Everyone has the right to know where they came from and their family lineage. A big dilemma however arises whenever it comes to adoptions. Does one who is adopted have a right to know their origin? Adoption processes throughout the world have been shrouded in secrecy, maybe due to the sensitive nature of the relationship that is being severed or created out of the adoption exercise. The Children's Act, which provides for adoption in Kenya is silent on the question of whether or not adopted children have a right to know their origin.
And if at all they have a right, what information they can access and what they cannot. The information on the origin of the child is in the custody of the government which regulates and controls all adoption procedures, and adoption agencies countrywide. The lacuna in our legislation makes us resort to international law as a source of law in this area.
The Convention on the rights of the child, Article 8 provides that States Parties should undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference. It further provides that where the child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. Article 30 of the same convention provides that the competent authorities of a Contracting State shall ensure that information held by them concerning the child's origin, in particular information concerning the identity of his or her parents, as well as the medical history, is preserved.
They shall also ensure that the child or his or her representative has access to such information, under appropriate guidance, in so far as is permitted by the law of that State.” The Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, Article 9 thereof provides that the need of a foster or an adopted child to know about his or her background should be recognised by persons responsible for the child's care, unless this is contrary to the child's best interests.
The law in the United Kingdom provides that children can apply for a copy of their original birth certificate and for information about their birth family from the adoption agency, which arranged the adoption. Adult adoptees and birth family members can also apply to the Registrar General for entry of their names on the Adoption Contact Register which includes the names of adopted persons and the relatives of adopted persons. In other Jurisdictions, the right is guaranteed once one reaches the age of majority. In Kenya, when issues of the need for the child to know the biological parents arises, we can refer to the constitution for reference and guidance. Article 35 of the constitution provides that every citizen has the right of access to information held by the state, information held by another person and required for the exercise or protection of any right or fundamental freedom. Information regarding adoption of children in Kenya is held by the state and adoption agencies.
The constitution enables the child to apply to be furnished with information about their biological parents. Article 31 of the constitution provides that every person has the right to privacy, which includes the right not to have information relating to their family or private affairs unnecessarily required or revealed. This provision brings about a competition of rights and interests. The biological parents of the child have the right to have their matters kept in secrecy but the child on the other hand wants the information and know their true identities. Article 53 of the constitution provides that the best interest of the child is of paramount importance in all matters affecting the child. Children adoptees have a right to know the identity of their parents, the parent’s origin and the existence if any of their siblings. In pursuing the right to know ones origins, three interests emerge, medical, legal and genetic.
When enjoying the right, one must strike a balance between the need for one to know the biological parents, and protection of confidentiality/privacy of the biological and adopting children. It is in the best interest of the child to know their origins, more so for medical reasons. Sometimes birth certificates of children don’t have the parent’s names on them, due to various reasons. The recent decision by the high court that adopted children have a right to be given birth certificates further compounds the search of the real parents by the children, since the birth certificates will bear the adoptive parents name.