Here's a quick guide to understanding the issues around original birth certificates and adoption records.
Are we talking about changing state statutes to make original birth certificates, relinquishment and adoption records fall under "open records" laws?
No. "Open records" - a misnomer in this context - is a term generally associated with state Sunshine Laws which make records available to the general public under the Freedom of Information Act (FOIA). State Sunshine Laws specifically exclude adoption records, and rightly so. Instead, we're talking about access to original birth certificates and certain relinquishment and adoption records for adult adoptees, fostered persons, and their legal representatives. We also advocate for birth/first parent access to copies of documents they sign(ed) in the course of relinquishment of their parental rights.
Q: What's wrong with most current state statutes regarding adult adoptee access to original birth certificates (OBC) and certain records pertaining to the adoption?
Many state adoption laws are still built on antiquated thinking and harmful policy assumptions from the mid-20th century. They were focused on the front end of the adoption, and therefore short-sighted in terms of their impact on adult adoptees, who:
Were severed from knowledge of their ancestral connections, sometimes with significant, even fatal psychological and emotional effects.
Are treated inequitably with regard to how they can obtain records. No other group of citizens must obtain a court order or hire and obtain permission via a third party in order to research genealogy.
Are falsely stigmatized as a perceived potential threat to the privacy or well-being of the people who gave them life, or inherently incapable of handling knowledge of their roots in a responsible, tactful manner.
Are often commodified by a system that evolved from what began as a sometimes compassionate (and sometimes abusive) religious or social service to find homes for orphans. Today, adoption is a billion-dollar "non-profit" global industry. When viewed as an economic system (administered by both caring professionals, and at times, corrupt mercenaries) it positions birth parents as the manufacturing sector, agencies as the broker, adoptive parents as the buyer, and adoptees as the product, historically tilting laws in favor of the interests of agencies and adoptive parents.
Are relegated to the role of perpetual minor children, disallowed the same simple, straightforward process as all other non-adopted adult citizens seeking to obtain a copy of their original, unaltered, unredacted birth certificate.
Q: What about confidentiality?
A: This is an important question, with a multifaceted answer:
Confidentiality and privacy from the general public is vital in adoption proceedings, and should be preserved. Confidentiality from the general public and anonymity from one's own child are separate issues.
Higher courts in Oregon and Tennessee have ruled that because a birth parent does not have a fundamental right to have their child adopted, they cannot have a correlative fundamental right to have the child adopted under circumstances that guarantee anonymity from their own offspring, even if they do not desire contact.
It is the adoption, not the relinquishment, that seals away the OBC. Adoptions disrupt, and some children are never adopted, leaving the OBC as the only identity document.
Courts have always been able to open a sealed file without birthparent consent, though it is a daunting, costly and usually unsuccessful endeavor for adoptees.
No one has ever produced a relinquishment document that guaranteed a birth parent anonymity from their own offspring.
Consumer DNA testing has essentially eclipsed the notion that a sealed birth certificate is any assurance of secrecy. Instead, today, direct access to records for an adult adoptee or descendant provides a more tactful, discreet way to learn about one's roots.
Q: Have adult adoptees ever had direct access to OBCs and related records in the past?
A: Yes. Legislative history reveals that adult adoptees could (or by statute, should have been able to) obtain a copy of their OBC from statehood, generally until the mid-20th century. For example, Wisconsin first sealed its original birth certificates from direct access by adoptees in 1929, while Alabama did not do so until some 40 years later. Current WI law makes a distinction between adoptions that took place before or after 1982, and allows adult adoptee access upon a court order, mutual consent of the parties, or the death of a birthparent. Alabama was the fourth state to repeal its denial of the OBC to adoptees in the early 2000s.
Q: How are states who choose truth and transparency over shame and secrecy addressing this issue? Is there model legislation available?
A: Kansas and Alaska never sealed OBCs from adult adoptees. Since 1995, fourteen more states (AL, CO, CT, HI, LA, MA, ME, MN, NH, NY, OR, RI, SD, VT ) have retroactively provided unfettered access to adult adoptees in model legislation, balancing interests of birth parents via an optional Contact Preference Form. A total 33 states* have enacted a variety of new laws to increase access to an estimated 3.4 million files. It's a growing national trend.
*AL, AR, AZ, CO, CT, DE, HI, IA, ID, IL, IN, LA, MA, MD, ME, MI, MN, MO, MT, NE, NH, NJ, NY, OH, OR, PA, RI, SC, TN, VT, WA, WI
Q: What national organizations endorse access to OBCs and certain adoption records for adult adoptees?
A: The list includes:
American Academy of Adoption and Assisted Reproduction Attorneys
Child Welfare League of America
Concerned United Birthparents
National Association of Social Workers
National Foster Parent Association
North American Council on Adoptable Children
Click here to view their policy statements.
Q: Does this issue have bipartisan support? Why is it "Good Policy for Everyone?"
A: Truth and transparency in adoption is not a partisan issue - it's a human issue.
Good policy does the following things: (1) Protects birth parents from hasty or coerced decisions to relinquish parental rights, and appropriate confidentiality from the public;
(2) Protects adoptive parents from adopting a child about whom they know nothing, enhancing successful parenting;
(3) Provides adoptees with vital information about their ancestry, history and a foundation for healthy identity development and equity with non-adopted individuals in terms of direct access to ancestry information;
(4) Builds in transparency safeguards against unethical or corrupt practices in relinquishment and adoption.
Bills have been sponsored and cosponsored by members of both parties in a variety of states. Truth and transparency in adoption is simply good policy that balances the interests of the parties and helps to protect against child trafficking.