Adoptees Deserve Access to Their Birth Records
from Fall 2005 Adoptalk
by Barbara Busharis and Pam Hasegawa
An adoptee and adoptive mother, Barbara Busharis works as an attorney, and is an adjunct instructor at Florida State University’s College of Law, where she teaches a family law seminar. Pam Hasegawa, who is co-chair of communications for the American Adoption Congress, is an adopted person as well as an adoption educator and photographer.
Adoptees’ desire to access birth records has been an emotionally and politically charged issue for the past 30 years. Public debate over the issue has created an interesting and somewhat peculiar flow and counter-flow of efforts to amend vital statistics laws. For those who support an adoptee’s right to know his or her history, an understanding of the debate, states’ responses, and the history of sealed records is essential. With this information in hand, we can take concrete steps toward openness while respecting the rights of everyone involved.
The History of Sealed Records
Legal expert Elizabeth Samuels writes that sealed birth records, far from being a well-established tradition, did not exist before the mid-20th century and were not widespread until after the 1960s. In many places, records were even sealed in two steps—first from public scrutiny and later from those named in the records. This progression of closing records arose from the emerging idea that families formed through adoption should be indistinguishable from those formed by birth. According to Professor Samuels, 20 states still allowed adoptees to see their birth records as late as the 1960s. Other states did not seal birth records until the 1980s and 1990s.
In addition, not only was the trend toward secrecy less than universal, it came as society was profoundly altering its perception and treatment of adoptees and unmarried birth parents. During the 1970s, search and reunion support groups sprang up all over the country. Then, in 1978, the Department of Housing, Education, and Welfare (HEW) assembled a panel 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 secret. The act HEW finally endorsed did not address adoption records, and a system of unequal treatment under the law—whereby adoptees were denied the right to access birth information that everyone else enjoyed—continued to become more entrenched.
Throughout the 1980s and into the early 1990s, no state reversed its sealed records laws and some that had resisted the trend to seal records finally capitulated. Pennsylvania sealed birth records in 1985; Alabama officially sealed its records in 1991. Only Kansas and Alaska continued to give adoptees the opportunity to access their birth records.
Ironically, even while states upheld their sealed record laws, many considered search and reunion issues in the 1980s. More adult adoptees were seeking information about their origins, so many states created intermediary or registry systems. Registries, though, were a “compromise” supported by closed record advocates, and were highly restrictive. Some systems required adoptees to obtain their adoptive parents’ permission; at least one had a counseling requirement. Such restrictions, coupled with a lack of funding and publicity, kept registries from accomplishing even their limited goal of passive matching.
Legislative Responses to Allowing Adoptees Access to Birth Records
Despite evidence that most people with adoption experience support access to birth information—including results of a mid-1990s study of adoptive parents’ attitudes toward openness by Cornell University and the New York State Citizens’ Coalition for Children—access bills have been repeatedly stymied. In part, because so many still do not understand when and why adoption records were first sealed, debates have tended to revolve around reunion issues, and ignore the fact that states have been keeping records on citizens that a select few cannot see.
Even when legislators have supported adoptees’ right to their records, the unfounded yet prevalent belief that birth parents were promised confidentiality has led to hybrid systems in which an adoptee’s ability to access records hinges on the year of birth, type of adoption, and whether the adoptee already has information. In several states, adoptees born either after access legislation came into force, or before records were sealed, can access their records if a birth parent does not object. Adoptees born in the interim, however, must use confidential intermediaries or the state registry to seek information.
States where access to birth certificates depends on the year of birth or adoption include Colorado, Maryland, Michigan, Montana, Ohio, and Vermont. In Texas, recent legislation allows adoptees who already know their birth parents’ names to obtain a copy of their original birth certificates. And in Virginia, court records for private placements taking place after 1984 are available to adoptive parents, adult adoptees, and birth parents named in the records.
Supporters of access to records believe that the right to know one’s history should not be revoked because of one’s birth date, how one was adopted, or whether information was deliberately or inadvertently shared with one’s parents. Past arguments about seeking contact with birth parents, while compelling, took the focus off how adoptees experience differential treatment under the law. In recent years, the emphasis has turned back to legal issues, and led to a more balanced approach in open records laws passed during the last 10 years.
Access legislation began to gain momentum in 1994 when Tennessee revised its adoption code to recognize adult adoptees’ right to copies of court, agency, and birth records—not just original birth certificates. Opponents sued in state and federal courts to prevent the access provisions from taking effect. In September 1999, however, the state Supreme Court upheld the law and records finally began to be issued.
In 1998, Oregon voters passed Measure 58, a ballot initiative that gave adult adoptees the right to access their original birth certificates. As in Tennessee, open record opponents launched court challenges, but once again the law was upheld. Within a month after Measure 58 went into effect in May 2000, more than 3,650 adoptees had applied to receive copies of their original birth certificates.
Oregon’s system of access allows birth parents (through a non-binding contact preference option) to state whether they would prefer direct contact with a relinquished child, contact through an intermediary, or no contact at all. This contact preference model, which has since been duplicated in Alabama and New Hampshire, creates a way to respect birth parent wishes without denying adoptees access to their birth records.
Supporting Record Access Today
Although we have made important strides, far too many adoptees cannot yet access information that children who grow up in their birth families take for granted. Fortunately, we can all do something to help ensure that access laws are introduced, supported, and eventually passed in every state. For instance:
- Clarify the history of sealed records in conversations with colleagues and triad members. Sealed records are an extremely recent “tradition,” and ever since states began keeping adoptees’ information away from them, an intense debate has been raging.
- Be aware of groups that are likely to oppose efforts to open records. Efforts to keep adoptees from viewing their records have typically been supported by certain right-to-life advocates, the Catholic Conference of Bishops, and some chapters of the American Civil Liberties Union and state bar associations. Leading the fight, the National Council for Adoption, with member agencies like LDS Social Services, has aggressively testified about the alleged dangers of unsealing adoption records.
- Discuss records access with a variety of people and groups because you never know who might support the cause. Start with adoptees, NACAC representatives, adoption and mental health professionals, child advocates, and foster parent associations, but don’t forget other groups. Some adoptive parent groups support adoptees’ right to access their records, and the right-to-life movement is not uniformly opposed to more openness. Some church-affiliated agencies have actively supported contact between adoptees and birth parents, and in 1992, the directors of NJ Catholic Charities Maternity and Adoption Programs endorsed the right of adult adoptees to have unencumbered access to their birth certificates.
- Help others to understand that the arguments opponents typically put forward are baseless. The Tennessee litigation in the mid-1990s rebutted claims that restoring adoptee access to birth records would result in more abortions. In fact, sealing records did not slow the rate of abortion, and granting access to records has not increased the rate at all. In addition, court decisions in Tennessee and Oregon have confirmed that that there was never an absolute guarantee of birth parent confidentiality in any adoption.
Kathy Ledesma, Oregon’s adoption program director, wrote in a recent letter that in the five years since Measure 58 took effect, “there has been nearly no negative fallout from the open birth records measure/legislation.” In addition, the numbers of birth parents making adoption plans and would-be adoptive parents trying to adopt from private agencies have not decreased as feared. “We here in Oregon,” Ledesma concludes, “have learned…that in the crafting of public policy, the fears of a few…cannot necessarily be generalized to all of the public that is affected.”
- Be deliberate about the language you use to talk about adoptee access issues. For example, the phrase “opening adoption records” is misleading because it suggests people want to grant unfettered access to the records. “Restoring adoptee access to birth records” more accurately describes what we support. In the same way, “Giving adopted children their records” is misleading while “Allowing adopted adults to obtain their birth records” is more exact.
- Meet with a state legislator in your district and explain how adoptees and their families are affected by sealed records. If he or she is responsive, recommend that the legislator draft a bill to address the issue. If your legislator is not responsive, visit your state legislature’s web site to see who has introduced adoption-related bills. Or call a child advocacy group to ask which state lawmakers support bills pertaining to children’s and families’ civil rights.
- Investigate organizations that promote access. Concerned United Birthparents (www.cubirthparents.org) and the American Adoption Congress (www.americanadoptioncongress.org) are national groups. State groups include Maine’s Access 2006 (www.obcforme. org), the Minnesota Coalition for Adoption Reform (www.adoptreform. org), New Jersey Coalition for Adoption Reform and Education (www.nj-care.org), and Texas Coalition for Adoption Reform (www.txcare.org).
By understanding how birth records came to be sealed, and debates that have kept them closed, we can help free adoptees from the closet of secrecy. Prospective adoptive parents now routinely learn about “acknowledging differences” rather than denying them. Sealed records were originally premised on the denial of differences, to make adoptive families appear like birth families. The rationale that they are somehow crucial to maintaining adoptive families now must be recognized as outdated and unneeded.