Concealed Births, Adoption and Human Rights Law: Being Wary of Seeking to Open Windows into People's Souls

Abstract

Although rare, giving birth in secret or in concealed circumstances still happens in the United Kingdom. The new born child’s existence is unknown to his or her biological 'father' and or to the wider biological family of the birth giver who wishes to place the child for adoption without his or her existence being revealed to them. Legal decisions need to be made judicially when a local authority seeks orders as to whether it is required to make further inquiries to identify and notify the biological father and or wider biological family as to any forthcoming adoption proceedings. Developments in European human rights law’s protection of a right to respect one’s private life provided by Article 8 of the European Convention on Human Rights (ECHR) towards a right to personal autonomy, identity and integrity can be interpreted in different ways. However, three positions are argued here to guard against an erosion of women’s confidentiality and privacy in these circumstances. First, women’s choices of concealment should be accepted with respect rather than perceived as inauthentic and therefore impermissible; this is in keeping with Article 2’s right to life and Article 8’s right to personal autonomy and integrity. Second, the right to family life protected by Article 8 of any wider biological family and father is not contravened by allowing women to give birth discreetly. Third, openness and transparency, when it comes to exact knowledge of one’s parents in this context is not necessary for a child’s identity rights, which are also protected by Article 8’s right to personal identity, to be legally protected.