Monday, April 25, 2011

Student Guest Post: Open. Closed. Or somewhere in-between?

by Kate

For a while now there has been an ongoing debate concerning the adoptees' access to their records, whether they should have full access, no access, or a type of controlled access. The information at the center of this debate includes:
 the adoption decree

 information about birth parents and their families gathered during pre-placement interviews

 the Original Birth Certificate
There seems to be a trend at this time to move (slowly) toward more transparency for the adoptee. The following states offer some degree of transparency if not complete open records:
New Hampshire
New Jersey
There are often stipulations on who is entitled to have their records in most of the states listed above. For instance, while Alabama is completely open, Iowa only allows access to those records that were finalized prior to 7/1/1941.

I am not an adoptee nor have I adopted so I can't speak from personal experience on this matter but I do wish to briefly relay the arguments on both sides.

To grasp what we are talking about here, I can explain it this way, if I were looking to get my vital information such as my birth certificate, I could do it in person for a nominal fee, no questions asked; or not have to leave the comfort of my own home by paying the fee to a service or a state office that will then happily send it on.

For an adoptee in a closed records state the court has sealed this information and they are denied a chance to even look at their original birth certificate much less get a certified copy. Instead of being given their original birth certificate they will receive an "amended" birth certificate with only their adoptive parents name. They will not know their birthparents' names nor will they even know their original name or if it differed.

The amended birth certificate is what the adoptee uses her entire life as a non-adopted person would use their unaltered birth certificate; for school admissions, passports etc. Naturally most adoptees are curious about their origins, for a multitude of reasons ranging from the physical to the emotional. So why were they sealed in the first place?

Until the early part of the last century birth certificates were treated as public records. However, about eighty years ago, around the 1930s there was such a stigma and an attitude of shame that surrounded the idea of adoption that state governments began sealing the records to protect the birth families, adopting families, and the adoptees from the social stigma associated with the birth family such as poverty or addiction, depravity, or mental illness (often women who became pregnant outside of wedlock were diagnosed as mentally ill just because they were pregnant out of wedlock). There was also a pervasive idea that the adoptive family had to be protected from the birth family and their possible malicious actions or effect on the child. In essence the court wanted to forcibly "protect" the privacy of all parties involved.

Many of the stigma of those times past either no longer exist or have been diminished substantially, so in today's society we are asking what is more important the child's natural curiosity and sometime actual need to know or the "privacy" of the birthparent?

Some of the current arguments for closed records:
• The adoptive family is more than adequate to satisfy the identity needs of the adoptive child, so they shouldn't need knowledge of their birth family

• There are voluntary consent registries the parties can easily find out what they need to know that way.

• DNA testing is able to provide more information about the adoptee's medical predispositions than the medical records of her birthparents.

• You can confidentially get medical records through the court with a "showing of good cause" - no court has as of yet set a test to determine what "good cause" is

• There will be less adoptions because birthmothers can't trust that their anonymity will be protected
Some of the current arguments for open records:
• The adoptee needs to know where they come from and that access to their part of your ancestry is a part of that

• There are very low match rates for the voluntary consent registry- 2% in 1998. These low success rates are likely caused by lack of knowledge of their existence, both parties have to register, which requires the adoptee knowing she is adopted; the registry requires accurate information concerning the child's original name, and proper place and date of birth which may or may not be accurate on the amended birth certificate. So essentially you have to produce information that you don't have to receive information that you don’t have

• Medical histories, Geneticists say that there is no profile of genetic tests that can retrospectively determine what their family might have been carrying. Most genetic tests originate out of the knowledge of a predisposition for a certain trait based upon family history

• There has been no statistical proof in states that have open records that that has been the cause of a lower adoption rate.
These are all arguments that have been brought up at various times throughout this debate, some of them have merit and some of them don't. Firstly though, I suggest we look at the word "right." Right, I believe, is one of the more misused words in our vocabulary. In this debate you hear statements like, "Birth mothers have a right to privacy" or "Adoptees have a right to their records." But do they really? What is a right?

Our fundamental rights, those enumerated and protected by Federal constitution and can be found in the Bill of Rights, such as the right to practice or not practice a religion of your choice; the right to a fair, speedy and public trial; the right to speech, etc. We certainly know that the "right to information" is not one of those protected rights; is privacy?

Privacy, as described in Griswold v. Connecticut, 381 U.S. 479 (1965), is granted by the specific guarantees in the Bill of Rights that have penumbras formed by emanations from those guarantees which give them substance. Essentially saying that there are "zones of privacy" such as right of association, the right to be secure in one's person, house paper, effects, etc.

The Tennessee Supreme court answered the question of privacy as applicable to the privacy of the birth family by saying that Tennessee constitutional law provides the right to privacy to encompass the right to procreation and the right to care for one's children without unwarranted state interference but those rights differ fundamentally from the decision of whether to surrender a child for adoption. The right of adoption is statutory (not fundamental). It was created to protect the interests of children whose parents are unable or unwilling to provide for their care, and not to advance a procreational right to privacy of the biological parent.

So from that opinion we can glean that the birthmothers "right to privacy" is not one that is constitutionally protected but one that is statutorily created….kinda. There is still no "statutory right to privacy" in the adoption papers, there is no right of privacy promised to the biological mother, and the adoption is not contingent on that right to privacy. However, there may be a violation of a privacy right to non-disclosure of personal information without the birthmothers consent; but still not a constitutionally protected right.

What it comes down to I think are the reasons for and against and as stated before I think there are arguments on both sides that have merit. If it were up to me I would say that the records should be left open, because you do need access to your family medical history and you do need to be given the opportunity just as everyone else is, to know where you came from. That is a part of what makes us who we are.

Having said that, I don't know every birthmother's situation, obviously it wasn’t ideal or the adoption would likely have not taken place, maybe there is a very good reason for her to not have contact with her child. So maybe a compromise would be more ideal. Some states allow adoptees to see their records but according to the wishes of the birthparent, don't permit contact. That might be the solution here.

What do you think?

Borrowing heavily from:
The Open Records Debate
Video by Jean Strauss:  Vital Records


Anonymous said...

I enjoyed the commentary.

Just a note that when they started sealing birth certificates for adoptees it was to seal it away from public scrutiny and some/many/most (unsure) of the original sealed laws specifically stated the OBC was not sealed from the adoptee themselves.

No one can force a relationship so there really does not have to be conditions attached. Just as in every day life if someone who is bothering you who doesn't understand the concept of NO then there are restraining orders that can be applied for. This law is in place so conditions are not required in my opinion.

The second aspect to consider 'conditions' is the 'good cause' and unsealing - once the judge has unsealed your records there are no rules or conditions placed. In my opinion you can't have different rules about conditions for some but not others.

BTW: my records were unsealed for 'good cause' so at least in the state I was born in there are no conditions.

Anonymous said...

A very thorough and well stated summary of the arguments for and against making adoptive records open.

As an adoptive family that has taken great strides to find our children's birth families/medical histories, etc. overseas, I support making that information accessible to all.

As a personal friend to a First Mother who wishes to remain anonymous to the child she gave up at birth, I sympathize with her views also.

*sigh * seems to me there has to be a middle ground somewhere.

Truly Blessed said...

This was a very well thought out post and you presented many salient points on both sides of the "open/sealed" arguments.

My comment has to do with this sentence/argument:

"I would say that the records should be left open, because you do need access to your family medical history..."

But just because the information on a birth certificate is made available, that doesn't necessarily mean one might have access to family medical histories. Even armed with biological parent's names, dates of birth, etc., there is no guaranteed way one might get medical information -- especially today with the HIPPA laws that are in place.

In the end, though, I'd have to side with the adoptee's right to access the information and support those who wish to make all adoptee's birth certificates "unsealed".

Truly Blessed said... the above comment , I should have written "HIPAA" (rather than "HIPPA").

Linda said...

"Some degree of transparency?" Seriously?

These are the states that allow an adoptee unrestricted access to their OBC & the years discrimination against adoptees ended. (original birth certificate)

Alaska - never sealed

Kansas - never sealed

Oregon 1998

Alabama 2000

New Hampshire - 2005

Maine - 2007

"Transparency" is a joke. So are tiered access states, states with vetoes and states with compromises.

Adoptees who are denied their original birth certificates are discriminated against. Period. Our original birth certificates belong to US. It is OUR own personal information- it doesn't belong to our adoptive parents, and doesn't belong to our first parents.

OBC's were sealed as a courtesy to adopters, to quiet their fears of the big bad birthmother coming back. First Mothers and fathers were never promised "confidentiality" or "anonymity".

MANY adoptees, including myself CANNOT use our amended birth certificates for passports, due to post 911 Homeland Security & state department rules. And now, the ridiculous proposals the birthers want to implement would make it virtually impossible for an adoptee to run for president, if passed into law.

Almost every adoptee I know has found their first parents WITHOUT their OBC. And, even with an OBC, it does not give the right to an adoptee to know their first family's medical history. DNA testing is a tool that is used against adoptees. Not every disease has a genetic marker. Most do not.

Our original birth certificate has NOTHING to do with reunion or "medical history". It has to do with US...the adoptee.

"Adoption records" is a term that needs to go away. Our records don't need to be released to us, unless the information pertains to us. We do not need to know how many stitches our first Mother had, or the details of our ap's homestudy. Using the term "adoption records" muddies the waters of adoptees obtaining their OBC.

Robin said...

I am so tired of this endless round and round about adoptees having access to their OBCs. Does anyone ever mention that it is the adoptee whose life was most affected by adoption, who loses knowledge of his/her parents, ancestry and medical history and that the adoptee NEVER HAD ANY SAY IN ALL OF THIS? Adoptee decrees are written, in re: adoption, which means that one party to the action was not competent to have a say (i.e. was an infant or child). Well, I am perfectly competent to have my say NOW and I never agreed to any of this. Also, since the person writing this says she is not an adoptee, can she really understand what it is like to have this vital information withheld and to be discriminated against for nothing except most likely being born out of wedlock?

Robin said...

Oops, meant to write "adoption" decrees, not adoptee decrees.

dawn said...

I agree that describing anything but unconditional OBC access as open or transparent is inappropriate and kind of jarring, actually.

I was born on the theoretically more open side of Michigan adoption law, and there was nothing transparent about the process of trying to access my OBC. I started by cutting a personal check addressed to a woman who worked through the adoption agency as a CI (I tried to go through the county court, but they blew me off with a sob story about how they would have to go all the way down to the basement and look at microfilm to find my records). She then theoretically contacted the state registry in the capitol and theoretically found that my mom filed a denial so I can't get my birth certificate. I believe she was truthful with me, but I have no actual proof that she did anything beyond cash my check. I have nothing official from the state, only a sketchy letter between the agency and my adoptive parents from 30 years ago, saying that my mom actually wanted my record closed.

And as an aside, not allowing me my birth certificate did not protect my mother's supposed privacy in the slightest: I was able to ask my birth dad who she was because the agency rep gave me my dad's full name (he signed to relinquish me, but did not sign anything to close my records).

Kris said...

Adoptees should have access to their OBC. Period. It is a legal document that belongs to them. There is no argument that changes taht fact.