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OPENING ADOPTION RECORDS February 11, 1997 |
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Return to the Open Adoption forum's top page.
Questions asked
in this forum:
Would open records mean more custody fights between birth mothers and adoptive parents? 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.
OUTSIDE LINKS
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 .
Lynne Edwards of Richmond, Virginia, asks: The truth is that tens of thousands of birth parents had no choice about privacy or confidentiality. Check the Internet, periodicals and newspapers and you will realize that many of them would have chosen some degree of openness if that had been an option. What's the status in Kansas and Alaska? Have there been law suits for invasion of privacy? Have adoptions decreased?
Nancy Henderson of Boise, Idaho, asks:
What data study currently in writing shows that opening adoption record will cause the abortion rate to rise? What is the source of these findings?
Mr. Bill Pierce of the National Council for Adoption responds:
Lynne, your question is really an allegation followed by several questions. First of all, it is not true that "...tells of thousands of birth parents had no choice about privacy or confidentiality.” Although I am very technophobic and therefore have, not spent the time on the Intemet that would have been ideal, I certainly have read the statements by those who state that they would have chosen some degree of openness had there been an option.
The fact is that there has always been a very substantial number of direct placements in the U.S. without the assistance of attorneys, and in those placements women could control the degree of contact that took place. Just as in the past and at present women travel to different locations in order to maximize their choices, so also did women in the past. If a woman lived in a state where direct placements were not legal all she needed to do was contact an attorney in a state where such placements were legal and she would be given financial assistance and other help to carry out her plan for an adoption with more "openness" than in another state.
A woman's constitutionally protected right to travel is just as valid for adoption planning as it has been for abortion planning. Just as a woman could arrange to go to a different jurisdiction for an abortion, even when abortions were illegal in her own state, so also could she arrange to do so for a legal adoption that had elements of "openess."
I am not certain what you mean by "the status of Kansas and Alaska," but these are two states where adopted persons may obtain a copy of their unamended birth certificates upon reaching majority. If the thrust of your question is that you doubt that there has been any impact on adoptions ask yourself why Catholics for a Free Choice discussed the matter of a child showing up on a doorstep in its publication. The reason is obvious, and needs no scientific proof because it's just plain common sense: given a choice between a decision that will remain confidential and private or one that is subject to discovery, many people will pick from available confidential choices.
Just look at your local Yellow Pages under the listings for abortion services and you will find words like "confidential," "private" and the like, in those listings. You will find those words in the Yellow Pages all over the U.S. because not every woman who is pregnant wishes to discuss the fact of her pregnancy, the circumstances, the male responsible, or a host of other questions that can and do come up.
Specifically, however, you ask whether there have been law suits for invasion of privacy, and I take it that you mean in those two states. I am not familiar with all of the law suits that have been filed in those two states, but frankly I doubt that many people would file a law suit about invasion of privacy because, in so doing, they would expose the very facts that they axe uncomfortable about having others know.
I do know of an Oregon case, Humphers v. First Interstate Bank, (11 FLR 1282), where a physician's estate was successfully sued when an adult adoptee was enabled to learn the identity of her birth mother. He was held to have breached his professional duty of confidentiality, subjecting him to liability for the emotional distress of the birth mother. Undoubtedly, there have been other cases - most settled out of court and not reported. Certainly there are thousands of people who are at risk for law suits because their actions, whether intended or not, have resulted in the infliction of emotional distress on people who did not wish to be contacted about an adoption.
As to adoptions decreasing in these states, one would need to have trend data to be able to properly answer that question and the U.S. does not have the kind of domestic adoption statistics that are maintained by other countries. Indeed, only our organization has sought to collect and publish data which have been reviewed and subjected to the work of statistical analysis. We published data for 1982 and 1986 but we have not had the $50,000 or so it would cost to publish later data. We did publish, in our 1989 Adoption Factbook, a discussion of state rankings under our trademarked "Adoption Option Index."
The index for Kansas for 1986 data was 14.2 (10.0 for the U.S.). The index for Nebraska was 15.7, for Oklahoma 25.3 - two bordering states with higher numbers. The other two bordering states had lower numbers: Missouri was 11.8 and Colorado was 9.5.
Since Kansas has never had sealed records, it is not possible to determine what the effects may have been if confidentiality had at one time been part of the Kansas law. As for Alaska, the change in law took place in 1986, so pregnancy decisions and adoption numbers would probably not have been impacted until 1987. Furthermore, we see the adoption choice as a complex issue - there are so many variables in addition to the presence or absence of a sealed records law that one cannot attribute with certainty all of a given effect (lower or higher adoption numbers) to one variable (availability of an original birth, certificate at majority). The reason why may be as simple as this: if a woman lives in a state where there is no confidentiality and she does not wish to travel to another state to preserve her anonymity, she may simply give a false name.
And to Nancy Henderson:
Nancy, our organization does not take a position on abortion, but we certainly pay attention to those experts and organizations which do take positions on the subject to see what they say. Here is what Dr. Jack Willke, the physician who headed the National Right to Life Committee for many years, and who still is very active internationally as well as with Life Issues Institute, said in a piece that appeared in the April 9, 1996, editorial page, of The Cincinnati Post.
"Strong confidentiality rules encourage adoptions" was the headline.
The Post editorial, "Making adoption easier," properly compliments the new adoption law in Ohio. This does much to help to expedite this humanitarian answer to unwanted pregnancies. The Post makes two comments, however, that indicate a certain approval of access to records. Perhaps a few relevant points are needed here.
Access to medical records has never been sealed in Ohio. Such information has always been available through the probate courts.
What has been heavily lobbied has been to open previously sealed and previously guaranteed-to-be-confidential records. Certain birth mothers have wanted these open. Certain adopted children have wanted these open.
I have been in the leadership of the pro-life movement for over 25 years, traveling nationally and internationally. For many years I had considered such search groups to be pro-adoption, but with that specific goal in mind. Over the last ten years I have become completely convinced that their goals are destructive of adoption. I now call such search groups, 'anti-adoption,' and with good reason.
Some years ago England opened previously sealed confidential records. Australia joined them. Since that time, adoption, as we know it, has disappeared in both of those major countries. My contacts there, who are deeply involved nationwide in saving babies from abortion and helping to place them for adoption, tell us that adoption has been replaced by 'defacto long-term foster care.'
I am told consistently by pro-life leaders in these two countries that there are still many women who would place their babies for adoption and not abort except for these new laws. Abortion gives them permanent confidentiality. If adoption could guarantee permanent confidentiality, they would carry to term and place their babies. Since adoption no longer gives permanent confidentiality in these countries, they abort their babies."
Dr. Willke's article goes on three more paragraphs, but I believe the essence of his point comes through clearly. Our organization had an article on page nine of our Oct. 1995 newsletter, National Adoption Reports, entitled "What happened to adoption in England and Australia when adoption records were opened?" that told the story statistically.
"By 1975, there were only 23,000 [adoptions], representing an eight percent decline in seven years of liberalized abortion. The decline following the opening of adoption records was 67 percent in ten years." In the U.S., which also has legalized abortion, adoptions suffered no such decline. Dr. Willke contends that people in a position to know in England and Australia attribute the decline in adoptions to the elimination of the choice of confidentiality for women planning adoption. The statistics seem to bear him and his colleagues out.
We at NCFA are also aware that this connection of opening adoption records and a decrease in adoptions and an increase in abortions is troubling to those who support opening of records. Increasingly, we have seen our opponents producing their own "statistics" and charts to try and prove that Dr. Willke and his colleagues do not know what they are talking about in regard to abortion. A careful examination of all of the data by objective researchers bears out Dr. Willke's statements.
Dr. Anne Babb of the American Adoption Congress responds:
Since adoption records are available to adult adoptees via court order even in "closed records" states, confidentiality or "privacy" (the right to conceal one's identity as a parent) has never been guaranteed to any birth parent. In fact, in most closed records states, when an adoptee's records are opened by court order, no notice of the birth parent is required, birth parents are generally given no opportunity to be heard, and the birth parent has no right of appeal. Such laws can give birth parents no reasonable expectation that their identities will always be concealed from the adoptee.
Ms. Edwards' assertion that many birth parents would have chosen some degree of openness had it been given as an option is supported by the the scientific, social and legal record. The vast majority of birth parents -- as many as 95 percent -- welcome contact from their surrendered children. In five states surveyed for their records on adoption search and reunion (Arizona, New Jersey, New Mexico, North Carolina, and Washington), 94.9% of birth parents welcomed the contact of their adult adoptee children who searched for them. Only 5.1% refused the initial contact.
Finally, Ms. Edwards' question about open records states is a good one. Neither state she mentioned, Alaska or Kansas (in which adoptee access to the birth certificate has never been restricted), has ever had an invasion of privacy lawsuit filed by a birth parent against an adoptee who made contact or obtained his or her original birth certificate. In fact, in the states in which adult adoptees are granted access to adoption records, adoption rates are higher and abortion rates are lower than in sealed records states.
The National Center for Court Statistics reported that the 1992 rate of adoptions per thousand live births were 31.2 nationally, 53.5 in Alaska and 48.4 in Kansas, two open records states, but lower in surrounding states with sealed records laws (CO, 26 .0; MO, 27.5; NE, 42.4; and OK 47.6).
[Source: Flango & Flango, National Center for Court Statistics, "How Many Children Were Adopted in 1992," 74 Child Welfare 1018, 1021-22 (1995)].And to Nancy Henderson:
The National Council for Adoption (NCFA) has claimed that open adoption and open adoption records cause a concomitant rise in abortion rates. This claim is unsupported by the evidence. The AAC obtained the birth, abortion, and adoption rates in Alaska and Kansas as well as for the four states surrounding Kansas from the Alan Guttmacher Institute. The abortion rates for Alaska and Kansas are both less than the rate than for the United States as a whole -- 19.4 and 12.7 abortions respectively , by residents, divided by numbers of women aged 15-44, in thousands. The national abortion rate was 25.8, while the rates for surrounding states were 21.9 for Colorado, 17.0 for Missouri, 13.9 for Nebraska, and 12.7 for Oklahoma.
The NCFA has also alleged that declines in adoption rates in England and Australia were caused by the opening of adoption records in those countries. The facts, though, are that England, Wales, and New South Wales (the most populous state in Australia) show that opening adoption records caused no decline in adoptions. In fact, in England and Wales the effect of opening adoption records was to reduce the decline in adoptions, or to increase adoptions over the numbers that otherwise would have been obtained.
Finally, published data from England and Wales show that abortions actually slightly decreased after adoption records were unsealed in those countries. Full information about these statistics and sources of our information can be found on the AAC Web page at http://pages.prodigy .com/adoptreform/aacorg.htm
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