What you need to know:
- The law is silent on how, when, where and why an adopted individual should seek information about their origin or biological identity.
- The quest to find your birth parents is personal and cannot be curtailed by anyone or law. Since you are no longer a child, Article 53 of the Constitution will not be the entry point of this journey, but Article 35.
- You have a right to access information held by the state, another person, which may be required for the exercise or protection of any right or fundamental freedom.
- The information you seek regarding adoption is held by the state and adoption agency.
I am an adult man and recently learnt that the parents I have been calling mum and dad adopted me. They have been very good to me, I must say, but something in me yearns to get to know my birth parents. I do not want to hurt my adoptive parents. Is there anything I can do legally to begin the search for my parents and, if possible, compel them to see me even for a few minutes?
The truth is liberating but sometimes difficult to process. The love for your adopted parents seems to hold you back from pursuing your ancestry. Your story is similar to Steve Jobs’, the co-founder of Apple Computers. He emphasised how his adopted parents were 100 per cent his real parents for the better time of his life. Steve Jobs’ take, similar to yours, confirms that adopted parents become real parents legally since one parenting couple diminishes or replaces the other’s parenting rights. The question you raise is difficult to many people, including drafters of the adoption law. However, it is an opportunity for emerging jurisprudence. The law is silent on how, when, where and why an adopted individual should seek information about their origin or biological identity. The quest to find your birth parents is personal and cannot be curtailed by anyone or law. Since you are no longer a child, Article 53 of the Constitution will not be the entry point of this journey, but Article 35. You have a right to access information held by the state, another person, which may be required for the exercise or protection of any right or fundamental freedom. The information you seek regarding adoption is held by the state and adoption agency.
The silence of the Kenyan law, in particular the Children’s Act of 2001, on this issue, behoves the employment of International legal instruments that Kenya has ratified, and on the strength of Article 2 (5) and 2 (6) of the Constitution contextualise your childhood rights in addressing this matter. In the case of DWT versus B N T & 3 Others of 2018, which was petition No. 46 of 2016, a decision by Justice J. M. Mativo, demonstrates Children adoptees’ right to know the identity of their parents, the parents’ origin, and the existence if any of their siblings. The Convention on the rights of the Child (CRC. 1989) obligates state parties to it, to 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. Moreover, the CRC states, where a child is illegally deprived of some or all the elements of his or her identity, State parties shall provide appropriate assistance and protection to re-establish his or her identity speedily. Article 30 of CRC strengthens your pursuit since it provides that competent authorities of a contracting state shall ensure that information held by them concerning a child’s origin, particularly which relates to the identity of their parents, including medical history, be preserved. Should there arise an inquiry by the child or their representative regarding the aforementioned concerns, the state must permit access to such information under the appropriate law.
The best interest of the child
As we transverse your childhood rights, it is stated that every action, decision, or program that is made regarding any child, must be done in their best interest. At this point, we advise that Article 53 (2) of the Constitution takes effect for your best interest, having demonstrated how CRC gives you the right to find information about biological parents. The state in these afore-described circumstances must afford you the necessary support. Possible actions are as follows: first, the information you seek is held by the adoption agency that transacted change of parentage. Such information is likely held by your adopted parents. A conversation is necessary for you to identify this agency: second, your adopted parents may likely know your biological parents since the circumstances occasioning your adoption remains mysterious. A conversation again is necessary, although this could be the most painful interaction between you and them. Third, the information you learn about your biological parents may not guarantee access to them since the adoption agreement relinquished their rights over you. Should it be that your adoption is out of a scenario of abandonment, and biological parents remain unknown, your investigative journey would terminate at this point. Should you be lucky and find their contact, and personal efforts to reach and meet them remain unsuccessful, you may move the court for an injunction for them to see you. Such an application is also not a guarantee to access them unless the court finds merit in it.
As you go about this endeavour, recall what Barak Obama, former President to the US, once said, “what makes a man is not the ability to make a child, it’s the courage to raise one”. Be ready for disappointment, even as you gather strength for celebration.
Mr Mukoya is a lawyer with over 17 years of experience. He's the Executive Director, Legal Resources Foundation. Legal query? E-mail DN2Parenting@ke.nationmedia.com