OPENING ADOPTION RECORDS|
February 11, 1997
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in this forum:
How do open records effect rates of adoption and abortion? Should there be a way for adoptees to find out their family health records without making contact with their birth-parents? Not all adoptees want to find their birth-parents. What about adoptees and birth-parents who value their privacy? A woman who was raped askes whether there is a way to find out about her child without actually making contact? This topic inspired many emotional stories and comments. View some of the additional comments.
Online NewsHour Links
January 15, 1997: Lee Hochberg looks at the controversy over opening adoption records.
The NewsHour coverage of Youth issues.
Adoption.com seeks to provide a central location for all adoption information.
The American Adoption Congress is working to reverse laws that seal adoption records .
Joyce Ann Jaillite of Independence, MO, asks:
My fear is that what we have seen happen in a few widely publicized cases of children being returned to biological parents years after the child has been placed in the adoptive home (rightly or wrongly) is moving families away from adopting children born in the U.S. I would find it hard to trust the system here, even if I know these cases to be the exception rather than the rule. If state records are opened, will this have an impact on this potential removal of children from adoptive parents?
Bob Moore of Spring Grove, PA, asks:
I am the adoptive father of a 24 year old daughter. My wife and I adopted her when she was 51/2 months old. She has truely been a blessing to my life. I don't think that there are any risks involved by opening adoption records provided there is a clause that would prevent the birth parents from demanding that the child be given back to them. Is there such a clause in the proposal? What risks are there in the proposal?
Dr. Anne Babb of the American Adoption Congress responds:
When we talk about "open adoption records," we should first define what we mean. Adoption records in many states are judicially sealed upon a child's adoption and available to the adult adoptee only by court order for good cause. When the child is adopted, the original birth certificate is sealed and an amended birth certificate showing the adoptive parents as the original parents takes its place.
Some states, such as Kansas and Alaska, have open adoption records, meaning that the adult adoptee can obtain his or her original, unamended birth certificate. In these states, because the adoptee is an adult when access to such records is granted, the problem of children being returned to their biological parents years after the child was adopted cannot arise. When we speak and write about "open records," what we mean by that is access to the adoptee's original birth certificate by the adult adoptee.
In each highly publicized case of children being taken from their adoptive parents and returned to their birth parents, the situation involved the violation of a birth parent's due process rights. The way to solve this problem is to respect the due process rights of birth parents and to enact laws that uphold the best interests of children. We cannot do the latter until we achieve some consensus on what serves the best interests of children. Access to adoption records for adult adoptees is not an issue that can result in children (minors) being returned to their birth parents.
And in response to Bob Moore:
As an adoptive mother, I can understand Mr. Moore's love for his daughter and his interest in supporting her rights to having records pertaining to her birth. The proposal that open adoption records ought to be the norm in the United States, as they are in most other countries , is not strictly a one-size-fits all proposal, although we support adult adoptee access to the original birth certificate. Although we speak of the "child welfare system," we know that in actuality at least 50 separate child welfare systems exist in the United States. So when we talk about a proposal for open records, what we really mean is a blueprint that can and should be modified by the states, depending on the will of the citizens of that state. Some states may give access to adult adoptees only at age 18; others may raise the age to 21. Some states may include provisions for contact vetoes, others may not.
Since we are talking about access to their original birth certificate by adult adoptees, the possibility of birth parents reclaiming their children is not an issue. What is an issue is what the Sixth Circuit Court of Appeals, in its ruling today in favor of Tennessee's open adoption records law, called the "interest of children in knowing the circumstances of their birth." All Americans except for American adoptees in most states have a right to know the circumstances of their birth and the names of their original parents.
The American Adoption Congress, along with groups such as the Child Welfare League of America, National Association of Social Workers, North American Council for Adoptable Children, and other national adoption, advocacy and child welfare groups support the right of adult adoptees to know their origins. This right should not be subordinated to the interests of a minority of birth or adoptive parents in concealing such information from their adult children.
Mr. Bill Pierce of the National Council for Adoption responds:
Joyce, your concerns are well-founded. First consider the respondents to a Survey of Parents Completing INS Orphan Immigration Processing during Fiscal Year 1991, in response to a request made by U.S. Sen. Arlen Specter (R-PA) to the U.S. General Accounting Office (GAO). Sen. Specter had asked GAO to review the requirements and procedures that U.S. citizens must follow to adopt a foreign child. GAO reported back on April 26, 1993, and the report number is B-251093, GAO did a simple random sample of 250 children and did telephone interviews with the families who adopted these children. GAO deleted eight families from the sample, so the adjusted sample size was 242. GAO was able to contact and interview by telephone 204 of the families, in 84 percent response rate. The telephone interviews were conducted between. mid--March and mid-April 1992.
On page 59 of the GAO report is a table with answers to the question "Why did you choose inter-country rather than domestic adoption?" 203 respondents answered this question. The sixth most important reason, given by 20 respondents, was: "Families were concerned about birth parent rights in domestic adoption." GAO reports "the 95-percent confidence intervals to quantify the statistical uncertainty associated with our results. If our methodology was replicated, chances are 19 out of 20 that the results would be within these confidence intervals." It should be kept in mind that this was one of the questions in the surveys where Parents could choose more their one response category.
This 1992 study reflects the experience of our member agencies and others. I have talked with who report that, increasingly, U.S. prospective adoptive parents are so concerned about birth parent rights and other features of U.S. adoption practice that they are turning to inter-country adoption. I believe that if the study were replicated today, after the "Baby Richard" case and similar tragedies, at least 10 percent of the respondents would answer in a similar way.
If state records are opened, there could be an impact on the potential removal of children from adoptive parents because there may have been legal technicalities which were overlooked at the time of the adoption which attorneys or courts today would point to as the reason to undo an adoption. For instance, the Indian Child Welfare Act (ICWA) has certain requirements that have not always been followed, usually because people were unaware of its provisions or those who had minute amounts of Native American heritage were not knowledgeable about the application of ICWA to them.
More likely, if records were opened, it could provide the means for many birth fathers to assert that their rights were not properly terminated. And if the birth parent's rights are not properly terminated, as the Baby Jessica, Baby Richard and other cases demonstrate, an adoption can be overturned and a child can be ripped from the arms of the only parents the child has ever known.
At the very least, if state adoption records are opened, this would provide a rich body of information for those who may be interested in litigation - whether frivolous or not - to mine.
And in response to Bob Moore:
Bob, you speak for most adoptive parents when you say that your child has been the blessing of your life. The problem is that there are many things that can happen if records are opened that can negatively impact a child's life, or the life of that family, which are less traumatic than the birth parents demanding that the child be given back to them.
Directly to your question, to the best of my knowledge there is nothing in the various proposals which have been circulated that guarantees that the information that will be disclosed cannot be used to help someone reclaim a child.
You ask what risks there are in the proposal. We see many risks. The first and most obvious risk is that women who are pregnant and deciding whether or not to have an abortion will have the choice of adoption closed off to them. Consider, for instance, these sentences from a pamphlet entitled Abortion, A Guide To Making Ethical Choices, by Madorie Reiley Maguire and Daniel C. Maguire, published by Catholics for a Free Choice (ISBN 0-915365-00-6).
"Before you decide on adoption, make sure you have examined your thoughts, and feelings very carefully...How will you react twenty-one years from now if new laws allow adopted children to be given the name of their birth mother when they come of age, and this child arrives on your doorstep?"
Since 1983, this organization which strongly favors abortion, has been suggesting that the mere threat of new laws being passed which retroactively change, the rules on opening adoption records is something that a woman considering adoption should keep in mind. The message is clear: if confidentiality and privacy are important to you and if you want an anonymous way of dealing with your pregnancy, there is only one choice: abortion. With abortion, one never needs to worry about a child arriving on your doorstep. With adoption, one cannot trust the states to keep the promises made to pregnant women and they may pass new laws removing the privacy and confidentiality guarantees that were promised.
Another risk is that even more families will be disrupted with wholesale opening of records than has been the case at present. The stories are quite familiar to us here at the National Council For Adoption. A young man is contacted by his birth father and, out of politeness, agrees to a meeting. The birth father wants a relationship, but the young man does not.
Eventually, after being pressured and subjected to various guilt trips, the young man asks the birth father to back off. The birth father refuses to do so. Indeed, it is a matter of public record that one of the founders of one of the most aggressive groups in the anti-adoption movement is a birth parent, tracked down a teen-age child but the child, after all the trauma and disruption, did not want a relationship. Another leader of an anti-adoption group is person who found a woman who she says is her birth mother, but that woman denies this and does not want a relationship. In both instances, opening records - outside the law, in both instances - had very negative results for the parties involved. No one was happy.
The biggest risk is that there will be a continuing erosion of the right to privacy that our courts have repeatedly upheld. Privacy and confidentiality are at the heart of many of our society's institutions and social interactions. Think of what the result would be if one could not rely on privacy in one's dealings with one's physician, one's attorney, one's accountant, one's clergy. Well, one cannot rely on privacy now in most dealings around adoption. Undermining one area where privacy is critical has ramifications for all areas.
That is why one of the best legal experts in the area of privacy, a New York attorney who formerly played a major role with the Privacy Rights Project of the American Civil Liberties Union, Jerome Gutman, has spoken out in public on MS-NBC about the dangers inherent in a newly-passed Tennessee law. Mr. Gutman rightly questions what the impact on the constitutional right to privacy will be if such a law is allowed to be implemented.
Space does not allow me to discuss in any detail all the risks involved.