Rethinking Adoption Paradigms: How the ECtHR’s Judgment on the Mitrevska Case Highlights the Rights of Adult Adoptees
By Vivian J. Salles Vieira Pinto
Introduction
The case of Mitrevska v. North Macedonia, judged by the European Court of Human Rights (ECtHR/Court) in 2024, contributes significantly to the field of adoption law. The case arose from allegations that domestic authorities had failed to ensure the applicant’s right to private life by denying access to information concerning her biological family and childhood, as her adoption was automatically deemed an “official secret”. The Court found a violation of Article 8 of the European Convention on Human Rights (ECHR/Convention) and emphasised the importance of properly identifying and balancing competing rights in cases of adoption.
The ECtHR previously addressed adult adoptees’ access to information in cases such as Odièvre v. France (2003) or Godelli v. Italy (2012), where non-identifying information was crucial in circumstances of anonymous birth. At first glance, Mitrevska seems similar to previous case-law, putting access to biological information of adult adoptees under the spotlight. However, a more in-depth analysis of the case reveals broader implications for adoption law and procedural guarantees that are noteworthy. Mitrevska demonstrates, in practice, the importance of access to medical information for adult adoptees particularly in situations where medical information is required for proper diagnosis and treatment of hereditary diseases. This judgment stands out as it could result in at least two valuable paradigm shifts in the field of adoption law: a) a broader conceptualisation of adoptees’ right to know, encompassing a comprehensive right to health, and b) the absence of a presumption of anonymity in adoption procedures. In other words, on the basis of Mitrevska, it can be argued that the right to know of adoptees implies a wider range of medical information pertaining to the biological family and States should actively work towards identifying interests at stake in relationships shaped by adoption, rather than simply adopting a blanket approach that uses anonymity as a standard practice. This post explores how Mitrevska impacts adult adoptees’ rights, particularly in terms of access to biological information and discusses some practical implications.
Summary of the Case
The case concerned the inability of the applicant, who was adopted as a child, to obtain information related to her biological origins and medical information of family members, based on Article 8 of the ECHR (the right to respect for private and family life). The applicant faced medical issues for which her biological family’s medical history was requested by physicians. This information could assist in establishing whether her medical concerns were associated with hereditary disorders. Besides these medical implications, the applicant also motivated her search based on the impact that a lack of information had had on her emotional and psychological development as an adoptee. The information request was denied by North Macedonian authorities due to privacy concerns, as the adoption was deemed "an official secret" under North Macedonian law, which impeded the disclosure of any information related to a completed adoption. In its judgment, the Court clarified that Article 8 reflects not only States’ negative obligations of unlawful interference with private life, but also a positive obligation to support and effectively respect such a right (para. 45). The right to discover the truth about aspects of personal identity – including parentage and medical information - fall within the scope of the private life sphere. However, even though adoption-related issues remain at States’ discretion, the Court determined in Mitrevska that the domestic authorities had failed to strike a balance between the competing interests at stake, exceeding the margin of appreciation afforded to them (para. 58). The Court concluded that the domestic authorities had made no attempt to properly balance competing rights, as they had automatically labeled the adoption as an “official secret: under Section 123-a of North Macedonian’s Family Act without identifying the interests of biological parents regarding privacy (para. 53). Additionally, such a law did not account for the possibility of obtaining non-identifying information concerning one’s biological parents, which contradicts previous decisions made by the Court.
Access to Information v. Anonymity
Previous cases like Odièvre v. France (2003) or Godelli v. Italy (2012) have explored similar tensions between the privacy of biological parents and adoptees’ access to information, by addressing access to information in cases of anonymous birth practices, that involves a delicate balancing exercise between competing rights (see here on Contact Veto Provisions). Currently, the critical balance of access to information and the preservation of the anonymity of biological parents is an issue at the discretion of individual States, which is primarily governed by domestic law. Nonetheless, the Mitrevska judgment, in my opinion, has added at least two notable elements to the international legal framework governing adoption that may be overlooked at a first glance. Firstly, this case demonstrates that adoption does not necessarily imply lack of access to information or anonymity. Secondly, States must actively work to ascertain the biological parents’ wishes concerning confidentiality. In other words, one should not simply presume that adoption automatically begets a secretive or anonymous status. Rather, it is an active duty to ascertain whether the applicant’s biological parents had expressed a wish for the adoption to be or remain confidential.
Duty to Identify (Competing?) Interests
The idea of non-implied anonymity sheds light on an important duty on States when mediating adoption: it is of utmost importance to identify competing interests (paras 53 and 57) in adoption relationships since they may not be “competing” at all. A basic conclusion that is often overlooked is that there is a possibility that such interests, both of biological parents and adoptees, are not contrasting interests, either in full or partially. Research has shown that there are biological parents who do not wish for anonymity and that openness in adoption could have positive effects both from the perspective of biological mothers and adoptees. For instance, this openness in information may support in coping with potential feelings of grief. Additionally, rather than framing access to information as an all-or-nothing issue, one could also think of varied degrees or layers of privacy and the flexibility that this may imply. As an example, cases where sharing non-identifying information reflects a different degree of privacy when compared with full anonymous birth practices. Nevertheless, the term "could" is employed in this context to avoid the generalisation of such a statement as there may be biological parents who continue to prefer anonymity and do not wish to relinquish it. Regardless of the balancing of rights (privacy v. access to information) and which right is to prevail, a central point is that the State is obligated to identify the interests of both the biological parents and the adoptee, instead of adopting a simple presumption of anonymity.
The Right to Know of Adoptees and the Comprehensive Right to Health
Secondly, the case highlights, in practice, the critical role that access to family medical history plays in diagnosing hereditary conditions and how access to health-related information may be a comprehensive right. In this way, Mitrevska aligns with broader human rights standards regarding the right to health and the role of medical history in supporting this right. The UN Special Rapporteur on the right to health explains that this right is an inclusive right, which encompasses not only timely and appropriate health care, but also the underlying determinants of health (including proper access to health-related information, which is a topic of concern according to Mitrevska). The International Covenant on Economic, Social and Cultural Rights (ICESCR) ensures, under Article 12, the enjoyment of the highest attainable standard of physical and mental health, which highlights the importance of not only considering the physical, but also the healthy mental development of adoptees, in which access to biological information may play a big role. Within the international legal landscape, the Hague Convention on Intercountry Adoption (HCIA) also mentions a duty of preservation of medical history under Article 30, but it does not further elaborate on this issue. Lastly, in relation to children, Articles 3 and 24 of the Convention on the Rights of the Child (CRC) emphasises the principle of the best interest of the child, along with a broad right to health which comprehends access to highest attainable standard of health and preventive health care.
In Mitrevska, we see that the right to know of adult adoptees under Article 8 of the ECHR is further enhanced within the context of adoption. In paragraph 41 of the judgment, the Court considered that ‘information concerning her adoption and biological origins, including information about the identity of her biological parents, their health, the reasons for her adoption, and her childhood before her adoption’ concerned the right to a private life under Article 8 of ECHR. Throughout the judgment, the Court expressly referred to the right to know as including the information on the applicant’s family medical history. It is noteworthy that this case law referred to a broad notion of medical history, including not only the medical history of the adoptees themselves, but also medical information about their biological family members. In other words, medical data of biological family is mentioned as a broad term and as a relevant component of the adoptees’ right to know with practical consequences: it allows for a proper diagnosis and medical treatment.
Mitrevska qualifies as a singificant contribution to the on-going discussion on vagueness and conceptualisation of the right to know of adoptees. Additionally, the case reinforces how access to health is a multi-layered right, comprehending not only access to medical care, but also access to information that may allow for proper diagnosis or even preventive health care. Notably, the Court found that North Macedonia’s failure to consider the rights of an adult adoptee, including the right to health, was incompatible with the standards of the ECHR. This reflects a new approach in adoption-related cases as the discourses around adoptees and adoption law are often children-focused, infantilising adult adoptees.
Conclusion
Mitrevska adds important layers to our understanding of adoptee’s right to know/access to information. By clarifying that there is no presumption of anonymity, the Court strengthened States’ active duty to properly identify the agents and their interests within an adoption relationship. Additionally, the case also highlights the impact of access to family medical history for diagnosis and treatment. It shows in practice that the right to health goes beyond just timely and appropriate health care by also encompassing underlying determinants of health, such as the proper access to health information. This case may foster particular legislative and policy changes regarding adoptees’ rights, especially in the respondent State, North Macedonia, by triggering a review of adoption practices that automatically begets anonymity and laws on adoption secrecy which do not allow the disclosure of any type of information. Additionally, it may encourage other States to revisit their own frameworks to ensure compliance with the standards of the Convention. In practice, this could mean avoiding automatic secrecy and allowing for more flexible measures that properly identifies and accommodates the interests of biological parents and adoptees. Finally, this case may also indicate an active duty from States to properly collect and preserve comprehensive information regarding the biological family’s medical history, as medical information seems to be conceptually integral to the core of the right to know of adoptees under Article 8 of the ECHR.
Bio:
Vivian J. Salles Vieira Pinto is an academic docent at Maastricht University (UM), holding a master's in law from the same institution, funded by the OTS merit-based scholarship. Her expertise lies in diverse fields of law, including conflict resolution and access to justice. Currently, she is a member of the Maastricht European Private Law Institute (MEPLI) and is conducting PhD research focusing on the Rights of Adoptees and Family Privacy.
Tags : adoption, right to privacy, right to know, family law