Ethics and Accountability Conference
Sponsored by Ethica and Evan B. Donaldson Adoption Institute
October 15-16, 2007
Bullet points for discussion during Workshop 2.3:
- How do current laws and practices support or impede adopted persons’ access to information about themselves?
- What “rights” should adopted persons have to such information? How should their “rights” be balanced against those of other parties to an adoption?
- How should access to records and history, as well as search, be thought about from an international perspective?
Frederick F. Greenman, Jr. is the legal advisor and former Director to the American Adoption Congress. He is also the Treasurer and a director of the Evan B. Donaldson Adoption Institute. A prominent adoption activist, he was the senior counsel to amici curiae in the historic case, Doe v. Sundquist, which upheld the 1995 Tennessee Adoption Act. He also assisted counsel in the Oregon litigation, Does v. Oregon, that upheld the ballot initiative and statute in that state which granted adoptees access to their original birth certificates. Mr. Greenman has participated in various state and federal lobbying efforts, most recently concerning ratification and implementation of the Hague Convention on International Adoption. His interest in the subject stems from having surrendered a daughter for adoption at her birth and with whom he reunited 15 years ago. Mr. Greenman, a Harvard graduate, currently is a sole practitioner specializing in copyright related litigation in addition to issues relating to adoption reform.
Marley Greiner is the co-founder and executive chair of Bastard Nation: the Adoptee Rights Organization, the largest adoptee rights organization in North American. Ms. Greiner’s work has focused on the right of all adult adoptees to access their original birth certificates upon request without restriction. She was actively involved in Ballot Measure 58 in Oregon and legislation in Alabama and New Hampshire which restored the right of adult adoptees to access their original birth certificates. Ms. Greiner also is considered an expert on “safe haven” laws. Since 2001, she has published and edited Baby Dump News, a weekly e-chronicle of newborn abandonment and neonaticide. Ms. Greiner’s additional adoption interests include the relationship between adoption and Biblical America and the portrayal of adoption in film. She maintains the blog, The Daily Bastardette . Ms. Greiner holds a BA in English and Political Science from Malone College, and an MA in American History from the Ohio State University.
Pam Hasegawa, born Rolande Sygne Hampden, has been involved with adoption reform since joining ALMA (Adoptees’ Liberty MovementAssociation) in 1973, NJCARE (NJ Coalition for Adoption Reform and Education) in 1991 and the American Adoption Congress in 1996. Her commitment to rectifying the injustice imposed by the sealed records system on persons living adoption keeps her involved as a grass-roots lobbyist and adoption educator. The “letter to the editor” has become her favorite genre; presenting experiential workshops for adoption professionals and parents with Betsy Forrest and Penny Partridge is an ongoing delight; and working with younger members of the adoption constellation who commit their hearts, minds and energy to adoption reform is a constant source of joy for her. She has been sustained in the long journey toward truth, both personal and communal, by the grace of God, deep friendships forged out of a common understanding of the need for truth in adoption and her family’s abiding support for her work as a “professional volunteer” in the adoption arena.
Elizabeth Samuels is a professor of law at the University of Baltimore School of Law, where she teaches courses in the areas of constitutional law and family law. She is a graduate of Harvard College and the University of Chicago Law School. The subjects of her research and publications include the history of adult adoptees access to original birth records and the current state of laws governing mothers’ consents to the adoption of their newborn infants. Her public service activities includes consulting with adoption law reform advocates as well as other civil rights work.
Elizabeth Samuels covered the history of adult adoptees’ access to their own records. Her theory is that it helps us to understand where we are if we understand how we got here. She became interested in this subject because her sister relinquished a child and they met when her birth niece became an adult. She wondered why it was thought beneficial to make records closed. To her amazement, it hadn’t been thought beneficial for adult adoptees and there were different reasons that had led to the closing of records.
Statutory adoption is relatively recent historically. The first state adoption statute was in the mid-1800s. It wasn’t until the 1920s that essentially all states developed a statutory process for adoption. Initially, all records were open. In the early 1900s there was a movement among the states to protect the privacy of the participants i.e., confidentiality (closing records to the public). In the 1930s and 1940s states began moving toward the amended birth certificate where the child was documented as having been “born to” the adoptive parents. It was also during this time that states began sealing records not just from pubic inspection but from inspection by the parties: adoptive parents and birth parents. The primary reason was to protect adoptive families from interference or harassment from birth families. Surrender papers during this time contained promises not to seek out the child or harass the adoptive family. Adoptive parents, on the other hand, were often given documents with identifying information.
In 1953, the National Conference of Commissioners on Uniform State Laws developed the first uniform adoption act recommended to states. They clearly recommended that court and birth certificate records be closed to the public and parties but that they should be accessible to adult adoptees and they were in most states at that time. And as late as 1960 in more than half the states, adults adopted as children still had access to records with identifying information. After 1960, 4 states closed records to adoptees, 6 in 1970s and 7 did not close until after 1979. Even in closed states, records could be opened by court order without notice to or participation by birth parents.
Obviously there was a huge change in attitudes from the 1950s to 1970s. Why? There were a complex confluence of factors that led to this result with no easy answers:
- Closing of records to public and parents helped create and endorse the idea that secrecy was a normal part of the process
- Post- WWII emphasis on women fulfilling traditional roles: staying home and having lots of children
- Psychoanalytic idea at least for young white unmarried women that they were suffering from a mental and moral disorder that led to their pregnancy that could be cured if they placed the child with a “normal” family
- Emerging idea that adult adopted persons who were interested in finding out about their origins were also suffering from a mental disorder.
Nowadays, substantial numbers of adult adoptees find out information outside of the government though many spend years and resources doing so. Looking at this history, it’s a relatively short period that adoptees have not had access. It was really an experiment that has proven more harmful than beneficial.
There are a number of reasons why original birth certificates of adoptees remained sealed in all but a handful of states:
- Well-funded industry lobbies such as the National Council for Adoption
- Powerful marginal lobbies such as the National Right to Life Committee, Family Research Council, ACLU, Planned Parenthood and various feminists who believe adult adoptee identity rights endanger their own social and political agendas
- Politically influential adoptive and birth parents
- Reactionary and back scratching politicians
- Political lethargy
Right to identity and public records have no traction in the political landscape unless they intersect with high priority issues such as abortion or privacy rights and then they intersect only negatively. Adoptees are expected to shut up and be grateful for allegedly being made middle class and not tossed in a dumpster or reared in a trailer park. Those who press for records access are blamed for “disappearing adoption privacy rights”. “Adoptees are destroying adoption.”
Adoption reformers continue to defeat themselves by compliantly accepting less than what they want: baby steps that lock out people. They feel that compromise is progress, something is better than nothing. But there is no precedent for these bad laws to be changed later. Compromisers tend to legitimate and frame their arguments in the ideology and language of the opposition. They accept the faulty social construct of the triad and its false doctrine of competing rights, balanced rights and special rights. Without the core ethic of an absolute right to birth certificates and identity for all adoptees, reformers support institutional protectionism. Their compromise is obstruct rights and information for all and the opportunity for reunion for those who seek it.
Leave no one behind. 10 years ago Bastard Nation was founded on the guiding principle that access to original birth certificates, identity and history is a natural right, not a privilege doled out by the state. Reasons for wanting birth certificates are immaterial because they are based on desire not the right to possess them and the unredacted information in them. We have the right to the facts of our births, origins and adoptions. Adoptions were imposed and contracted upon us without our knowledge and consent by the state, then that same state seals our information and refuses to acknowledge our right to that information or even that we existed prior to our adoptions. The non-adopted need not justify why they want their vital records nor are they forced to ask for their parents’ permission, grovel before a judge, join a government registry, seek mental health counseling or spend years getting a bill passed to get them. They have a presumed right to their own birth certificates and can do with them what they please. All arguments for access then must flow from the presumed right of all adoptees to unrestricted access and possession of their true birth certificates, not just the majority class. Otherwise the right of anyone to possess their own birth certificates is not a right but a favor the state grants to some.
The real issue therefore moves from personal desire to political rights and adoptees’ relation to the state. Who owns your identity, you or the state? In Oregon, two years after Bastard Nation (BN) was founded, it had its first victory with the passage of Ballot Measure 58, in which the people decided that Oregon adoptees had a right to their own birth certificates. When BN initiated the campaign, adoption reformers wrung their hands and said “you’ll throw us back 20 years!” They forgot to mention in their 20 years of activisim they had failed to open one single state to full access and in fact had mucked things up so badly with compromise legislation such as contractual birth parent disclosure vetos and tiered access that it will be virtually impossible to gain unrestricted access in those states without major league wrangling, if ever.
BN's victory in Oregon was followed by legislative restoration in Alabama in 2000 which was BN's bill and New Hampshire in 2005 where BN worked with others to pass unrestricted access. Earlier this year folks in Maine unconnected to Bastard Nation who previously considered compromise got a clean bill passed which will open records for all in 2009. Exact figures are unavailable, but since at least 1999, at least 14,000 adoptees have received their birth certificates under the Just Say No to Compromise Policy. Holding the line works. Conversely, compromise legislation slugs endlessly through the pipeline amended out of recognition in a vague attempt to please an unpleasable opposition that insists the status quo continue ad infinitum.
False triad concept. Adoptee rights advocates are bogged down with the concept of the adoption triad: the first parents, the adoptive parents and Baybee Bumble, the adoptee, all of whom allegedly have competing rights that must be balanced. Translation: adoptees lose. The triad characterizes the entire adoption structure as a nuclear unit; in reality, it hides information as well as people: for example, grandparents, cousins, siblings, fosterers, and institutions central to the adoption experience -- agencies, social workers, facilitators, marketers, politicians and the marketplace. There are a myriad of complicated relational permutations concealed by “the triad.” Once the other actors are introduced, we see hidden power relationships based on chronology of events, economics, class gender, race, market demand and other factors. The triad concept moved from a sociological to a political discourse where it became manipulated by those living below the water line: private business, adoption professionals and their government security force: the state which ultimately defines what adoption is and can force its will on the rest of us. For example, first mothers were morphed from threat to the adoptive family to courageous women who need protection from their adult offspring. In response, the state and the adoptocrasy colluded to develop an aggressive claim of bureaucratic promises to first mothers asserting that their anonymity is protected by sealed records, thus creating a new privacy right which has nothing to do with privacy. When documented evidence of these promises or even the desire for them was not forthcoming, the adoptocrasy countered that although there was nothing in writing, promises are implied.
These and other claims to make records sealed are ludicrous. Surrender does not equal adoption. Privacy and confidentiality do not equal anonymity nor do sealed birth records. Under normal circumstances, competitive rights and their balancing is a problem only when there are a conflict of rights. Since there is no right to anonymity to one’s own offspring and there is a presumed to one’s own birth certificate, there is nothing to balance except in the minds of the secret keepers. What adoptocrats really want when they toss around competing rights, implied promises and confidentiality is protection from their commercial misdeeds and their continued control over other people’s personal information. This is all about institutional power. The false doctrine of competitive balance, special rights discourse foisted by the below the water line players on the above the water line people most affected by adoption is a false flag operation. Ron Morgan in his essay “Adoption is a Five-Legged Stool” writes: “The beauty of the Triad, at least to the fourth and fifth leg, is that it renders their agency invisible. The state and its quasi-agents, the professional adoption class, can float divinely over the pell mell and gore, offering definitive commentary and altering the rules of the game. It's a tidy racket."
This tidy racket played out in Massachusetts recently when a reform organization packed with a professional adoption class rejected a clean bill and accepted a replacement pushed by politicians and a handful of adoptees that restored the right of access to some, keeps all future records open, but continues to seal the records of other adoptees between certain dates in order to protect the privacy rights of first parents who surrendered children between those dates. By doing so, reformers legitimated implied promises of confidentiality debunked years ago; a lie they insist we must respect. The message is clear: adoptees have no genuine right to their birth certificates or their personal information even their advocates agree.
The triad with its plea for balanced rights forces compromise and corrupts the core principle of adoptee rights to records, identity and autonomy. Without an ethical cannon of absolute inclusion and no compromise, the rights of adoptees will continue to be balkanized and adoptees will continue to be treated as a separate class undeserving of their own records.
Records access is a social justice issue and I think it needs to be framed that way.
What are the impacts of current laws that impede access?:
- Lack of medical history
- Not being able to have a copy of one’s own original birth certificate impedes knowing ethnic and religious heritage
- Files are different. Agency has one file, the government has its own files. The files are different or incomplete. Information is selectively edited.
- Inability to verify one’s own birth day, county in which one was born, lack of historical truth.
- In a private adoption, there is a record the lawyer has which is more likely to be thrown out earlier than a record in an agency.
- A lot of adoptees have problems getting passports. Person whose birth certificate is filed more than one year after birth can’t use that birth certificate as appropriate evidence.
- Closed records create a market for information because information is restricted.
- Information can be sold to those who can afford it or have connections to get it. That unequal access is unjust.
- Adoptees say it makes them feel like second class citizens, perpetual children.
- Totally discriminatory including within the adoption community, for example, foster children generally have access and some international adoptees arrive with their original birth certificates.
- Impedes access for future generations.
- Impedes guarantee of ethical practices.
- Those in open adoption say they have their children’s birth records, but if something happens to them, can’t get them back.
- Siblings do not know they are siblings. Possibility of incest being permitted.
- In international context, if government doesn’t keep records and agency destroys records, then there are no records. In Hague regulations, all open access provisions are governed by state laws in the US. So if adoptee comes from abroad into a state with closed records, then that record gets closed even if the Convention gives access.
What are ways to make changes?
- adopteerights.net is having a nationwide demonstration in New Orleans on July 22, 2008 to coincide with the National Conference of State Legislators.
- The American Adoption Congress has a legislative packet that is helpful.
- When any kind of law comes up about adoption, one can testify as a citizen. At least write a letter. In off years try to form relationships with representatives.
- From Ethica’s standpoint, people who oppose opening records have a sophisticated way of notifying all their supporters when a bill is coming up and they flood legislators with calls. There is potential to tap into the adoptive parent and other supporter communities who believe this is not right. We can work together to come up with a similar system to flood legislators with calls.
Several things have developed to deal with mothers who don’t want their identity known. Oregon and three other states have contact preference forms. In a closed adoption, a birth mother has no assurance or warning she will not be found. The only case of harassment he is aware of occurred in New York which has the most tightly sealed records. If her child wants contact and records are opened, all statutes set a minimum age of at least 18 – her feelings may change over time which is what typically happens. In states with contact preference forms, the experience has been no reported problems.
Current state of law regarding adoption access statutes. Originally had 48 closed records states (all but Kansas and Alaska). 6 have granted access. 4 of them subject to a contact preference form. Delaware has a disclosure veto -- 19 filed in entire state since 1999. In 1996, Tennessee because the first state to retroactively open records. Birth certificates had false or meaningless info because of Georgia Tann, so the Tennessee statute gave access to entire adoption file. In another 12 states, access to original birth certificates or identifying information depends on the year of birth based on the argument that birth mothers were promised confidentiality. A number of states have a confidential intermediary system.
The whole process of secrecy starts mechanically with the original birth certificate and sealing and alteration of it into an amended birth certificate which shows the adoptive parents as simply the parents. This practice was started in 1928 by Georgia Tann who was perhaps the most notorious baby thief. She sold at least 5,000 children and at one time was the most prominent adoption practitioner in the country. She is the origin of this problem.
All these varying systems are for better or for worse constitutional in the US.
Ontario passed a statute which granted retroactive access to identifying information to adoptees and birth parents. There was a decision holding that statute unconstitutional. Not clear if ruling will be appealed. The ruling is weak because in Ontario, adoptive parents have always had access to original birth certificates and one plaintiff is a birth father. Paternity suits are not defended on grounds of privacy.