If the “Adopted in Nova Scotia” group on Facebook is any indication, nearly 5,000 people in this province are searching for either their birth parents or adult children who were placed with adoptive families.
They are looking for clues to help answer questions that people raised by their biological parents don’t have to ask. Who are my parents? My grandparents? Aunts and uncles? Where did they come from? Do I have siblings? Why do I have a passion for music or this curly hair that my adoptive parents don’t? Did my birth parents have genetic or medical conditions that could emerge in my life or my children’s lives?
Thousands of adoption records that could hold answers to these profoundly personal questions are held by the Department of Community Services. “Non-identifying information” available to an applicant might include information on the adoptee’s birth history and early development. They might contain the birth parents’ physical descriptions, health information, religion, occupations, or education.
What it is not available are the names of Mum and Dad.
The Nova Scotia Adoption Information Act was passed in 1996. Adoptees are not allowed to receive the names of birth parents unless the parents give consent, even after they’re dead. Birth parents can’t get the name of the adoptive parents who raised their child unless they consent.
Every other province in the country has changed its legislation to allow greater access and sharing of this personal information, while still maintaining boundaries to protect privacy. (We’ll look at how that’s handled later).
Meanwhile, Nova Scotia is the last province where adoption records remain tightly closed. It’s as if legislators take a perverse pride in declaring, “We’re Number Ten!”
Six and a half years ago, I did a documentary for CBC Radio about efforts underway in the Maritimes to open adoption records. At the time, I spoke with Kate Foster, who had spent nearly 25 years trying to find her birth father. His name is listed on the adoption record, but her birth mother did not consent to releasing that information. It became important to Kate for several reasons, who identifies as African-Canadian and was born to a white mother and black father. When Foster was pregnant with her first child — who had a potentially serious heart condition — she was unable to answer the obstetrician’s medical history questions.
Marilyn MacDonald told me a similar story. MacDonald became an advocate for opening adoption records after she, too, failed to get her birth father’s name from the adoption file. (It’s worth pointing out that in adoptions going back to the 1960s and even the 1970s, it wasn’t unusual for the birth mother either to withhold the father’s name or to put down an alias). When her teenaged daughter suffered a spontaneously collapsed lung, a harrowing ride to the ER precipitated questions from the attending physician about family history that MacDonald couldn’t answer.
Unable to get the names of their birth parents, both women paid $129 to Ancestry.com to have their DNA tested. Kate discovered her DNA most closely matches the Luo people from a western region of Kenya where Barack Obama’s father was from. Without the family name, though, that’s where Kate’s trail goes cold. Marilyn was luckier. Through the DNA match, she discovered two female cousins on her father’s side and learned she was part of a sprawling Acadian family.
The resistance of successive governments of all stripes to act on this file has even led to speculation that historically, some politicians didn’t want personally embarrassing revelations to see the light of day.
But it’s against the backdrop of compelling accounts about family reunions (not all of them happy) and decades of advocacy on the part of adoptees that the McNeil government finally began to act. Last November, after all other provinces had modernized their legislation to allow for the partial or full disclosure of adoption records, the Nova Scotia Department of Community Serves undertook a public consultation and online survey. Eighty-two percent of 2,700 respondents said they supported allowing more access to adoption records.
Despite that overwhelming support for action, the Minister of Community Services resorted to the familiar non-committal language of political incrementalism. In March, 10 days before restrictions flowing from the pandemic arrived, Kelly Regan told the CBC “it is my intention to ask permission to do legislation on this particular issue. But there are steps I have to follow.” (italics added by Halifax Examiner)
Fast forward to October 2020, with the next sitting of the Nova Scotia Legislature yet to be announced (“We’re Number Nine!” this time, because Saskatchewan called an election before the Legislature could resume sitting). The Halifax Examiner emailed the Department of Community Services to ask if the Minister would commit to introducing changes to the Adoption Information Act during the fall session. Here’s the fuzzy, non-committal response received from Lynette MacLeod, senior communications advisor for Community Services.
It is premature to comment on the pending Fall session.
Government remains committed to working through this important process and we are grateful to the many Nova Scotians who took the time to provide valuable feedback on the topic of adoption records. Results have been compiled here: https://novascotia.ca/adoption-records-consultation/Adoption-Record-What-We-Heard-Report.pdf
“This is an important and complex issue,” the email from Macleod continues. “The majority of survey respondents indicated that they want a Disclosure Veto option for all adoptions, including past adoptions and future adoptions. This will of course be a key consideration as we move forward with any proposed legislation. We will ensure services are ready in advance of any changes.
“I believe more stalling is all this is,” said Marilyn MacDonald when I contacted her last week to tell her it is uncertain whether legislation will be introduced this fall. “Although I have gained a great deal of information — more than many — the fact I am an adoptee has been a lifelong struggle. Every time I revisit it, I feel another part of me being chipped away. I think government counts on that from those of us who challenge the issue. And eventually, we give up or die.”
Kate Foster is also disappointed. “I don’t believe opening records will help me personally,” she says, partly because so much time has passed, and it is doubtful her birth father is still living. “But opening up records will help many adoptees (and their children) find answers to vitally important questions about their family origins, health and identity (a basic human right denied to adoptees). Many adoptees— especially those adopted in 50s, 60s, 70s — are getting older and losing the ability to learn about their background because family members are dying as time goes on.”
Scott Pyke heads up the “Nova Scotia Adoptee Advocacy Group” on Facebook. He is also a member of the “Adopted in Nova Scotia” group which has been helping adoptees search for their birth parents for many years.
“We continue to be optimistic legislation will be brought forward this fall,” said Pyke. “We’ve been in consistent communication with government and this change to the Act has the support of all three political parties. This fight has been going on for more than 30 years and we are going to keep pressing on this.”
While Pyke remains hopeful draft legislation will be coming soon, he hasn’t seen anything yet. One key aspect about how “open” or accessible adoption records will become depends on another choice. The response from Community Services indicates the government intends to provide what’s called a “non-disclosure veto” for all past and future adoptions. That essentially gives an adoptee or a birth parent a one-year deadline to object (in writing) to the release of the adoption record. It’s similar to the “negative option” used in marketing. If there is no objection, the applicant will receive the entire adoption record, including names. This is only marginally more open (it provides a deadline) than the current policy which also puts the onus on getting written consent before names will be released.
The proposed “non-disclosure veto” is more restrictive than the “no contact preference” which New Brunswick and Prince Edward Island use. The “no contact preference” allows the birth parent or the adopted child who is the focus of the search the option to refuse all contact (such as phone calls or visits) but still allow the applicant to see the entire adoption file including the names.
“Until we see the wording of the bill, we don’t want to comment on whether it should include a “non-disclosure veto” or a “no contact preference”,” said Pyke. “We will wait and see. We have always supported a balanced approach and recognize there is a need for privacy.”
Kate Foster was one of 2,700 people who participated in the government online survey on adoption records last year. In December, she wrote, “Adopted persons should be able to obtain their original birth documents from the government of Nova Scotia. (The right to know one’s origins is recognized by the United Nations Convention on the Rights of the Child (Part 1, Articles 7-8).”
Importantly, the survey question about how to make adoption records more accessible did not include a “no contact preference”; it asked only about a “non-disclosure veto”:
1. If NS passes an open adoption records law, to which adoptions should a disclosure veto apply?
In the neighbouring provinces, the disclosure veto applies only to past adoptions — those conducted prior to 2018 in New Brunswick and prior to 2020 in Prince Edward Island, when the laws changed to catch up with the rest of the country. Adoption records in both provinces will be open to all applicants in the future as long as they commit to respecting the “no contact preference” of the people named.
“I don’t think disclosure vetoes should be used in Nova Scotia,” Foster wrote in her submission to the 2019 online survey. “They cannot be called ‘open’ in any way. The use of disclosure vetoes means that some adoptees will not have access to important and deeply personal information about their birth and origins. A disclosure veto means that privacy and secrecy take precedence over a right to know one’s origins. It would mean status quo and no move toward openness for some adoptees. A contact veto is a fairer way to balance the right to know with the wish to not have a relationship with a parent or child.”
Another COVID delay?
The Department of Community Services did not offer a reason for why new legislation could not be brought forward at this time, if it does get punted down the road. The response indicates services would need to be put in place to handle the volume of requests.
“Life throws these curveballs and if it wasn’t for COVID, this legislation would almost certainly be forthcoming,” said Pyke. “The pandemic has caused resources to be moved around to serve people. There are a lot of gears turning. I want to see this done properly so we don’t have to come back in two years and re-do it. “
Given the experience in all other provinces where adoption records have become more open, it’s likely the number of people applying would increase. But that doesn’t mean politicians can’t proceed with making the change and staffing up afterwards. If there is a non-disclosure veto, adoptees or birth parents who apply for their records must wait at least a year to see whether the other party responds. During that year, processes could be modernized (such as converting thousands of paper records to digital files) and civil servants from other departments could be re-assigned.
The process is already slow. When Scott Pyke applied to access his adoption records in 2018, he waited 15 months without an answer before turning to Ancestry.com. With the help of the DNA test and experienced members of the parent-finders group “Adopted in Nova Scotia,” he was able to track down his birth family within a few months. Back in 2014 when I first interviewed Foster and MacDonald, the Department of Community Services said it was averaging 400 inquiries a year from people requesting names from their adoption record. Each year approximately 30 of those applicants were refused.
At a bare minimum, a legislative change to include a “no contact preference” or a “non-disclosure veto” could at least give adoptees and birth parents the opportunity to learn more about each other. As it stands today, the names on adoption records remain sealed even after the individual who initially withheld consent is dead and gone.
Only in Nova Scotia.