passed second reading, they don't believe that to be the case.

'Heartbreaking'

As with some others who've been advocating for opening up P.E.I.'s adoption records, they think the legislation goes too far to protect the privacy of birth parents or adoptees who want to keep their identities secret.

"It's heartbreaking and devastating," MacAulay said, adding that, because of some limits on disclosure, some adoptees or birth parents might only be able to learn the identities of family members after those people have died.

P.E.I.'s legislation includes the ability for birth parents or adult adoptees from adoptions that took place before Jan. 31, 2020 to obtain a veto from disclosure requirements, and thus keep their identity secret from the other party.

According to the province's report on adoption delivered in 2018, that veto exists in every province in the country that's opened up adoption records. It stems from a 2007 Ontario Superior Court decision that found not including an option to maintain privacy in legacy adoption files was a breach of a person's constitutional right to privacy.

Submitted by Irene MacAulay

In an email to CBC, a spokesperson for P.E.I.'s Department of Social Development and Housing said it is government's goal with the legislation, "to find a balance between individuals who wished to remain private and those who requested full access to their adoption information."

On P.E.I. a veto will remain in effect until one year after the person who filed it has died, after which time their identity can be disclosed.

MLAs questioned the veto when P.E.I.'s adoption changes were debated in the legislature on Thursday.

Most of these women they just want to know that their child is still alive. — Adam Drake

PC MLA Sidney MacEwen mentioned those who've been trying to access this information for years, and may still find it out of reach even after P.E.I.'s records are unsealed.

"It's frustrating," he told the House. "What do we say to those people?"

For adoptions after next January it won't be an issue, MacEwen noted, because those won't be subject to a veto. But with the historical adoption cases, he asked, "have we done everything possible we can with this legislation" to allow for the information to be shared.

"In my opinion as minister, member, yes we have," said Ernie Hudson, adding he would "almost guarantee" a more open approach would have been challenged in court.

Others voice concern around vetoes

Adam Drake has also been criticizing government's approach with the legislation.

Eight years ago, Drake was reconnected with a half-sister his mother put up for adoption in the 1960s, a sibling he never knew he had because his parents never told him.

His sister had been searching for her birth family, but the reunion only took place two years after Drake's mother died.

He points to provisions in the legislation that could require either party sign an undertaking before they receive identifying information.

Shane Hennessey/CBC

Attempts to contact the other party could be considered breaches of that undertaking, as could anything that could be considered to "intimidate or harass" that person.

Penalties in the legislation for failing to comply with an undertaking max out at a $5,000 fine or six months in jail.

Drake calls it "insulting" to people who might have given up a child for adoption under difficult circumstances, to threaten to impose jail time as a penalty for trying to reach out to them.

I believe it achieves the right balance. — Green Party Leader Peter Bevan-Baker

He also said the penalties are unnecessary.

"People can state the preference whether they wish to be contacted or not, and people will respect that," he said. "Most of these women they just want to know that their child is still alive.… As the person that brought that child into the world that's the very least of the information that she should be entitled to."

Asking MLAs to reconsider

MacAulay has written to all 27 of P.E.I.'s MLAs asking them to reconsider the legislation.

"This bill has the potential to make a life-changing impact on thousands of Islanders — and it is great news for future adoptees and their birth families," she wrote.

But she said vetoes and do-not-contact requirements would prevent information flowing in many of the roughly 4,000 adoption cases currently on record on P.E.I. — including her mother's.

"Adoptees and birth parents are not criminals. They are adults who have a right to have unfettered access to their own information," she wrote.

Opposition leader Peter Bevan-Baker said he's received more than a dozen similar emails, but he supports government's position.

"While the legislation may not be entirely what all parties were seeking, I believe it achieves the right balance between respecting the privacy rights of those involved in the adoption process and providing greater access to adoption records for those seeking more information," he said.

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