This article is the 19th in a series about Koreans adopted abroad. Adoptees’ rights to access to information on their identity has not been adequately assessed by Korean law experts, though it is a fundamental human right prescribed by the United Nations Conventions. Kang Te-ri is one of the few Korean lawyers who has expertise on this issue and has analyzed the status of this right under Korean law and systems. ― ED.
By Kang Te-ri
While there’s been much discussion on the challenges of guaranteeing adopted people’s “right to origins,” there’s been little talk about the specifics of Korea’s current legislation on the matter. The Right to Know One’s Origins is a right that derives its basis from Article 7 of the UN Convention on the Rights of the Child (CRC), of which Korea is a state party. Furthermore, the Constitutional Court of Korea recognized the right to know as a basic right protected by the Constitution in one of its early court decisions and continues to maintain this position to this day.
Regarding adoption, the Act on Special Case Concerning Adoption (the Special Adoption Law) introduced adoption information disclosure in 2012, but the scope remains limited to such a degree that it’s hard to claim that this provision respects adoptees’ right to know. While Article 36 describes the procedures of disclosure, Article 13 of the Enforcement Decree of the Special Adoption Law prescribes the items of adoption information that may be disclosed. With the consent of the birth parents, an adoptee may obtain information on the birth parents’ names, date of their births, address, and contact at the time of adoption. This Article also provides the information that an adoptee is entitled to access without the birth parents consent, which includes the “adopted person’s name, registration number, address and the date of birth before adoption,” as well as “the name, address and contact information of the institution or adoption agency that the adopted child was protected from before adoption.” Access to any information beyond that specified which is in this Article, such as records of family members other than biological parents, siblings, foster parents, and other people related to the adoptee before adoption, remains unregulated. It can be argued that to protect adoptees’ right to know, the scope of information disclosure must exceed that which is currently prescribed in legislation.
The limited breadth of disclosure contributes to the challenges adoptees encounter in the search for their origins, but it’s only part of the problem. If we look at the statistics on information disclosure requests from the Ministry of Health and Welfare in 2018, it reveals that the rate of disclosure of biological parents’ information was around 17.2 percent, while the rate of non-disclosure came to 82.7 percent.
Looking at more recent data from the ministry, released in October 2020, there’s little difference from the previous table in terms of the total rate of disclosure, but the disaggregation of the data reveals that refusal by birth parents is 5 percent while another 5 percent have resulted in non-disclosure due to death. It should be noted that non-response does not mean refusal. Non-responses may have been for a variety of reasons, from something as simple as technical complications in the delivery of the disclosure request to logistical issues in the administrative system. Similar questions arise over “location cannot be confirmed.” Under the current family search system, there is no way to ascertain how birth parents were located, how many times they were contacted, what was said to them, or whether news of the adoptee was delivered to the birth parents. Instead, we are left to speculate as there’s no explanation or transparency regarding this matter. This uncertainty and lack of transparency make it difficult for adoptees to believe or trust in such a system.
Moreover, these problems raise broader questions about the enforcement of the law. If the achievement rate of any legal right is only 20 percent, then is that right being protected? In comparison, the disclosure rate under the Official Information Disclosure Act, which covers information from public institutions, is over 90 percent. Even in those cases where the request is denied, an appeal may be filed, and if this too is rejected, then the applicant may pursue an administrative appeal or administrative litigation, which allows for verification of the decision and process by a neutral third party. However, an appeal procedures process remains absent under the Special Adoption Law. In other words, once an adoptee’s request is denied, an appeal is not possible. If this process were to ever be established for adoptees, then neither the NCRC nor the adoption agencies should be regarded as a neutral third party. The fact that no such set of procedures are available to adoptees seems considerably harsh given the importance of their desire and right to know.
As is expected, information disclosure requests to private parties or institutions lack the same degree of transparency as that of a public institution. Moreover, from a legal standpoint, there are insufficient factors that would compel adoption agencies to actively respond to information disclosure requests. Furthermore, unlike the procedures of information disclosure requests for public organizations, which are clearer and more reliable, such requests made against private bodies are opaque with a low level of reliability. Accordingly, the Special Adoption Law raises conflict of interest issues.
Through its court decisions, the Constitutional Court of Korea has recognized that the “right to request disclosure of self-information,” which derives from the right to informational self-determination, is a basic right. Yet this protection does not seem to extend to adoptees. This may be attributed to the narrow view that birth parents’ information and adoptees’ information are mutually exclusive. However, such simplistic views ignore the fact that the realization of the right to origins rests on the right to disclosure, which itself should be approached in terms of the right to informational self-determination. Such an approach may lead to conflicts between an adoptee’s right to know and a birth parent’s right to privacy, but such incompatibility among individuals and groups is not unique, which is why courts exist to weigh and balance the interests of different parties. Therefore, despite the talk of wanting to help adoptees find their roots, rediscover their culture, and reunite with their birth parents, it cannot be said that Korea’s current legislation and legal mechanisms give adequate consideration to the rights and interests of adoptees.
Kang Te-ri is a Korean attorney at SALIM Law Office, where she specializes in litigation of domestic abuse, migrant and multicultural family issues, sexual harassment, and data protection and privacy rights.