Adoption Legislation Primer (a must read!)

Special Guest Blog by Romany

HISTORY

Most sealed records legislation dates from the 1930s – 1950s.  At that time, birth certificates were public record, meaning that anyone could get a copy of anyone else’s birth certificate.  Court adoption documents were also public record.  Back then, adoption legislation allowed the state to seal original birth certificates once an amended birth certificate had been issued.  Court records of adoption were also sealed by state law.  In many states, the sealing did not initially prevent the parties to the adoption (parents, adoptive parents, and adoptee) from accessing records after they were sealed.  Eventually, however, even the parties to the adoption were prevented from accessing the records.

In many states, there have been ongoing attempts to restore access, some stretching back 20 to 30 years.  Most recently, access legislation that HAS passed has been through the efforts of a state senator or state assemblymember who is an adoptee.  This has happened in New Hampshire, Maine and Illinois.

THE OPPOSITION & THEIR POSITION:

The primary argument from the opposition is that relinquishing parents have an expectation of privacy that the state is morally (and/or legally) bound to protect.  The corollary argument is that without state-guaranteed protection of their privacy, some unknown number of women in a “crisis pregnancy” would choose to abort rather than place for adoption.

The opposition generally consists of some very strange bedfellows:

o        The National Council for Adoption (lobbying group for certain adoption agencies)

o        The Catholic Church (through each state’s Catholic Conferences of Bishops)

o        Some ACLU chapters

o        Some Planned Parenthood chapters

o        Some Right-To-Life organizations (RTL)

While RTL organizations tend to push the abortion angle, some Planned Parenthood chapters consider adoption a “reproductive choice” deserving of the same protection of anonymity as abortion.  ACLU chapters push the “expectation of privacy” with or without “reproductive choice”.

SO WHAT’S WRONG WITH THE “ABORTION ARGUMENT”?

Plenty.  The original hue and cry was how “abortion rates will skyrocket” if access legislation is passed.  We now have up to ten years of history in states that have restored access.  Abortion statistics from those states have shown NO uptick in abortion rates. 

There is also a survey by the Guttmacher Institute (“Concern for Current and Future Children”) that indicates at least SOME women choose abortion over adoption BECAUSE sealed records would not allow them to know what happened to the child they relinquished.

The arguments from RTL are now centered on a woman’s ability to choose a closed adoption rather than visions of the wholesale slaughter of innocents.  Even in a diminished capacity, this argument still holds sway with pro-life legislators.  We are now being asked to effectively guarantee that no woman will ever have an abortion because of access legislation.

THE “EXPECTATION OF PRIVACY” ARGUMENT

The gist of this is that some unknown number of parents were promised or BELIEVED that they were promised anonymity/confidentiality/privacy in that their identities would never ever be released to anyone.  For a long time, this myth was repeated in a vacuum.  The only real “evidence” anyone had was that a state law sealed records.  Everything else was based on the opposition telling legislators that they had received “a stack of anonymous letters” from parents.

On the other side are certain indisputable facts:

1.       Adoption records and OBCs do NOT seal upon relinquishment.  They seal upon ADOPTION.  They seal even in step-parent adoptions.

2.       Many women have been speaking out for years about how they never wanted anonymity from their own children.  They continue to be dismissed as “a tiny but vocal minority”.

3.       Adoption records may be opened by court order for “good cause shown”.  Even though it is presumably the parents’ identities at stake, there is no provision for the parents to voice their opposition to disclosure.  In most states, even waivers from those parents do not guarantee that the records will be unsealed.

4.       Information from confidential intermediaries has shown that the vast majority of parents contacted welcome the opportunity to reconnect with their children.

5.       Contact preference forms filed in Oregon and other states are overwhelmingly in favor of contact.

6.       The overwhelming majority of recent domestic adoptions have been OPEN adoptions because the vast majority of relinquishing parents are insisting upon open adoptions.

The opposition counters this with the “if only one…” argument.  They have convinced legislators that it is better to stick with the status quo of denying equal rights to millions of adoptees than to allow anyone’s life to be “ruined” by disclosure.

Recently however, certain documents have been making an impact among legislators.  First and foremost are actual surrender documents which have been collected by Prof. Elizabeth Samuels.  You would think that if anonymity/confidentiality/privacy was promised to a relinquishing parent, that promise would find its way into the primary document signed by that parent.  These surrender documents have been very enlightening, to say the least.  Promises are being made, but it is the parent who is doing the promising.  General provisions:

-          The parent is terminating ALL rights (parental and otherwise) with respect to the child and is, in turn, being released from all obligations with respect to said child.

-          The parent has no right to be notified if and when the child has been adopted, and by whom.

-          The parent promises not to search for or contact the child or the child’s adoptive family WHILE THE CHILD IS A MINOR.  This time limit was a big surprise to many people.

The second set of documents making an impact are contemporaneous notes, letters, policies and testimony from when the various legislatures were first considering passing laws to seal adoption records.  As stated before, the original legislative intent was to prevent the general public, and only the general public, from accessing the records.  We need to do more research in this area as each state’s legislative history is unique.

A WORD ABOUT DYSFUNCTIONAL LEGISLATURES

Many of those in the lobbying trenches have been stymied by the reality that power is concentrated in the hands of a few long-term politicians.  This does not just affect our legislation, of course.  One would THINK that when half of the Assemblymembers have signed on as SPONSORS of a bill (New York), then that bill would have long ago been released to the floor for an up-or-down-vote.  One would be very very mistaken.

We (adoptee rights advocates) have seen well-supported bills languish in committee for decades.  We have seen public hearings scheduled, re-scheduled or cancelled at the last minute with no explanation.  We have seen bills rewritten without the input of the adoptee rights lobby group who proposed the legislation in the first place.  We have seen bills containing access provisions completely gutted of those provisions prior to passage.  We have seen the outright railroading of attempts to schedule bills for a floor vote.

Much work needs to be done.  We need champions (preferably adoptees) in the various state legislatures.  We need more research into the original legislative intent.  This can take various forms, including contemporaneous newspaper articles extolling the virtues of sealed records.  We also need first parents to write letters to be included in lobby packets and we need them to request their surrender documents.  Together, we can be a force to be reckoned with in the 44 states (and DC) that do not allow adult adoptees unrestricted access to the single sheet of paper that recorded their births.

Our deepest gratitude to Romany. She will post more on this topic in the very near future. If we educate ourselves, we can change the world!