It's been over a year since we looked at the open records debate. During that time, several states have enacted new legislation or revised old statutes, and several others have pending bills or bills in the drafting process.
One long-awaited ruling came from the Tennessee State Supreme Court which ruled that open records do not violate birthparent privacy, and adult adoptees may now apply for and receive their original birth certificates subject to vetoes carrying criminal penalties if signed by birthparents.
Legislation that has been the recent focus of national media attention is Oregon's Measure 58, which was approved by state voters in November, 1998, supported in two appeals, and finally enacted on May 30, 2000. And in a surprisingly quiet move, Alabama opened records to unconditional access by adult adoptees, effective August 1, 2000.
Recapping the Issue
In most states, American adult adoptees are not allowed unrestricted access to their original birth certificates, a right non-adopted citizens take for granted. Adults whose adoptions were finalized in Alaska and Kansas can receive a copy of their original birth certificates (OBCs) upon request, since these states never sealed their records.
The issue is not about adoptees and birthfamilies searching for and/or finding each other. For years now, search and reunion have been occurring regardless of open records laws. What adoptees choose to do - or not do - with information contained in their OBCs is not the issue.
The issue is not about extending new rights to anyone that infringe on the rights of anyone else.
The issue is about restoring rights that were taken away from one specific group of people, and only in certain states. It is about the right of adult adoptees to have equal access to information about themselves - the same access afforded to all non-adopted adults in this country.
Open records legislation does not make documents or identities public; it only allows adult adoptees access to documents that pertain to them.
Why Were Records Sealed?
Until the early part of the 1900s, all adoption records were open. Starting gradually, and increasing in the 40s, and 50s, states (except Alaska and Kansas) sealed the records.
The intent of these laws was to remove the stigma of illegitimacy, not to protect birthparents. The laws were written to protect families and adoptees from public scrutiny, not from each other.
What The Courts Have Ruled
In Tennessee, the State Supreme Court ruled:
"There simply has never been an absolute guarantee or even a reasonable expectation by the birth parent or any other party that adoption records were permanently sealed. In fact, reviewing the statutes of adoption in this state reveals just the opposite."
The courts in Oregon focused on the claim made by six birthmothers: that they were promised confidentiality and open records violated that promise.
The court ruled that agency workers were not authorized to be agents of the State and make promises that would bind the State. They examined the adoption statutes and found nothing in the law to support the notion of life-long anonymity of birthparents.
In other words, promises cannot create new law, and unauthorized promises cannot bind the hands of legislatures or reverse the will of the people.
It should be noted that records are not sealed at relinquishment (when the birthparent(s) sign placement papers), but when the adoption is finalized. At that time, adoptees are issued "amended birth certificates" which show the names of their adoptive parents. If a relinquished child is not adopted, but remains in the foster care system, the records remain unchanged and open.
I'd Like A Copy of my OBC, Please.
Today, when an adoptee wants to obtain his/her original birth certificate, what are the options?
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Go To Court: Adoptees, birthparents, and adoptive parents can file a legal petition to open an adoptee's adoption records. If a judge determines that there is "good cause," the records can be opened for the specific adoption, or pieces of information from those records can be released to the petitioner. |
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Open/Not Open: In some states, there's a jumping-jack kind of game for various time periods. In Ohio for example, adults adopted before 1964 can apply for and receive their OBC, and those adopted after 1964 can not. |
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Parental Permission: In some states or counties, adult adoptees can obtain copies of their OBCs with parental consent, no matter how old the adoptee. California has several "open counties" where the original adoption records can be obtained by one or both adoptive parents. In Delaware, adult adoptees can receive copies of their OBCs with permission of their birthparents. |
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Apply and Hope: In states with vetoes like Tennessee, adult adoptees can apply for the OBC. The State will then contact birthparents and offer the opportunity to file a veto. |
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Kansas, Alaska, Oregon, and Alabama are remarkable exceptions. If an adult has the good fortune to have been adopted in any of these states, he/she may simply request and obtain a copy of the OBC. |
It Isn't About Search, But...
While the issue is not about search, or any other activity an adult adoptee may engage in after receiving his/her OBC, the law in some states, like Tennessee, has linked open records and search together with provisions for vetoes.
In the case of a "contact veto," when signed by a birthparent, it becomes a crime for the adult adoptee to initiate contact. It imposes civil and/or criminal penalties, similar to a restraining order.
American citizens who are not birthparents obtain a restraining order by providing some proof that the person to be restrained intends to do them harm. In the case of a contact veto, a birthparent has to provide no such proof.
While it's understandable that there are birthparents who, for a variety of reasons, may not want direct contact with a birthchild, there are alternatives that are respectful of all parties' rights and sensibilities that extend "innocence until proven guilty" to adult adoptees:
The Contact Preference Form, in place in Oregon and Alabama, gives birthparents the opportunity to express their wishes concerning contact. Options are:
· Desire for unrestricted contact.
· Desire for contact through an intermediary.
· Desire for no contact, which is accompanied by an updated medical history.
If an adoptee persisted with unwanted contact, it would certainly be emotionally painful for a birthparent to apply for a restraining order, but that's the way the legal system works for the rest of us, and it seems inappropriate for the legal system to exert this kind of exceptional control over interpersonal relationships.
The Last Bastion
Sealed records are the last remaining piece of the wall built around adoption based on stigma. Adoption author Marcy Axness writes, in Painful Lessons, Loving Bonds:
Credit for this publication goes to http://adoption.about.com