Open Adoption Records-The Adult Adoptee’s Right

The process of adoption involves the legal transfer of the guardianship of a minor child. In the United States, part of the formalization of the legal adoption is the creation of an ‘Amended Birth Certificate,’ or ABC, which is an official, certified document that shows the adoptive parents as the parents of the adopted child. The original birth certificate, or OBC, which shows the name of the biological mother and in some cases the biological father of the child, and all documentation from the adoption is then sealed by the court. In many cases this document is the only link an adopted person has to their biological family.

By the 1940s and 1950s, most states had adopted the practice of sealing adoption records from the public, largely in an effort to protect the adoptive family from the stigma of illegitimacy, which in many states was physically stamped on the birth certificates (Bastard Nation, “The History of Sealed Adoption Records in the United States.”).

As of this writing, only 9 states have changed their laws to allow the adult adoptee open, unrestricted access to their own original birth certificate. 19 states allow partial or restricted access, usually in the form of a “veto clause” whereby the biological parent(s) have the option to redact their names from the document and maintain their anonymity. In the remaining 22 states an adult adoptee has no access to their own information (American Adoption Congress).

Access to the original birth certificate is a basic human right. This right was formally described in the United Nations Convention on the Rights of the Child, which was signed on November 20, 1989 and effective September 2, 1990 (Wikipedia). The document specifically acknowledges in Articles 7 – 10 the right of the child to their identity, name, nationality, and family, and further admonishes states to restore any of these of which the child was deprived (Wikisource). Even though the United States was participatory in the drafting of the document, it is one of only three countries, including Somalia and Sudan, that have refused to ratify it. In the case of the U.S., this refusal is due to the restriction against life sentences and the death penalty for children, and because it would require a massive revision of currently accepted adoption practices in the U.S. (Musings of the Lame “United Nations Convention on the Rights of the Child.”). Nonetheless, the document proves that the right to one’s true identity and heritage is acknowledged nearly universally as a basic human right.

As our understanding of the genetic influence on certain diseases grows, it has become increasingly important to know and consider these factors in the course of health management. Family medical history is routinely gathered by healthcare providers. Even before the genetic markers were identified, the medical community has long acknowledged that certain diseases tend to run in families, and the presence of them in a patient’s family tree would warrant monitoring and testing with the understanding that early detection leads to better outcomes. Adoptees without access to their original birth certificate are disadvantaged by being unable to discover vital information about their genetic heritage.

The birth certificate is a vital document that is used for identification for a variety of purposes, including applying for a drivers’ license, a passport, and even some jobs. Fortunately, the Amended Birth Certificate is generally accepted for these uses, being indistinguishable from the Original Birth Certificate. However, since 9-11 the Homeland Security Act’s requirements for using a birth certificate as proof of U.S. Citizenship for passport applications include that the birth certificate must be signed by the registrar within one year after birth. For many adoptees, their adoption was not finalized until after that time and therefore their Amended Birth Certificate would not be valid for that purpose (Musings of the Lame “Adoptee Rights and Access to Their Original Birth Certificates.”).

Changing state legislation to allow adult adoptees access to their original birth certificate is notoriously difficult. Representative Sara Feigenholz of Illinois’ 12th District first introduced this legislation in 1997. Fourteen years later, in 2011, HB5428 finally passed into law. Illinois is one of the states to have restricted access. The law allows birth parents to formally redact their name from the original birth certificate, and it also creates a medical information registry where family medical information can be shared anonymously. Such provisions are vehemently opposed by many adoptee rights groups, but have proven to make OBC access legislation more palatable to some legislators. The key opponents to open records legislation are representatives of the adoption industry. The arguments against open access fall into three basic categories:

  1. Privacy of the biological mother. However, no evidence has ever been uncovered of a relinquishing mother being promised (or expecting) anonymity. The act of relinquishing a baby is generally due to economic or social pressures, not because the mother never wishes to have any contact with her child. In the state of Illinois, for example, of the 14,871 original birth certificates issued since the law was enacted in 2011, only 84 were issued with the identifying information removed – less than one percent (Feigenholz).
  2. Negative impact on the willingness of mothers to relinquish their babies to adoption. As indicated by the facts in point 1, mothers do not expect or want to be forever separated from their children. In fact, the open adoption practices that are common today are shown to make the idea of relinquishment more appealing, where a mother can continue to have reports and pictures of – if not contact with – their relinquished child. This is often used as a selling point to encourage women to relinquish their babies.
  3. An increase in abortion rate, due to women being unwilling to relinquish if they cannot be assured anonymity. Not only is this not borne out by the facts as detailed in numbers 1 and 2, in states where the OBC access has been granted the abortion rate has continued on the same downward trend it has been on since the 1980s (Musings of the Lame “Debunking OBC Access Myths and Fears.”).

As is often the case with coordinated resistance to certain kinds of legislation, corporate interests seem to be the driving force influencing legislators. Adoption is a multi-billion-dollar industry and their ‘customers’ – the adoptive parents – have the most reason to desire sealed records. They may fear interference by the biological family, desire a cleaner ‘break’ that allows them to start fresh with their newly formed family, and/or they may feel anxious about potential changes in their relationship with their adopted child if a successful search is initiated. On their behalf, powerful lobbying groups such as the National Council for Adoption pressure legislators to leave sealed records laws intact (Bastard Nation “Sealed Records and Adoption Reform: An Historical Perspective.”).

Some states attempt to resolve the situation with Confidential Intermediaries. These are given access to some, or all, of the adoption records, and when employed by any member of the adoption triad (birth family, adoptee, adoptive family) they can instigate a search for the desired party. If the party is found, the Confidential Intermediary instigates non-identifying communication between the parties, reading and redacting their correspondence as they deem appropriate, until such time as all parties agree to reveal identifying information. Unfortunately, in practice this arrangement is less than satisfactory. The process is very time consuming and dependent on the skills of the CI. In some states this is a paid service, and its cost can be prohibitive. Ultimately, it does a disservice to the idea that adults should be free to conduct their own affairs. As with every other kind of adult contact, if there is unwanted behavior there are stalking and harassment laws in place to protect an objecting party.

Altered Birth Certificates and sealed adoption records were contrivances to protect the adoptee and their adoptive family from the social stigmas of the early- to mid-20th century surrounding unmarried mothers and their so-called ‘bastard’ children, who at that time were viewed as shameful and morally unfit, if not assumed to be mentally defective. Moreover, they allowed an infertile couple to build a family and pretend it was natural. In some cases, the adopting couple would go to such extremes as faking the wife’s pregnancy or moving to a new town where the truth of their adopted child was unknown. These laws did not take into consideration the rights of the adoptee, either in childhood or in adulthood.

As is appropriate, many choices are made for minor children, adoptees or not. It would appear that only the choice to adopt creates an immutable condition where the child never grows into a set of full adult rights. Even relinquishment does not engender this condition, because if a relinquished person is never adopted, their records are never sealed. It is only the choice to adopt that renders the adoptee forever a non-adult in the eyes of the government. There does not seem to be any compelling interest for the government to keep secret any records pertaining to an adult person that are desired. Indeed, it seems inarguable that it is in the state’s interest to promote the health, well-being, and basic human rights of its constituents. It is on these grounds that I argue that all states have a duty to allow unfettered access to the original birth certificates for any adoptee who requests it.

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