|
|
 |
OPENING ADOPTION RECORDS February 11, 1997 |
|---|
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? How do open records effect rates of adoption and abortion? 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 .
Nicholas Sloane of Melbourne, Victoria, Australia, asks: As an adopted person I believe the only valid reason to contact one's biological parent is to trace any history of serious hereditary illnesses. in order to protect the privacy of everyone involved it should only be available through a disinterested third party.
1. do either of your guests believe this is achievable
2. should it be federal, state or privately run.
3. a free service or for a fee.Nathan Haney of Memphis, TN, asks:
In regards to the medical records argument, even this could have its drawbacks. What would the adoptive parents think about taking on a child whose grandmother was schizophrenic?
Dr. Anne Babb of the American Adoption Congress responds:
Kansas, Alaska, Tennessee, and Hawaii all have adoption records laws allowing for the release of birth records to adult adoptees. The records of these states show that access to records is, indeed, achievable. States have already proved their ability to govern themselves in the release of birth and medical information. The ability of states to govern themselves is critical, in fact, since under our Constitution states have the fundamental right to create their own laws as long as they do not conflict with provisions of the U.S. Constitution.
The essential issue surrounding access to adoption information is that most American adoptees have been prevented from having information about themselves simply because they are adopted. The freedom of information movement during the U.S. civil rights era was initiated by people who considered their civil rights violated when others had information they themselves were barred from having. The issue of unsealing the original birth certificate and some adoption records for adult adoptees can be seen as an ethical one, since giving adoptees equal access to their birth records relieves power imbalances, allowing adult adoptees to more equally share power in society with birth and adoptive parents. The issue is bigger than the availability of medical information available upon an adoptee's birth, because over the years of an adoptee's childhood and adulthood, the medical history of the birth family can and does change.
Adoptees should be able to have access to information and documents concerning themselves that is available to other Americans at the same fees normally charged for provision of such information.
And to Nathan Haney:
Thousands of adoptive parents adopt waiting children every year whose birth parent(s) had a history of mental or physical illness. In fact, having adopted six special needs children myself, I can say that the more information available to adoptive parents, the better job we can do of parenting the children with whose nurture we have been entrusted.
A new tort of "wrongful adoption" has been established whereby courts have found that adoption agencies have a duty to obtain and disclose health and background information about children placed for adoption, and adoption agencies have been ordered to pay monetary damages for failing to carry out this duty. Failure to accurately or fully disclose background, health, and behavioral information about adoptable children has been particularly problematic in special needs and older child adoptions.
Four areas in which an adoption agency could be legally liable for monetary damages:
- (1) intentional misrepresentation of the health or background of the adoptee;
- (2) deliberate concealment of health or background information;
- (3) negligent disclosure of information, or giving information that later proves to be inaccurate;
- (4) negligent withholding of information, or sharing information, but failing to disclose some information so that adoptive parents are mislead regarding the truth.
Damages have been awarded in cases of withholding of information such as that mentioned by Mr. Haney because without such critical information, adoptees and their adoptive families can be put at physical and emotional risk, something we hope to minimize or avoid whenever possible.
Mr. Bill Pierce of the National Council for Adoption responds:
Nicholas, we are keenly aware that for many people the question of a serious hereditary illness is a major concern. That is why, in every U.S. jurisdiction, there is a means whereby me may appeal to a court to obtain such information. The illness may not be real, however. Consider for instance, a book called "Lifeline - The Action Guide to Adoption Search," by Virgil Klunder. This book, which opens with laudatory blurbs from three persons who identify themselves as having board roles with the American Adoption Congress - Kirck Brown, Susan Miller-Havens, and Molly Johnson, has at least 25 instances where lying is the recommended approach. Here's what appears on page 66, in the discussion of getting information from people in charge of vital statistics records: "Whenever you request vital statistics records, be as specific as possible. Identify the individual as clearly as you can. In this situation, it is a good idea to state "judicial or medical need" rather than genealogical or adoption search as the basis for your request."
But there cases where the medical need is real, and involves life-threatening situations where the obtaining of medical information can be critical. In these instances, I agree that it is achievable.
As I said above, I believe that there is always the court as the last resort. But the easier way to approach the issue is the way one adoptive family did. They were on vacation and a child became ill. A physician suggested that the cause might be genetically-based and asked about medical background. The family had limited information. The family contacted the agency which had arranged the adoption, explained the situation, and the agency, confidentially and sensitively contacted the birth parents and checked on the medical questions being raised. As it turned out, there was no genetic connection, but the disinterested third party, in this instance, the agency, helped out. No doubt, ethical agencies and ethical attorneys involved with adoption would respond to cases of real medical emergency, where life-threatening situations call for flexibility.
Another case involved a man wanting to know if a biological parent was a potential match for a bone marrow transplant. A judge opened the records, confidentially contacted the birth mother, and explained the situation. The birth mother agreed to be tested but was not a match. She asked a half-sister if she would be tested, and she did not turn out to be a match. The judge then contacted the named birth father, who declined to be tested and denied paternity. In the end, everything that could have been gained through open records was achieved, but none of the privacy rights of others were invaded.
Existing laws and practices are sufficient to respond to this need, in terms of potential fees, everyone realizes that any service "costs." The silly question is whether the person seeking the information should be asked to pay for the cost of service. That matter should be left to individual state law, the rules of various courts and to agencies and attorneys.
Imposing any particular policy seems unlikely to work out, given the diversity of people with information and who can be of assistance.
Since 1980 when NCFA was founded, we have endorsed the collection. and sharing of non-identifying medical, social and other background information, NCFA has a form which we have developed as a model to be used for this purpose, because we are aware of the instances where it is critical to have medical information.
We do so because such information-sharing is in the best interests of the child, who may be in a life-threatening medical situation, and we believe that this is the ethically-appropriate solution. We are fully aware, as Klunder says in his book on page 37, that those who wish to evade the intent of the law will use his definition of "indentifying information " "...any data which could allow you to directly identify or locate the person (s) in question. "
This means that information, including medical information that allows someone to indirectly identify or locate the person(s) in question, is "non-identifying." Such is the, level of honesty that characterizes so much of the "search" movement's thinking.
And to Nathan Haney:
Nathan, you make a good point and one that deserves careful consideration. On the one hand, it is important for people to know about important medical background information. But, as was made clear in a debate that appeared in a scholarly publication of a leading bioethics organization, the possibility of providing information does not necessarily mean that one should provide that information, ethically speakmg. (Legally speaking, the issue seems fairly clear-cut: what one has, one should share, the attorneys who specialize in so-called "wrongful adoption" cases say.)
There are certain medical conditions which impact individuals later in life, and which are devastating. Bioethicists debate whether sharing the knowledge of such information with a person, whether adopted or not, is in their best interest. On the one hand, knowing such information and not being able to do anything about the specter of devastating illness in the future may lead one to suicide. On the other hand, there is the question of giving a person the knowledge needed to be responsible for one's own decisions. In the bioethical debate, I tended to agree with the viewpoint of withholding the information. After all, a cure could always come about.
To your point about the child whose grandmother was schizophrenic, here is a place for medicine and genetics to step in. According to Adoptioin/lMedical News, a monthly newsletter published by Christine A. Adamec (co-author with me of The Encyclopedia of Adoption and many other adoption books), there is a 6 percent average life risk of developing schizophrenia if one is the grandchild of a patient with this illness (January, 1997, issue, p. 3). The author, Serri Ann Jenista, M.D. cites a Lancet article as the source of this information.
In my view, it is the responsibility of whomever is arranging the adoption to share any information about a child with a projected 6 percent chance of schizophrenic with the prospective adoptive parents. The adoptive parents should consult their own medical experts and make a decision about adopting that child. Given the wonderful people who line up to adopt children with daunting medical and mental health challenges, I have no doubt that such a child would eventually be adopted by a family that is aware of the risks and is willing to take them. I also have little hesitation to say that such a prognosis would deter some families.
Support the kind of journalism done by the NewsHour...Become a member of your local PBS station. PBS Online Privacy Policy
Copyright ©1996- MacNeil/Lehrer Productions. All Rights Reserved.
