What About Open Adoption?

Is it the answer to closed stranger adoption?

Open adoption is the buzzword of the adoption industry.

How often have you heard described as the ethical alternative to closed stranger adoption?

It infiltrated adoption circles in New Zealand around 1985 with the passing of the Adult Adoption [Mis]Information Act, despite having nothing to do with open adoption.*

In 1990 a New Zealand Ministerial Adoption Practices Review Committee said: “One of the most significant changes to adoption practice over the past decade has been the introduction of ‘open adoption’… open adoption practices developed in part in response to the feelings of people involved in past adoptions.”

A decade later, the New Zealand Law Commission said: “New Zealand has been described as “leading western adoption practice with respect to openness”.

How do they know about all this openness?

Oranga Tamariki, the Ministry for Children who manage adoptions in New Zealand has no idea how many open agreements have been created: “We are not able to report on these numbers.”

The reason is simple: “The information is held in individual case records and aggregating it would require the creation of a new data set.” God forbid a new data set.

So, in the absence of data, what does ‘open adoption’ even mean?

When the Law Commission discussed differences between closed and open adoption, rather than focus on the embedded structural inequalities they made it about feelings, noting that some adopted people struggle with loss of identity. They then immediately minimised it: “Many adoptees of this era have no desire to trace their biological family origins.”

But given there are zero New Zealand studies of adoption outcomes in adults, how do they know?

Most adopted people have heard versions of someone-who-knows-someone who has no desire to know their origins. If this were even vaguely true, why the need for open adoption?

The Ministry of Justice – who today prefer the more neutral phrase post-adoption contact agreement – also has no data on the success or otherwise of this form of adoption or even a system in place to collect that information.

Despite this, they recently teased ideas of shared identity in a public discussion document on law reform: “It aligns with the practice of open adoption, which has developed over the last 30 years.” When asked under the OIA for the legal basis they said:

Once the court makes an adoption order, there is no provision for the sharing of “identifying” information between the parties. There is no protection in law for the enforcement of any contract previously agreed upon by the parties. This was – and remains – a voluntary arrangement between birth and adoptive families.

The Ministry of Justice clarifies their thinking in a follow-up document: “We also think that guardianship and its associated responsibilities should be removed from the birth parents. It recognises that adoption creates a new permanent and enduring family relationship between the adoptive parents and the child”.

And yes, they do mean permanent and irrevocable. For life and beyond.

So, no records, no shared identity or even the option for an adult adopted as a non-consenting infant to gain sovereignty over their own life.

The Ministry of Justice’s statement is no different in meaning from the Department of Social Welfare’s local placement manual from 30 years ago:

Open adoptions, while considered more positive for everybody than closed adoptions, [how do they know?] do not change the fundamental fact that birth parents lose all their legal rights to parent their children. Birth parents need to know that open adoption is neither joint custody nor a shared parenting agreement and that access cannot be enforced. Open adoption strives to voluntarily maintain family ties which have been legally severed by the Adoption Order.

The Ministry of Justice again on open adoption agreements:

If they were [enforceable], people could have the agreement enforced in court if it wasn’t being followed. This would provide some assurance that the agreement is important and will be honoured. However, enforcing the agreements may be harmful to the child if disputes over contact are escalated to court. The court process could also challenge good-faith relationships.

It could be argued that the lifetime, legal vassalage of a non-consenting person, the permanent severing of their identity, the sealing of all records and the allocation of an unrelated identity has never been conducted in good faith.

It is difficult to imagine adopters taking biological parents to court for anything other than cessation of contact. It is also difficult to imagine mothers taking adopters to court given the power imbalance and the absolute nature of adoption law.

Possession, as the Scottish expression goes, is eleven points in the law, and they say there are but twelve.

However, the Ministry of Justice does state that restricting access to information is contrary to open adoption practice: “It’s also discriminatory, as it means some adopted people aren’t able to access information in the way that non-adopted people are.”

Even this acknowledgement is deceptive. ‘Some adopted people’ should read ‘almost all adopted people.’ And as many of us know ‘access to information’ is very different to the right to all records.

It seems, only in human adoption can you have it both ways. In a sentence that feels smuggled into the Law Commission report, they added:

Although open adoption is being widely practised, it is not recognised in law and Family Court judges struggle to reconcile open adoption with the Adoption Act which acts as a statutory guillotine, promoting secrecy and the complete severance of ties between birth parents and children.

Do you ever wonder how adopters as a group feel about open adoption? While they were not required to identify as adopters (so the percentages could be higher), they responded to the Ministry of Justice public discussion documents from 2021 and 2022.

· 35.4 percent [of responders] did not agree that the adoptive parents should have to consult the birth parents on maintaining contact if they are moving.

· 29.8 percent said post-adoption contact agreements should not be enforceable.

· 29.8 percent said post-adoption culture plans should not be required.

· 16 percent said there should be no post-adoption contact agreements.

When you see these responses and compare them with the kinds of things adopters said to the Select Committee prior to the passing of the 1985 Adult Adoption [Mis]Information Act, you understand nothing has changed.

With all records excluded, any ‘openness’ was and remains controlled by adopters. From the perspective of the adopted person – how is open adoption different from closed stranger adoption?

It is, as it’s always been – a demand driven system backed by a statutory scheme to provide children to meet adult needs.

Open adoption is used by proponents everywhere to make adoption appear more equitable and ethical. But it is as fraught as closed stranger adoption. It is controlled by and can mean anything an adopter wants it to mean – from the exchange of a letter at acquisition, to full and open contact.

So tell me, what do you think open adoption is?

Next week:

*The Adult Adoption [Mis]Information Act

Coming up:

*What The Hague?

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