It’s time to amend the Special Adoption Law and its regulations again in order to improve birthfamily search!
TRACK, KoRoot, G.O.A’L., the GongGam Human Rights Law Foundation, ASK, MP Choi Dong-ik, (Democratic Party),and MP Shin Kyeong-rim (Saenuri Party) are coming together to strengthen birthfamily search for all adoptees who want to exercise their right to identity.
Since adoptees amended the Special Adoption Law in 2011 (implemented August 2012), we have been monitoring birthfamily search services offered by KAS and the agencies. We have not been pleased.
Therefore, we have amassed three years of observations and our suggestions for improvements. We appreciate all the help we have gotten from adoptees in Korea and abroad, who have generously shared their experiences for the purposes of monitoring and reporting.
Please come to a forum about this topic. The exact schedule with the names of the speakers will be added here once they are all confirmed.
To get there: Take Line 9 to the National Assembly subway station. Get out at exit 6. Turn around once you get up the escalator and go into the National Assembly complex. Go into the square building to the left of the main gate — NOT the green rotunda building. It is called the National Assembly Members’ Hall, but you won’t see it in English. Look for it in Korean as 국회의원 회관. Once you get inside, you have to fill out a form and show your ID, and also pass through security. So leave some extra time. Once you pass security, go up the escalator to Small Meeting Room #2.
Please post widely.
Admission is of course free, but once again, REMEMBER YOUR ID!
My position paper is below:
Position paper on the Special Adoption Law
Information compiled by Jane Jeong Trenka (TRACK)
The objectives of the amendment to SAL
When overseas Korean adoptees participated in the process to revise the Special Adoption Law (amended in 2011 and enforced in 2012), we had two main objectives. They were:
- A) to ensure that unwed mothers, the source of 90% of adoptees in recent years, would have a fair chance to raise their children by increasing the transparency of the adoption process and
- B) to strengthen the adoptees’ human right to know their origins and identity by making records related to their adoption accessible to them at the age of majority.
Three years later, the first objective seems to have been somewhat accomplished. However, regarding birthfamily search, the law has been a failure. This is especially disappointing since it is the only part of the law that deals with the adult adoptees who helped to change it.
The content of the law related to birthfamily search aimed to create:
1) Completely open birth records for people adopted since August 2012, both overseas and domestic, at the age of majority and
2) Regulated birthfamily search services for all adoptees, including people who were adopted prior to the 2012 enforcement of the amended Special Adoption Law.
The amendment was meant to give adult adoptees adopted prior to 2012, many of whom lacked original birth registrations, the right to view their whole adoption file related to their own history — with the exception of their birthparents’ identifying information such as name and citizen ID number, which could be given to the adoptee only after consent was first obtained from the birthparent. We felt that this law was quite moderate and not even as progressive as it could be with regard to adoptees’ human right to identity.
1) Completely open birth records for people adopted since August 2012
Open records (the right to access one’s original birth registration) was legislated keeping in mind South Korea’s human rights treaty obligations as stated in the United Nations Convention on the Rights of the Child, the United Nations Convention on Civil and Political Rights, and the United Nations Convention on the Rights of Persons with Disabilities. All of these conventions recognize birth registration as a human right, while the Convention on the Rights of the Child particularly points out the child’s right to identity.
This system of open records for people adopted from 2012 seems to be administratively successful and will likely remain so unless:
- a) The law is overturned
- b) Children illegally abandoned through anonymous mechanisms such as the “Babybox” in Gwanakgu are sent for adoption under more or less fabricated birth registrations created for abandoned children (미아), and such cases become not the exception as they are now, but rather the rule, as in the past, or
- c) The Family Registration Law is amended to block adoptees from accessing their original birth registrations.
2) Standardized birthfamily search services for all adoptees
The second part of the content related to birthfamily search was created keeping in mind the experiences of the adoptees who had returned to South Korea to search for their families of origin. On an individual basis, some adoptees had experienced very good service with their adoption agencies, and other adoptees had experienced very bad service. We adoptees realized that the social workers’ discretionary power was too wide, e.g., no part of the birthfamily search was legal or illegal; how it was done completely depended on the adoption agency social worker and her relationship with the adoptee, or the adoptee’s relationship with a middleman with ties to the adoption agencies or other Koreans in positions in power. Of course, this was unfair and disadvantaged adoptees whose social workers personally did not like them, or adoptees who had no connections to powerful people. We therefore aimed to standardize, regulate, and set forth guidelines with the goal of making birthfamily search fair and accessible to all adoptees.
The adoptees pinned their hopes on Korea Adoption Services (KAS), which was established by the amendment as a semi-governmental organization. Although it was set to perform other functions as well, KAS’s most important function for adult adoptees was to provide a central, one-stop service for fair and accessible birthfamily search. Unfortunately, KAS has failed to meet our expectations over the past three years.
While some problems in birthfamily search may arise from a lack of budget, lack of manpower, lack of authority, or conflict with other laws (as stated in the past by KAS, the Ministry of Health and Welfare, and the agencies), we find that some others seem to arise from a deliberate misinterpretation of the law by KAS and the agencies. For this reason, we feel it is necessary to revise the SAL again in order to eliminate any room for misinterpretation that leads to practices that victimize adoptees.
While the meaning of some of the clauses in the 2011 revision are disputed, the spirit of the law can be clearly seen if it is kept in mind that we adoptees participated in the revision of the law on our own behalf. In other words, any disputed clauses in the law should be interpreted from the viewpoint of the people most affected — the adoptees. We do not view birthfamily search as a charity or a courtesy. Nor do we view it as a way to keep adoption agency workers employed and agencies in business. Rather, we view it as an integral part of our human right to identity.
In order to show the necessity of revising the SAL again, we adoptees have gathered some cases from within our community. Just as the first time we revised the SAL, we found a pattern of behavior by the adoption agencies and KAS that disadvantages adoptees. This behavior is not random; it has been monitored and reported throughout our community since 2012 until the present. We have actively tried to work with KAS and the Ministry of Health and Welfare since 2012 for the full implementation of the SAL. Some problems we have pointed out over the past three years have been addressed to some degree. These include stiffening penalties for agencies that violate the SAL in matters such as the domestic adoption first policy, and some fixes on the practical/budgetary level of birthfamily search, such as hiring more employees. However, the SAL and its accompanying regulations still need to be addressed in order to strengthen birthfamily search.
While there are numerous problems in the SAL covering various topics that still need to be addressed, such as issues related to adoptees’ dual citizenship and issues of child relinquishment, this paper is restricted to pointing out the problems in birthfamily search. Adoptees’ voices are particularly important to hear on this topic, as no lawmaker has put forth any proposal to amend the SAL over this issue — even though there have been numerous proposals by many lawmakers to amend the SAL over other issues. In addition, the Ministry of Health has made efforts to improve current adoptions, which have been well covered by the mass media. However, it seems that the only people who care about the welfare of the adoptees who already exist are the adoptees themselves.
The points I mention are listed in an effort to improve the mechanisms of birthfamily search services for people adopted before August 2012. I hope this paper is helpful in helping the agencies, and especially KAS, to institutionally change their processes in order to ethically uphold adoptees’ rights throughout their lifetime adoption experience. The points are as follows:
Current problems with birthfamily search
- Disagreement about who this law applies to: Adoptees are being told that the law is not retroactive, and therefore post-adoption services do not apply to adoptees adopted before 2012.
We believe that this law applies to all adoptees adopted under the Special Adoption Law, i.e., we believe this law applies to us.
- Full disclosure without parental consent is impossible: Our intention in Chapter 5 Article 36 was to allow adoptees to receive the identifying information of their birthparents without birthparent permission if 1) the birthparent is dead 2) or cannot give consent because they cannot be found, or 3) if the adoptee has a medical reason (Article 13 of the Enforcement Decree, amended by Presidential Decree). However, adoptees are hearing from their agencies and KAS that:
- The birthparent must be simultaneously confirmed dead, not able to be found, and the adoptee must have an illness — all at the same time — in order for them to get their information.
- Since there is no list of illnesses which may be used as reasons for the full disclosure of identifying information of the birthparents, agencies and KAS have interpreted this to mean that there is no illness which may qualify the adoptee to receive full information without the permission of the birthparent, although KAS informed one adoptee through an email that she could get the information of her unfindable birthparents if she also had a “life-threatening” illness.
We believe that this is unreasonable, and this was certainly not our intention when we amended the law on behalf of ourselves. We believe that the adoptee should be able to receive their personal information if only one of the three criteria is met.
- Anything that is not specifically stated in the law as a legal obligation for birthfamily search is either ignored or interpreted as “illegal.” In addition to the list of illnesses which does not exist, SAL Chapter 5 only mentions birthparents as people for whom adoptees may search. While agencies formerly searched for extended family members, foster parents, and others from the adoptee’s past, the agencies are now saying that they cannot search for anyone other than the birthparents. This situation is continually reported by adoptees, even though the Adoption Working Manual, written by KAS and the Ministry of Health and Welfare following the 2012 law revision, states that these other people may be found as part of the birthfamily search.
We believe that birthfamily search should include foster parents and others important to the adoptee’s past, as already stated in the Adoption Working Manual. In addition, we believe that birthparents have the right to search for adoptees through mediation, especially in light of the fact that many adoptions were facilitated without the knowledge or consent of the birthmother and sometimes birthfather.
- Adoption agencies refuse to give KAS even non-identifying information: This is reported both by KAS and adoptees who were able to get more information from their agencies than KAS in several cases. Agencies are somehow able to tell elaborate stories over email, etc. to adoptees about the circumstances of their adoption, yet they release no paperwork to the adoptee that would actually verify these stories. This is especially confusing when the same adoptee gets several different stories over the years of searching. In addition, adoptees are being denied intake information written in Korean. Rather, they are offered a redacted version in English.
We believe that the agency should be compelled to release to every searching adoptee the full information of their biological parents, including the information written in the Korean language, with the exception of the parents’ identifying information. We believe that this is an extremely moderate and standard approach.
- There are no guidelines if the following situations occur:
- If several telegrams have been sent and there is no answer, there is no process or deadline for declaring when the parent is officially unable to be found, which would give the adoptee the right to access all information. Currently, a non-response from the birthparent is interpreted as meaning the parent does not want to disclose information.
We believe that a non-response should mean that a parent implies consent. In other words, if the adoption agencies and KAS do not want to reunite an adoptee with his or her birthparents, it should be the responsibility of KAS and the agency to find the birthparents and obtain their official, explicit negative response.
- If the adoptee finds the alleged birthparent on the records, but it turns out that the DNA test is negative, we believe that this is a case in which the adoptee was likely switched with another child.
We believe that birth parents shall be allowed to voluntarily give their own DNA sample to be matched with the adoptee’s DNA before meeting, which would allow both parties to avoid emotional trauma if it is not a match. Ideally, a central DNA bank should be constructed that matches people in the same way that 23andMe can match people.
- If the agency says that the name and ID were found to be false. The adoptee is still being barred from getting this false information.
We believe that if the information is really false, it should be no problem for the adoptee to have it.
- If the parent is found to be dead: The adoptee should be connected with other family members, but the agencies and KAS are not doing this. They only say that the parent is dead.
We believe that birthfamily search should be expanded so that the adoptee may have a chance to connect with biological family even if the parents have passed away. This would also give the adoptee a chance to visit the parent’s grave.
- There is an alleged conflict with privacy laws: The agencies and KAS are saying that they can only use addresses for birthfamily search, not phone numbers, because of conflict with laws regarding privacy.
We believe that the adoptee should not be regarded by privacy laws as a complete stranger with no relationship to their biological parents.
- There is a lack of follow-up:
- Lack of coordination among Korean and foreign adoption agencies, KAS, and the police.
- Even if birthparents can be located quickly and the search has gone well, KAS and the adoption agencies seem to not communicate with each other. For instance, an adoptee who applies through KAS may be contacted by the adoption agency directly. In the best case scenario, this only confuses who is the person in charge of the search and cannot help the keeping of statistics. In another scenario, the adoptee is not informed about the progress of their search by either their agency or KAS. In the worst case scenario, the search is never started by either KAS or the adoption agency, as neither one is ultimately responsible, or a DNA result is not reported to the adoptee.
- Finally, foreign adoption agency partners are charging adoptees large sums of money to adoptees for birthfamily search. These services, such as contacting the Korean adoption agency or KAS, are free if the adoptee contacts the Korean agency directly. The foreign partners are actually the first logical and natural contact point for foreign adoptees, so adoptees should be advised of their rights correctly by foreign agencies.
- Lack of followup within the same agency: There are numerous cases where birthfamily search that is being handled solely by one agency or soley by KAS has lacked followup. For instance, a potential birthparent might be found, but the social worker forgets to contact the adoptee.
We believe that there is a conflict of interest in the adoption agencies managing post-adoption services for adult adoptees because as new adoptions of babies decrease, the funds for post-adoptions services departments also decrease. We therefore believe that post-adoption services should be handled by KAS rather than the adoption agencies. Furthermore, we believe that adoptees have the right to coordinated services from competent workers.
- Agencies are misinforming adoptees about the SAL. Agencies are saying that before the SAL was amended, they could give the adoptee all information about their birthparents, but because the SAL was amended, they can no longer do that. Adoptees are confused by this because agencies insinuate that they cannot do birthfamily search at all because of the SAL. While it is correct that the agency can no longer outright give the identifying information of the parent to the adoptee, the agencies are failing to say that it is now their responsibility to locate the parent first in order to ask for their permission, and then inform the adoptee whether the parent agrees to reunion or not. In addition, it has also been reported that one adoption agency is misinforming adoptees that the reason why the SAL was amended was because one adoptee got the information of his birthparents and murdered them, insinuating that all adoptees are potential murderers who must be stopped.
We believe that the social workers at agencies have too much personal discretion and can create emotional trauma and confusion for adoptees by misinforming them about the law. This is another reason why we are distrustful of adoption agencies managing post-adoption services. We believe that KAS should correctly inform adoptees of their rights under the SAL, and of course we as civil society organizations working within our own community are willing to help with this.
- There are no physical records: According to Article 25.2 of the Enforcement Rule of the Special Adoption Act (amended August 3, 2012 and enforced August 5, 2012), the adoption agency has to transfer the records to Korea Adoption Services when they close their business.
- It is unclear what happens in the case of Korea Social Service. Its international adoption business is now closed, but they still have other operations. In any case, the records are not at KAS. In the case of Holt, Eastern, and SWS, it is possible that they may also someday shut down their international adoption business, but never shut down their entire business. Therefore, the physical records would never move to KAS.
- Although it was reported in the media that they will get the records of closed agencies and orphanages, KAS has refused to give a list of the relevant agencies and orphanages so far.
We believe that all (physical and electronic) records of adoption processed by adoption agencies should be collected and managed by KAS, no matter what the state of their business is. We also believe that the adoptee has the right to know who is in possession of their personal information. Therefore, KAS should publicly disclose which records it possesses, and orphanages, city halls, and other places that have been part of the adoptee’s adoption process should be compelled to give the adoptee their information.
- The method of contacting birthparents is ineffective: Although KAS must respond to the adoptee’s request in 15 days and may extend for another 15 days, they are not forced to bring a result within this timeframe. They just keep extending the period for search and sometimes it seems that they drop the search altogether. According to information offered by KAS for the 2015 National Audit, from 2012-2015, the best 47 cases were handled in 15 days or less, but the worst 50 cases ranged from 201 to 807 days.
A main problem is that agencies and KAS are using “telegrams” and registered mail to contact birthparents. However, according to information from the 2015 National Audit, KAS reported that from 2012-2015, there were 1,592 cases where a letter or telegram was sent to a birthparent, but there was no reply. On the other hand, in 2014, there were only 47 people out of 813 contacted who gave an active “no” response, and only 40 such active “no” responses were given out of 578 people contacted from January to August 2015. In other words, there are far more non-responses than either positive or negative responses. The adoptees think that is problematic, with details as follows:
- One case that has been monitored since 2012 is in 2015 still in the stage of waiting for an answer to a telegram after recently renewed requests by the adoptee. KAS completely dropped the case at one point for about a year when the adoptee did not have energy to pursue the case any longer.
- Another adoptee said her agency first sent a telegram to her potential birthmother in August/September 2013. Although a family member apparently signed for it, there was no contact from the birthmother. Therefore it is not certain whether the birthmother actually saw the telegram or not. The social worker said she would send a second telegram in Fall 2015. Two telegrams over a year-and-a-half are not enough; we cannot even verify if the birthmother received it from the family member who signed for it.
- These are the logical problems with using a telegram:
- How do they know that they left the telegram at the right door if there is no signature required?
- KAS and the agencies are sending messages to birthparents that don’t make sense. For example, one telegram was sent that read: “Foreign name of adoptee wants to thank you for saving her life.” The mother does not know this name and moreover, she has never saved anyone’s life. Why would anyone answer that? It seems like junk mail.
We believe that a standardized letter and form should be used for birthparents to indicate consent or disconsent to the disclosure of information.
- There is no way to confirm that these “telegrams” were even sent.
We believe that in cases where the birthparent cannot be contacted, KAS or the adoption agency should show receipts or records to the adoptee in order to prove that they have actually tried by doing this work.
- In many cases, the person contacted is not the biological parent anyway. Only a DNA test can tell if the parent and adoptee are truly matches. If the person does not respond to the passive request, there is no way to know whether the right person was contacted or not in the first place.
We believe that potential matches should be offered support for DNA testing even if they do not believe that they are the parent of the searching adoptee. That would at least give the adoptee peace of mind knowing that the right person has been found.
- The Adoption Working Manual gives different guidelines for contacting mothers who were unmarried at the time of the adoption vs. mothers who were married at the time of adoption. It says that mothers who were married may be contacted directly, but mothers who were unmarried should be contacted through “people around” the mother. There is nothing in the law that gives different standards for contacting mothers. In addition, if we follow the logic that the unwed mother gives birth secretly because of shame and other people don’t know about the child, then there’s no reason to contact “people around” the mother. In that case, it seems especially important that the mother is contacted directly in order to keep her privacy.
We believe that parents of adoptees should be contacted directly and personally to protect their privacy and safety, regardless of their past or current marital status.
- Only some adoptees are being offered this chance by KAS or their agencies to send a letter to their birthparent.
We believe that every adoptee should have the right to send a letter to the person being contacted in order to say what they want to the birthparent, including the reason why they want to meet.
- Social work involves talking with people and counseling them. There is no counseling happening now with birthfamilies. In the case of the Philippines, birthfamily members receive counseling before reunion. Therefore, even men who married women who sent children away for adoption before marriage can understand and accept the adoptee. This is important so adoptees do not have to be family secrets.
We believe that KAS workers should actively try to contact parents and offer them counseling so they understand the importance of birthfamily search to the adoptee and also the adoptee’s human right to identity. Birthparents should also be supported by social workers to help reincorporate the adoptee into the family.
- If the birthparent cannot be reached by telegram or phone, we suggest that someone go there in person to find the family member. Cooperation with local authorities could be used if the agencies and KAS cannot do this.
We believe that after a reasonable amount of time after an application, a non-response should be interpreted as permission for the adoptee to access their full information. If KAS and the adoption agencies would like to absolutely verify whether or not the parent would like to give the information, then we believe it is the responsibility of KAS and the adoption agencies to actively work to find the parents, not just passively send telegrams.
- The adoption agencies and KAS are not proactive enough in the birthfamily search. In the past, we adoptees have observed that if identifying information of birthparents was not readily and immediately available, the workers just give up and suggest going on TV. We have continually asked for a more service-oriented approach and more assistance from KAS and the agencies because it’s hard for adoptees to become detectives themselves, especially with the problem of travel, the language barrier, and so forth. This begs the questions, “What kind of efforts have been put forth by KAS for birthfamily search? How hard have they tried?”
We believe that the agencies and KAS should more actively search for documents in the locations where adoptees originated, including not only unwed mothers’ homes and high schools, but also city halls, orphanages, clinics, hospitals, etc.
The head of KAS, Shin Eon-hang, said in his national audit testimony to the National Assembly’s Health and Welfare Committee on Sept. 11, 2015, that it takes an average of 86 days to find birthmothers because the KAS employees are going to high schools and unwed mothers’ homes to find their information. Shin Eon-hang’s testimony is below:
We also fully understand this regrettable situation. In order to find a birthmother, we got one birthmother’s personal data by going to an unwed mothers’ facility and a high school, and we looked for all her footprints fully and checked that it was the same person and also checked the address. It takes this kind of effort. When you view it like this, the reality is that it takes an average of 86 days, which is a problem.
However, when KAS was asked to submit records about this search activity that involves leaving the office, it was found that this kind of activity was conducted by a KAS post-adoption services employee only once in the past three years. Only once — for one adoptee. The employee went to an unwed mother’s home on Sept 9, 2015 and a high school on the on September 10 in order to find the citizen ID number of an adoptee’s birthmother. The search was successful and resulted in registered mail being sent to the mother only 33 days after the adoptee applied to KAS for birthfamily search. The adoptee had applied to KAS on August 27, 2015, and the worker contacted the unwed mother’s home only two days after receiving the basic information from the adoption agency, which took about one week.
In other words, birthfamily searches are possible to do quite quickly, and it is possible for KAS employees to carry out this work. However, the fact that this was done only once in three years for only one out of the 4,790 adoptees who have applied to KAS since its inception is unconscionable, and it does not escape our attention that this happened to be done the day before the head of KAS was scheduled to testify at a National Assembly audit. The other searching activity that required KAS workers to leave the office, according to their own records, consisted mostly of going to the local government office located nearest to the KAS office.
The right to search for birthfamily must be upheld if we agree with the human right to identity. Adoptees should be able to access sufficient post-adoption services so they can know that everything possible will be done for their birthfamily search. To this end, the adoptees themselves were instrumental in creating KAS through the Special Adoption Law. However, KAS has failed us in terms of social work, services, accountability, and transparency.
As part of an array of social work services related to adoption, contact with birthfamilies and support for searching adult adoptees takes personal care that should be handled by qualified social worker. And as a semi-governmental agency, KAS should be as transparent as other public agencies and should be accountable not only to the adoptees, but also the adoptees’ birthfamily members, who are Korean taxpayers.
As a public agency, KAS should be held accountable for its practices in the same way that other public agencies are held accountable. As a start, KAS should have to manage its Website in a way that allows applicants to track the progress of their cases. In addition, while still protecting the applicant’s privacy, the public should also be able to see how well KAS is doing by using anonymously tracking the time elapsed on each case.
Because KAS has not been able to meet our expectations under the existing Special Adoption Law, we now find it urgently necessary to amend the law and its regulations in order to bring KAS’s birthfamily search services up to an acceptable standard.