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Adoptees Should Have the Right to View Their Adoption Records
“In all of us there is a hunger, marrow deep, to know our heritage, to know who we are and where we have come from. Without this enriching knowledge, there is a hallow yearning; no matter what our attainments in life, there is the most disquieting loneliness" (Haley Roots qtd. in Freundlich 3).
Sealed birth records are a generally new tradition in society. In fact, the idea did not exist before the 1950’s, and was not widespread until the 1960’s. Most records were sealed in two steps – first from the public, and then from those named in the records.
“The constant closing of records arose from the upcoming idea that families formed through adoption should be indistinguishable from those formed by birth. In addition, society was changing its perception and treatment of adult adoptees and unmarried birthparents" (Hasegawa, Busharis 24).
During the 1970’s, search and reunion support groups formed throughout the country. Then, in 1978, the Department of Housing, Education, and Welfare assembled a pair of experts, including a birth parent and an adoptee, to draft model uniform adoption legislation. Proposed in 1980, the act recommended that adult adoptees have access to their original birth certificates, as well as court and agency records about their adoption. “Unfortunately, the proposed legislation energized groups that wanted adoption to remain a secret" (Hasegawa, Busharis 24).
The act finally endorsed did not address adoption records, and a system of unequal treatment under law – where adoptees were denied the right to access birth information that everyone else had – continued to become more established.
Throughout the 1980’s and into the early 1990’s, no state reversed its sealed records laws and some that had not until that time finally did. Only Kansas and Alaska continued to give adoptees access to their birth records.
Most recently, many states created intermediary, or registry systems.
“Registries, though, were a ‘compromise’ supported by closed records advocates, and were highly restrictive. Some systems required adoptees to obtain their adoptive parent’s permission, and at least one had a counseling requirement. Such restrictions, along with a lack of funding and popularity, kept registries from accomplishing much of anything" (Hasegawa, Busharis 24).
The opposition has many arguments to support their cause. They believe that opening records violates promises to birthmothers; imposes unwanted relationships; increases abortions and decreases adoptions; undermines the integrity of the adoptive family and the institution of adoption; increases the foster care population; violates constitutional rights to familial and reproductive privacy; violates rights to avoid disclosure of confidential information and constitutional equal protection; and the privacy rights of adoptive parents. However, these arguments are not accurately based off of collected data and a correct analysis of the law.
“To begin, state laws have never promised birth mothers complete confidentiality from their children, and adoption practitioners’ verbal promises of confidentiality are not – and cannot be – binding unless they are supported by law" (Freundlich 17). Courts have proven that such promises can exist only if the laws expressly state that the closure is both absolute and permanent. The statues and adoption records are neither. Furthermore, reviews of signed agreements have found no such “promises" in writing.
To believe opening adoption records will impose unwanted relationships confuses the right to information with the right to a relationship. Research and experiences of active registry and confidential intermediary programs have shown that the majority of birthparents want contact, not secrecy. Moreover, “characterizing contact between adopted people and their birthparents ‘intrusions’ and ‘forced relationships’ contradicts the motives of adopted people who seek information" (Freundlich 19).
There is no data to support claims of increased abortions and decreased adoptions with the opening of adoption records. “The Oregon Center for Health Statistics and Vital Records reports that the number of induced abortions performed in the state dropped 18.2% since the passage of its law" (qtd. in Freundlich 20). Kansas and Alaska, whose records have always been open, have a lower abortion rate than the national average. Also, “The National Council for Adoption’s Adoption Index ranks four states that allow access to records in the top twenty of the highest adoption rates [Alaska, New Hampshire, Kansas, and Oregon]" (qtd. in Freundlich 21).
Studies show that adoption does not undermine the integrity of the adoptive family. In fact, they show the majority of adoptive parents are secure in their relationships with their children and support their children’s efforts to learn more about their birth families once they reach the age of majority.
“According to adoption statistics in states that have always allowed access to [adoption] information, adoption still remains a viable way to form families when adopted adult people have access" (Freundlich 22). In other words, the viability of adoption does not change if adopted adults obtain their information.
The argument stating that there would be an increase in foster care population if adult adopted people had access to their birth records means that:
If access laws were enacted, it will cause women to choose to raise their children rather than place them for adoption, and because the majority of these women are single mothers and as a result of single parenting; the children are at a higher risk of entering the foster care system (Freundlich 22).
It is known that certain social and economic factors may place children at risk of abuse and neglect; however, single parenting is only one of a number of factors associated with a greater risk of child maltreatment. “In overwhelming numbers, children raised by single parents are not maltreated" (Freundlich 22).
Courts have proven that constitutional familial privacy rights (the right “to marry, establish a home, and bring up children" (qtd. in Freundlich 23)) remains powerful and unchanged if adult adopted people have access to adoption information. Also, courts have never recognized adoption as part of the constitutional right to reproductive privacy, and furthermore, “adoption is about children, not reproductive privacy" (Freundlich 23), making this argument invalid.
Currently, there is not a constitutionally protected right to have all information one considers “confidential" shielded from disclosure. More intriguing, courts have noted that births are a matter of public record, and “[courts] have never held that the constitutional right of privacy has ever included a general right to the nondisclosure of all forms of information that an individual may prefer to keep secret" (Freundlich 23-24). Also, the argument claiming that allowing adult adopted people to access their information violates constitutional equal protection states that:
This [instance] may lead to the release of more birthmothers’ names than birthfathers’ and, as a result, the women are being treated unfairly and subjected to embarrassment. However, there is not any unfair classification of birthmothers and there is no fundamental right “not to be embarrassed" (Freundlich 24).
Lastly, the privacy rights of adoptive parents would not be violated because the child would receive the information once he/she reaches the age of majority. This is also the age when the adoptive parents no longer have legal control over the child. “Even though they may believe it is in their best interests to keep information from the adult child, they have no more legal right to control such information than non-adoptive parents do" (Freundlich 24).
Proponents for open adoption records argue that adult adoptees have a fundamental “right to know" personal information about themselves; placing the decision on release of information in the hands of state adoption systems has resulted in poor decision making; adopted people should not be bound by decisions on anonymity made by birthparents and adoptive parents at the time of adoption when confidentiality was never promised; states do not have a legitimate role in withholding birth and/or adoption information from adopted people once they are adults, and withholding such information violates legal equal protection guarantees by denying them the same rights as other people; the majority of birthparents and adoptive families, contrary to popular belief, support the release of information to the children they placed for adoption; and in states that have granted adult adopted people access to their records, predictions of negative outcomes have proven to be incorrect.
There are three categories behind the “right to know" initiative. Identity (first of three), means that adult adopted people have a right to information necessary to the understanding of their identities – including the identities of their birthparents and information about their births and adoptions. “Knowing one’s roots is a right humans are born with" (Freundlich 13). “There’s a great solace in even knowing a [birthparent’s] name," says Michal Grand, a spokesman for the Coalition for Open Adoption Records. “It’s important because one needs that kind of history to build a sense of identity" (qtd. in “Adoption Law: Privacy Must Be Protected" A6).
Knowledge of familial/medical history (second of three) is a right to information that can provide them with family, genealogical, and medical history. As recognized by the U.S. Surgeon General’s Family History Initiative, “familial medical history, in particular, can be vitally important in the diagnosis and treatment of medical conditions and illnesses that are genetically-based" (qtd. in Freundlich 13). According to Kathleen Silber, assistant director of the Independent Adoption Center in Pleasant Hill, California, “the adoptee gains a sense of genealogical connection as well as direct answers to questions about heritage, medical issues, and the circumstances surrounding the adoption" (qtd. in Esch A7).
Inheritance rights (third of three) is an important right for adopted adults to have because in states that allow adopted people to inherit from birthparents, adopted adults need to obtain the information that can possibly give them an inheritance.
Placing the decision to release adoption information in the hands of the state systems has resulted in poor decision making. Judith Ashton, executive director of the New York State Citizen’s Coalition for Children (NYSCC) and a mother of two adopted children, claims that “the social workers told us that if we reared our kids the way we were expected to, they wouldn’t be interested in their biological roots, their birthparents or their heritage" (qtd. in Powers 4).
Currently, access to records can only be obtained by a court order that requires a showing of ‘good cause’ or a ‘compelling reason’. Because there is no standard definition of ‘good cause’ that permits access to adoption information, an adopted person’s ability to obtain it rests on a ‘case-by-case’ interpretation that differs significantly from one court to another. (Carp 34)
Courts weigh the interests of the adopted persons against those of birthparents, who are not a party to the proceedings, are not represented, and whose true desires are not known and can only be assumed. The courts make presumptions about the desires of the absent birthparents (being that they would not want the information disclosed), and typically conclude that birthparents’ presumed interests are more important than the actual interests of the adopted people who appear before them. (Freundlich 14)
Adopted adults should not be bound by agreements made at the time of adoption because (not ruling out that some birthparents may have agreed to anonymity) it has been discovered that many were given no option other than to accept anonymity. As a condition of the adoption, they would not receive further information about their child. “It should also be noted that adopted people never participated in any discussions or agreements, so therefore their rights cannot be ‘signed away’ by others" (Freundlich 14). Ashton has her own opinion on the problem:
The problem is that the laws currently in place were made when adoption was looked upon much differently than it is today. The original rationale for sealing adoption records was to protect the privacy of everyone involved. For birth mothers, the social unacceptability of being a single parent was quite powerful, as was the unacceptability of infertility that was often the reason couples chose to adopt. Avoiding the prying eyes of the public was most important (qtd. in Powers 4).
Analyses of relinquishment forms show confidentiality was never promised to women considering adoption for their children. “Many of them contain language instructing birthmothers to refrain from any effort to locate the adoptive family or make contact with the family or the child" (Freundlich 15).
The argument that states do not have a legitimate role in withholding birth and/or adoption information from adult adopted people once they are adults rests on assumption that the state had a legitimate reason in sealing the records in the first place. “Most often this was done to allow the child to develop stable relationships with the adoptive family" (Freundlich 13). However, the state’s interests should stop when they become adults. “At that point, the state’s role is to respect the adults, allowing them to decide for themselves what is in their own best interests and allowing adopted adults who wish to access their records to do so" (Freundlich 13).
Adopted people are currently denied the rights of other people and are therefore treated unequally. Non-adopted people can obtain their birth certificates (usually after paying a fee), while adopted people must petition a court with a low probability of success. Denying the right to access their original birth certificates solely on the basis of their adoption status is unfair, discriminating against them because of how they entered their families.
The majority of birthparents and adoptive families support the release of information to the children they placed for adoption/rose. Multiple studies support this statement: In one study, 82% of birthparents said they would be interested in a reunion with their children. In another study in which birthparents volunteered to participate, the Maine Department of Human Resources Task Force on Adoption found in 1989 that everyone surveyed (130) wanted to be found by the child they had given up for adoption. A 1991 study found that 88.5% of birthmothers supported access by adult adopted people to identifying information on their birthparents.
A recent report by the Evan B. Donaldson Adoption Institute found that contacts with their birth children – and knowledge that they are well and safe – are the most powerful factors in helping birthmothers resolve the grief associated with having relinquished their children for adoption (Freundlich 15).
To find more answers, Ashton turned to Rosemary Avery, an associate professor in Cornell University’s Department of Policy Analysis and Management to develop a questionnaire that was distributed to 743 adoptive families in New York State. Participants were asked if they thought adult adoptees in New York State should have access to their birth certificates. “Overwhelmingly, the response was yes, adoptees should be able to have access to their original birth records" (qtd. in Powers 4).
In states that have granted adult adopted people access to their records, predictions of negative outcomes have proven to be incorrect. According to the American Adoption Congress, there have been no reports that adopted people disturbed or harassed birthparents or that divorces were a result of adopted people’s reunions with their birthparents (qtd. in Freundlich 16). Since Alabama’s law passage in May 2000, 2,722 adopted adults have obtained copies of their original birth certificates, with 131 contact preference forms filed (the state does not track expressed preference). In Delaware, from January 1999 to October 2006, 695 adult adopted people obtained their original birth certificates; 16 did not receive complete original birth certificates as a result of disclosure vetoes. In New Hampshire, as of July 9, 2007, 1,000 adopted adults received their original birth certificates. 12 parents stated their preference for no contact.
In Oregon’s November 1998 election, Ballot Initiative 58 would permit adults over the age of 21 access to their birth records. Advocates ran on a platform of equal rights. The ballot initiative was victorious, winning by a 57 to 43 percent margin. Within days of its passage, its constitutionality was challenged through a series of legal appeals. On May 31, 2000 Sandra Day O’Connor, acting for the U.S. Supreme Court, refused to hear the opposition’s appeal, and Ballot Initiative 58 became law. In the years that followed, there have been no reports that the privacy of birth mothers has been violated as the result of Ballot Initiative 58. Most recently, the number of birth certificates issued to adopted adults has increased to 9,129 (Carp 35-38).
Ruth McRoy of the University of Texas at Austin and Harold Grotevant of the University of Minnesota conducted a study that included 190 adoptive families and 169 birth mothers, and concluded that “some of the major issues that have been raised about the negatives associated with openness have not been found in our studies" (qtd. in Esch A7).
So, how are these statistics, research, and conclusions important? The reality is that just 7 of 50, or 14%, of states allow adopted adults to obtain their birth/adoption records. Letting truth be known, 43 other states can have their records open with the help of Americans, adopted and not. It is evident by the passage of laws in 5 states, overwhelming data and research supporting the cause, and the opposition’s arguments being nothing more than legal and social stir-ups. The process starts with a simple call to your local congressman.
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