Openness agreements and covenants are generally not legally binding, but they do provide an outline for the birth parents and adoptive family and are a basis for moral rights.. If problems arise, the birth parent has the right to discuss issues directly with the adoptive family. Sometimes the adoption agency may be able to offer support in sorting out any issues. As well, in some instances, birth families have been successful in asking the Ontario family court to assist in addressing concerns that arise with respect to openness agreements.
Birth parents in an open adoption have the responsibility to ensure that they honour their commitment to keep in touch with the adoptive family and provide the family with any ongoing information about their medical or social situation that might impact on their child and the openness relationship.
Birth parents in both open and closed adoptions do have an ongoing right to privacy, however. The birth parents have the right to feel secure in the knowledge that their identifying information will not be shared with anyone not explicitly included in the openness agreement or published in any document without their specific consent.
Even in the case of a closed adoption, however, the birth parents and adoptees both have the right to access post-adoption information after the adoptee’s 18th birthday, under the 2008 Access to Adoption Records Act. The adoptee may request the information immediately upon their 18th birthday; the birth parents must wait one additional year. The records made available include identifying information of all parties, birth names and adoptive names (if different) of the adoptee, medical and social profiles of the birth parents, and a copy of the original adoption order.
In the case of adoptions finalized before September 1, 2008, birth parents may still apply for a disclosure veto to prevent their records from being made available to the adoptee. Likewise the adoptee may have requested a disclosure veto to prevent information from flowing in the other direction. There is no veto option for adoptions finalized on or after September 1, 2008. There is, however, the option to apply for a No Contact Notice or Notice of Contact Preference. If a No-Contact Notice is requested, all information will still be available to the adoptee, but they will be prohibited by law from attempting to contact the birth parents. A Notice of Contact Preference, on the other hand, indicates that the adoptee is welcome to contact their birth parents but limits the channels by which that contact may be made (only by e-mail, for example).
In the case of adoptions finalized before September 1, 2008 and in which one party has filed for a disclosure veto, information may still be requested in the case of a medical emergency. This request is called a Severe Medical Search and is only granted in the case of a severe physical or mental illness suffered by a birth parent, adoptee or one of their direct descendants. A medical professional must complete a portion of the Severe Medical Search request warranting that disclosure of medical information could be of direct medical benefit in diagnosing or treating the condition.