Open vs. Sealed Records: Adoptee Rights
So many of you read my youngest sister’s essay on adoption and offered so much support that she has continued her persuit exploring adoptee rights. Here’s the latest paper she has written for school focusing on open vs sealed records and the often contentious battle over an adoptee’s right to their birth records. Enjoy! GS
Open vs. Sealed Records: Adoptee Rights
What if the love of your life, your spouse-to-be, turned out to be your fraternal twin? What if you discovered your co-worker of many years was your nephew? What if you were misdiagnosed for terminal illness because you couldn’t obtain your family medical records? What if part of your history was missing, and to retrieve it came with criminal punishment or a cost? “What ifs” are vehicles of our imagination, most often used to suggest the extraordinary. However, these types of questions and problems are neither far-fetched nor foreign to adult adoptees, the only group of people unrightfully denied their birth records in the United States. Due to closed records, to them, this is reality.
There are only five states and two commonwealths in the United States (Kansas, Alaska, Oregon, Alabama, New Hampshire, Puerto Rico and the U.S. Virgin Islands) that offer adult adoptees unconditional access to their original birth certificates. All Canadian provinces forbid access of government records to adult adoptees. The only birth records available to adult adoptees are “amended” birth certificates that list the names of the adoptive parents rather than the birth parents and often falsify other birth information. Adoptee’s original records of adoption and certificates of birth are permanently sealed in closed-records states by laws passed mainly after World War II.
Original birth certificates and records of adoption were not always sealed. This requirement occurred during the first decades of the twentieth century when each birth certificate was stamped either “legitimate” or “illegitimate.” Due to great stigma surrounding illegitimacy in the 1930s and 1940s, closed records laws were put into effect to, as the original language specifically states: Protect adoptees from the shame and embarrassment of being illegitimate and protect adoptive parents from exposure to embarrassment regarding the illegitimate origins of their child; or in many cases where the adoptee had not been told of the adoption, to give adoptive parents the prerogative to continue the secret. To seal off records access to all parties of the adoption triad—the birthparents, adoptive parents, and adoptees—virtually precluded the possibility that birth parents might try to interfere with the newly formed family as well, a “selling point” that adoption agencies used in the growing industry. Nowhere in the original statutes is there any mention of protecting the birth parents’ privacy. Protecting unwed mothers from the “shame” of their illegitimate children became another justification for keeping records sealed after the legislation was already in effect. This culture of shame and secrecy about adoption that is perpetuated by the sealed records is presented as protecting the adoptive triad and now needs to be eradicated, according to adoptee rights advocates. There is nothing shameful about adoption but state imposed secrecy denies basic civil rights to adoptees and continues the tradition of shame and secrecy.
The closed records laws are based on the assumed attitudes of the adoption triad as made by the social work industry, which had great effect on the legislature and the adoption agencies. Social workers may have been well intending in the creation of these laws, but many open records activists suggest that they had mainly lobbied for “greater confidentiality” to bolster the prestige and power of their profession. Whether it was out of goodness or profit, the social workers’ misconceptions that create the basis of these laws severely affect adoptees today and stagnate progress towards open records.
The assumed general attitude of birthparents was that most would not want to see their relinquished children due to the shame. For that reason, Contact Vetoes were made in which the birth parent may file a statement that their birth child may not contact them. Adoptees are subject to criminal penalties if they then attempt to contact their birth parent, denying their right to equal protection under the law. In a Contact Preference System, a birth parent can express their wishes concerning contact. It does not place a condition on access and it does not criminalize an adoptee unfairly.
These contact laws seem to be unnecessary measures, given that this is a false assumption, taking into consideration the majority of birthparents. In a recent survey, 95% of birthmothers said they would welcome contact from adoptees. Due to sealed records, it is tedious or nearly impossible for adoptees to acquire enough information to make this contact. To organize such contact without going through the legislation, an adoptee either has to spend thousands of dollars convincing an agency middleman to do a search or depend on fickle online adoption registries.
Another false assumption is that most adoptive parents discourage birthparent searches, in fear that their children may be “taken away.” This insecurity, triggered by largely publicized, freak cases in which birthparents “steal back” adoptees, does not represent well the attitude of the majority. From many prospective adoptive parent conferences and seminars, I have found that the greater part of adoptive parents would support their children’s needs to search for their roots.
It was also assumed that adoptees would have no interest in their origins—that they would be content with the history given to them by their adoptive families or “ungrateful” if they weren’t—when, in fact, adoptees value every moment of their histories from the moment of their birth, not from the moment of their adoption. Adoptees are outraged that sealed records wipes their personal histories clean and to be presented as blank slates upon which adoptive parents could write. It is a very natural curiosity and an innate right to know one’s identity and roots, which seems not to be reason enough for adoptees to retrieve information even in conditional access states. Adoptees often joke about the unfeasibility of retrieving records. “Your records have become an X-file. The truth is out there.”
The modern attitude of the triad conflicts with the Depression-Era attitudes resurrected by sealed records laws. The greater part of all three groups support the opening of records and adoptee rights. The laws have lived out their purpose to “protect” the triad from stigma. So why are records still closed?
Sealed records lobbyists, comprised of pieces of the social work industry, adoption industry and legislature, argue that opening records would raise abortion rates and lower adoption rates. They claim that young pregnant women would choose abortion over adoption if their birth children would be able to discover their birth mothers’ names in the future. This, they say, would lead to a decline in adoption rates because adoptive parents would fear their children gaining access to their own birth records. These claims are unsubstantiated and are countered by statistical evidence to the contrary. There is evidence that abortion rates are not higher and are in fact lower in open records states than in states with sealed records. It is also shown that states and countries with open records have seen no decline in adoption rates.
Sealed records activists also believe that open records would violate a birthmother’s privacy and right to anonynmity, on the assumption that all adoptees would use records to seek contact with birthparents. However, the right to privacy is not found specifically within the United States Constitution, and our nation’s courts are most definitely clear on this issue: the right to privacy does not extend to withholding birth information from the very person to whom it primarily pertains—the adoptee. Using our laws to deprive one group of their rights in order to protect others relegates adoptees to a lesser status than their birth parents. What makes this argument extremely insubstantial is the fact that the creation of sealing records was never intended to protect birth parent’s privacy in the first place. The laws were focused only around the adoptive family, sealing records not upon the relinquishment of children but upon their adoption. This imaginary conflict, pitting the rights of adoptees against the privacy of birthparents, is a recent development, to be used at the disposal of the sealed records supporters.
Ironically, the people who benefit most from sealed records are not any of the members of the adoption triad, but the sealed records lobbyists. Well-funded and well-connected lobbies representing a number of adoption agencies and lawyers have a vested interest in keeping these records closed. Depriving adult adoptees of their rights will presumably prevent the discovery of very controversial practices such as baby-selling, coercion and fraud of both birth parents and adoptive parents which are hidden in the sealed state records. These lobbies have created an obstinate, lucrative infrastructure that has been hard for open records activists to circumvent.
The United States and Canada remain far behind this issue internationally. Although each country, and often areas, individual cities or even agencies within countries, has their own individual laws pertaining to this issue, there are only a handful of countries that have closed adoption records. Since 1930 Scotland has had open adoption records and England has had open adoption records since 1975. Adult adoptees can access their original birth records in many nations including Vietnam, Taiwan, Sweden, The Netherlands, Germany, South Korea, Mexico, Argentina and Venezuela to name a few. The problem internationally is that in third world countries and in countries affected by war and the shame and guilt of unwed mothers, birth records often don’t exist because children are largely abandoned at churches, orphanages, parks and train stations by birthmothers who are stigmatized in countries where women have few rights and unwed mothers, none at all. However, in many countries where birth records exist, adoptees are legally given full access to their original birth records.
It is essential that adoptees have the same civil rights as those who are not adopted. Complete access to their birth records brings them equal status under the law and is their civil right. Additionally, there should be no stigma or shame placed on a birth mother, on an adoptive family and certainly not on the child born to an unwed mother, and opening adoption records is the first step toward eliminating the secrets which lead to this perception. In the best possible world, adoptions would be open, with birth families and adoptive families working toward the best interest of the children. There would be no closed adoptions or closed adoption records and those adopted before the creation of open adoptions would have full legal access to their birth certificates and all adoption, medical and familial records. There would be no stigma. There would be no shame. Adoption would simply be an alternate way to create a family.