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:

Alabama
Alaska
Colorado
Delaware
Illinois
Indiana
Iowa
Kansas
Maine
Maryland
Massachusetts
Michigan
Montana
New Hampshire
New Jersey
Ohio
Oregon
Tennessee

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