Reprinted by kind permission of the Harvard Law School Bulletin.
Mr. Klibanoff is presently senior policy analyst at Abt Associates,
Inc., Cambridge, Mass. and was formerly the director of the Massachusetts
Office for Children. He is the co-author, with his wife Susan, of
the book Let’s Talk About Adoption (Little, Brown & Co., 1973) and
has written and lectured on the law, public policy and children.
[1. Background to the Controversy
2. The State of the Lawa. Records and Information3. A Closer Look at the Interests of the Parties
b. Sealed Records Laws
c. What Constitutes “Good Cause”?
d. The Adoptee’s Constitutional Rightsa. The Adoptee4. Some Suggested Reforms
b. The Biological Parents
c. The Adoptive Parents
d. The Interests of the Publica. Agency Records
b. Agency as Mediator
c. Judicial Recognition of the Psychological Need to Know]
1. Background to the Controversy
Professionals in the field of adoption have, for decades, been advising
parents to begin telling their children of their adoption at a very young
age — usually at the time of curiosity about how babies are formed.
The style and scope of the telling process varies from parent to parent
and professional to professional. But the basic purpose has been
to prevent any future trauma which may result from the child’s suddenly
finding out about his or her adoption in later years. Such a revelation
could undermine both his or her self-image and any trust that may have
existed between child and parents.
Despite the desirability of giving the child such basic information, there are many adoptees who were never told by their parents. And there are many adoptive parents, particularly those who have been unable to resolve their feelings about infertility, who are frightened or threatened by the process.
The type of information available to adoptive parents for passing on to their children varies widely. Until recently, adoption agencies shared little other than the medical background, if unusual, religion of the biological mother, if important to the parties, and the child’s residential history from birth to adoptive placement. The current Standards for Adoption Services issued by the Child Welfare League of America recommend that only limited information be given about the biological parents and discourages detailed descriptive data.1 A very recent survey indicates, however, that most agencies go far beyond the existing CWLA standards for many items about the biological parents — with the exception of family history, identifying information, circumstances of birth, and to a limited extent, reasons for relinquishment2 .
Although there is still controversy about how and when to share information, there is a growing recognition that the child should know about his origins for a complete sense of identity.3 There is no consensus, however, on whether knowledge of one’s origins should include the names and addresses of the biological parents. And that is where the dispute over public policy has focused.
Individual adoptees who have searched for an found their biological parents have been every vocal in attempting to establish the adoptee’s right to identifying information.4 Groups have been organized for political and legal action on both sides of the issue by both adoptees and adoptive parents. Media attention to the issue grows  daily. This article will examine the legal framework for the controversy, the interests of the parties, including the public interest, and suggest some avenues for exploration which might lead to new solutions and new ways to define problems.
2. The State of the Law
a. Records and Information
Information about the
genealogy of a child who is adopted may be found in one of three sources
— the files of the agency (or private party) which received the child from
the biological parent or parents, the records of the court or courts which
approved the final adoption and any proceedings preliminary to it, and
the official local or state repository for birth certificates.
In the typical adoption, agency files would include the reports of social service professionals on the circumstances surrounding the surrender of the child, a complete description of the biological mother and a brief description of the father, a medical history of the mother and the birth, if the child was surrendered as an infant, and a report and follow-up on the suitability of the adoptive parents. Although there are exceptions, the agency records with respect to genealogical background are distinguished only by the paucity of information.
The court records are likely to contain even less — a summary report from the agency, a copy of the surrender documents of one or both parents, proof of notice to the parties, evidence of the birth of the child and a copy of orders previously issued.
Upon finalization of the adoption, notification is sent to the state or local registrar of vital statistics, who seals the original birth certificate and prepares an amended one which substitutes the names of the parents through adoption for those of the biological parents.
b. Sealed Records Laws
Almost all states have
laws which place court records and birth certificates under seal and restrict
access to anyone without an appropriate court order. Only two states
— Alabama and Kansas — now permit an adult adoptee to have access to his
or her birth certificate without a court order.5
Only Virginia permits such access to court records.6
It is ironic that state statutes do not restrict access to agency records
since most of the information of interest to the adoptee would most likely
be collected there.
The Uniform Adoption Act and the Uniform Vital Statistics Act both have provisions for the issuance of a new birth certificate and the sealing of the original documents, but only the latter would grant access without a court order.7
It is interesting to note that very few countries in the world freely permit the adoptee such access.  Among them are Scotland, Finland and Israel.8 Governmental Commissions in both England and Canada have recently recommended such legal reform.9
In determining the law of any particular state, lawyers must be sure to check provisions bearing on birth certificates, probate or family court proceedings, regulation of child welfare agencies, adoption, and general confidentiality or fair information restrictions.
Sealed record laws are based on the belief that the rights and interests of all the parties involved in an adoption are best protected through confidentiality. They are intended to assure that the biological parents will not be able to locate the child and interfere with the development of a psychologically stable and healthy relationship between the child and the adoptive parents.
Confidentiality is also intended to protect the child born out of wedlock and the biological mother from any stigma which might result because of those origins.
Should the day come when out-of-wedlock births are not clothed in prejudice, then some of the basic rationale for sealed records might be undercut. But, although attitudes on the question are undoubtedly changing, the legal system itself is still rife with vestiges of discrimination against “illegitimate” children.
Although agency records are not usually covered by sealed records statutes, most agencies treat them as though they were.10 A recent survey indicated that over 99% of the agencies will not give the name of the biological parent without the latter’s consent, although a few will undertake a search under certain circumstances.11 And, as we observed earlier, the records of the agency are unlikely to reveal comprehensive genealogical information.
Thus, in almost every state, the adoptee who wishes to find out more about his/her biological parents. may well have to turn to the courts. Once there, he or she must convince the court that it should authorize access to such information under existing sealed record laws or in accordance with constitutional rights.
c. What constitutes “Good Cause?”
State sealed record
statutes either explicitly require a showing of “good cause” or are silent
as to the appropriate standard. What a persuasive case consists of
is completely within the discretion of the court. In the past, courts
have been quite conservative in granting access. However, two recent
cases have indicated that the courts are beginning to take into account
the adoptee’s psychological needs.
In In re Ann Carol S., a New York court allowed an adult adoptee access to her birth records upon a showing that her obsession with obtaining such information had an adverse affect on her, that her adoptive parents were deceased, and that the records did not contain collateral information.12
Most recently, in a ruling sought as much by the New Jersey Registrar of Vital Statistics as by the adoptee-petitioner, the Chancery Division of the New Jersey Superior Court held that an adoptee’s psychological need to know the identity of biological parents may constitute good cause under the statute. In Lovallo v. N. J. State Registrar, decided February 4, 1977, Judge Philip A. Cruccio established guidelines for the handling of requests under state law. In the case of adult adoptees, the burden was shifted to the state to show that good cause does not exist. However, in each case the court required the establishment of a procedure to protect the interests of the biological parent. The adoption agency would be appointed as an agent of the court to solicit consent of the biological parent or to make a recommendation to the court that the information should not be revealed. In the latter case the adoptee may ask the court to override the recommendation of the agency. The basic rationale was that neither the adoptee nor the biological parent should have absolute rights in the process — either for access or for confidentiality. The court treated information on identity of biological parents with a much stricter standard than medical or hereditary background information. This aspect of the court’s ruling, in addition to its clear holding that “need to know” may constitute good cause, will undoubtedly guarantee its widespread influence.
d. The Adoptee’s Constitutional Rights
Several avenues are
open to the adoptee wishing to establish a constitutional basis for access
to genealogical information, all of which must be balanced against the
significant interests of the other parties affected by the adoption and
the interests of the public in the protection of the adoption process.
It has been argued that sealed record statutes deny equal protection of the laws to adoptees because they are discriminated against solely because of their status as adoptees.13 They alone  cannot inspect their original birth certificates. Traditional equal protection tests require that there be a rational basis for the discrimination in relationship to the purpose of the statute.14 It is unlikely that the adoptee could show no such rational relationship. More recent standards require that the classification have a “fair and substantial relation to the object of the legislation.”15 If the adoptee argued that the primary object of the statute is to further the best interest of the adoptee, he or she might be able to show that those interests are better served by disclosure. However, the sealed records statutes have the equally important functions of protecting the privacy of the biological parent, the parental opportunity of the adoptive parents, and the public interest in the adoptive process. Moreover, it has not been shown that disclosure of identifying information would further the best interest of the adoptee in more than a minority of the cases.
A more productive set of equal protection arguments would be those bringing the sealed records statutes within the stricter scrutiny used to review statutes which establish a “suspect classification” or which tend to deny a “fundamental right”. Such statutes are presumed invalid unless they further a compelling state interest.
A suspect classification has been defined as an “immutable characteristic determined solely by birth”16 Although “illegitimacy” has been treated like a suspect classification,17 not all adoptees are born out of wedlock. Perhaps substantial identity with a suspect class would suffice. Being an adoptee does not by itself fit the current court standard since it is a status conferred by statute.
The adoptee could argue that his or her identity is a fundamental right. What could be more one’s own than the identity of forbears? In Griswold v. Connecticut,18 the court referred to rights not necessarily enumerated in the Constitution or the Bill of Rights but nevertheless protected. Although one recent case may indicate a very restrictive definition of fundamental rights — 19 even when the principle was related to a First Amendment right — the combination of Ninth Amendment and Equal Protection arguments may provide fertile ground for the establishment of a “right to one’s own identity.”
Of course, even if a suspect classification or fundamental right is established, the adoptee would have to show that the interests protected by the statutes were not compelling. and there is some indication that when the statute is in an area of traditional state discretion a suspect classification or fundamental right argument may not prevail.20
Although the Constitution does not mention a right to privacy, as such, the adoptee could well argue that the area of genealogical identity is similar to other areas of family relationship to which the right has been applied, e.g., abortion,21 marriage22 , and contraception23 . If the right to privacy is intended to restrict government interference with private decisions, then there can be little more private than the adoptee’s development of self-image.
And, finally, why should agency, court and vital statistics personnel be given access to information about the adoptee which he or she cannot acquire? If there is a right to privacy at all it should include not only the right to be free from public intrusion in personal decisions, but, also the right to control information about oneself.24
3. A Closer Look at the Interests of the Parties
In order adequately to evaluate the legal arguments with regard to sealed record statutes, and to consider what reforms in agency practice might be appropriate, we must have a clear understanding of the interests of those involved in the adoptive process.
a. The Adoptee
All persons who are
adopted are curious about their background. To those of use who are
not adopted, the identity of parents, grandparents, great-grandparents,
uncles, aunts and siblings is taken for granted. We know whom we
look like; what special characteristics or qualities of inheritance we
may have; what limitations may be inherent in our genealogy; what disabilities
or medical handicaps we have to watch out for; what instincts seem to run
in our family; and what special aspects of personality are common to our
relatives. However, these aspects are a mystery to adopted persons.
The development of a sense of identity is essential to a healthy, productive life. One major component of that development is a loving relationship with parents, which is often provided through adoption. But, the other side of personal identity — knowledge of genealogy — cannot be so provided.
Most professionals in the field agree that a lack of knowledge concerning biological ancestry can impede identity development. The most critical period of questioning by the adoptee occurs during adolescence, when children struggle  with identity and self-image. This is a time of great consciousness of sexuality, when children wonder about the traits they may pass on to their children. Questions come not only about family background, but also about the circumstances through which they came to be adopted. It is very common for adopted children to wonder why they were given up.
Some children will grow up without any great need to have more details about their genealogy than their adoptive parents were able to give them. Others will seek out more detail about family background and relatives. And some will look upon it almost as an obsession and will attempt to search for and meet biological parents.
Studies have indicated that adoptees who search for biological parents tend to come from families where the relationship between child and parents — and the nature of information sharing about genealogy — left something to be desired.25 Although the children who search are definitely in the minority, their numbers are not insignificant. A recent study of 163 agencies by the Child Welfare League of America indicated that, in 1975, 3000 adult adoptees returned to the agencies seeking information — 40% of whom wanted to meet their biological parents.26 This compares with 60% of the sample seeking more information in a recent Scottish study — a sample probably skewed because most adoptees were not adequately told about their adoption.27 Much more research needs to be done to learn more about why some adoptees have a deep psychological needs [sic] to find biological parents and why others seek only information; to determine the relationship between the telling process and these needs; and the effects on the parties of receipt of information and the actual meeting of child with biological parent. In both the recent Child Welfare League study and the Triseliotis study of Scottish adoptees, fears of destructive results appear not to be borne out. In the former, the agencies stated that in 87% of the reunions, all parties were glad they met and only in 2% did all parties consider it unsuccessful.28 In the latter 80% of the adoptees found either their inquiry or their reunion helpful.29 One interesting finding of the Triseliotis study, however, is that adoptees who were given significant information early in life by parents with whom there was a warm relationship tended to search only for more information and not to meet biological parents.30
There is no reason to assume that the adoptee’s need to know about his or her genealogy should be any less than any other child’s desire to know of his or her ancestors. And for some, their psychological well-being might depend on much more than knowledge.
b. The Biological Parents
The interests of the
biological parent, on the other hand, are not likely to be furthered by
disclosure of their identity to the adoptee. First, there is the
simple question of justified reliance on the guarantee of anonymity which
existed at the time of the surrender — a guarantee based in part on a desire
to protect the parent from public embarrassment. In addition, the
possible reappearance of a child given up years before could be quite disruptive
to the private life of the biological parent and to any relationship he
or she may have established with spouse or children. That family
unit is entitled to protection from intrusion.
Surrendering a child for adoption is a traumatic experience for any parent. One of the most difficult  things for a young, unmarried mother is to resolve in her own mind and heart the mixed emotions of such an experience — and the permanence of the decision. To threaten that resolution with a reunion can be terribly unfair and hurtful.
There is, however, a growing body of opinion which casts some doubt on the widely accepted view of the biological parent. Searches are initiated by these parents, though not in as many cases as by the children.31 Studies indicate that most biological mothers say they would be willing to participate in a future meeting with the child if it would be helpful to the child’s welfare.32 Perhaps, such a meeting may even aid the biological parent resolve guilt about the surrender. Despite all this, however, the interest of many biological parents in anonymity cannot be easily cast aside.
c. The Adoptive Parents
The adoptive parents are guaranteed the same anonymity as the biological parents. The adoptive family needs to be protected from intrusion in order that a healthy and stable relationship may develop. Beyond this, the adoptive parent may feel threatened by disclosure — and by the unknown results of a possible reunion. They cannot easily put distance between themselves as parents and their child’s personal need for identity.
d. The Interests of the Public
The primary interest
of the public —the silent member of the adoptive triad — is to preserve
the integrity of the adoptive process. That is, the continued existence
of adoption as a humane solution to the serious social problem of children
who are unwanted, abused or neglected. In order to maintain it, the
public has an interest in assuring that changes in law, policy or practice
will not be made which negatively affect the supply of capable adoptive
parents or the willingness of biological parents to make decisions which
are best for them and their children. We should not increase the
risk of neglect to any child, nor should we force parents to resort to
the black market in order to surrender children they can’t care for.
The public’s interest is as relevant to the appropriate pace as it is to the nature of the change. For example, even if there was general agreement that adoptees should have access to otherwise sealed records, we must still determine whether hasty movement in that direction would undermine the goals of adoption itself. In addition, the public interest requires that more research be done to determine the effect of policy changes on the attitude of adoptive and biological parents.
No one has yet shown that decades of policy protecting the anonymity of the biological parents and the security from intrusion of the parent-child relationship after adoption have been misguided. Quite the contrary. The overwhelming success of adoption as an institution which has provided millions of children with families cannot be easily attacked.
The public has a strong interest too, in preserving the confidential non-public nature of the process. Public attitudes toward illegitimacy and parents who neglect or abuse children have not changed sufficiently to warrant careless disclosure of the circumstances leading to adoption.
But the public also has an interest in the mental health of children who have been adopted — in order that they not become burdens to society. Some provision for the relatively small group of adoptees whose psychological needs are compelling would appear necessary.
4. Some Suggested Reforms
There are a number of changes that could be made now to satisfy legitimate and widely shared interests of adoptees without jeopardizing the rights of other parties or of the public. They flow from a careful analysis of those interests rather than an appeal for all or nothing approaches. And they will lay the foundation for further inquiry which will improve our capacity to determine the need for — and effects of —more drastic change.
a. Agency Records
Agencies should routinely gather comprehensive information about the biological family which can be shared with the adoptive parents and the adult adoptee. Currently there is no uniformity or comprehensiveness to agency practice in this area. This is true in spite of the fact that most adoptees who pursue the matter are seeking information more than personal contact. Moreover, no major interests would be compromised by making available more detailed non-identifying information. The following might be a checklist for all agencies to follow:
Information about the child: original name; date, place and circumstances of birth; life experiences prior to adoption; religious history; special talents or personality traits; developmental milestones; medical and diagnostic history, educational history; physical description by age.
Information about Siblings: (same as for child except for name),
Information about Biological Parents: age, race; ethnic origin; place of birth; religion; physical description and personality; education and employment history;  health history; special interests and talents; detailed circumstances at birth; detailed reasons for surrender; relationship of father and mother; psychiatric and diagnostic history; description of personality and temperament.
Information about Maternal and Paternal Grandparents: awareness of child’s birth and adoption; relationship with child’s parents; social history; ancestors (remainder the same as for biological parents).
Information about Siblings of Biological Parents: awareness of child’s birth and adoption; general physical, intellectual and personality characteristics; special interests and talents; employment and health history; social history; children’ identification of source of information.
b. Agency or Mediator
Agencies should accept
as part of their service role the function of counselor to the adoptee,
the adoptive and the biological parents. There is a great need for
professionals to increase their casework experience in post-adoptive matters,
particularly inquiries about family history or identity. In this
context it may be desirable for agencies to mediate requests by adoptees
or biological parents, or both, for information and reunion.
Social service professionals must take the lead in helping the adoptee identify his interests, separate the need to know facts from the need to meet parents. They must become expert in recognizing true psychological needs and in determining the possible effect on biological parents. Such expertise would be essential to guide court decisions or future legislative policy; moreover, it can serve the interests of the parties while minimizing interference with those interests.
Much is uncertain in this field except the certainty of change. Agencies should not hesitate to experiment with new concepts to satisfy needs and minimize interference, such as seeking a waiver of the right of consent to a reunion from biological parents at the time of surrender; or, the identification of a mediating relative; or, the transmission between adoptive and biological parents of messages or tape recordings without identifying information.
The challenge to adoption agencies is clear: they must choose between acceptance of greater responsibility or acquiescence in legal or legislative decisions which may be premature.
c. Judicial Recognition of the Psychological Need to Know
The recent case of
Lovallo v. N.J. State Registrar balancing
the adoptee’s need to know with minimized interference with other important
interests moves the law surely and prudently. Sealed record statutes
are not overthrown; rather, “good cause” is defined. Neither the
adoptee nor the biological parent has absolute rights. Agencies are
given the type of responsibility which they are best equipped to carry
out. And, the public interest in the adoptive process is preserved.
It is this writer’s hope, however, that agencies and the public will support and adopt the changes in information-gathering and agency role suggested above. In that way, the judicial system may not need to be relied upon to resolve interests which ought to be resolved in a non-adversary forum.
[Footnote 1] Child Welfare League of America Standards for Adoption Service, CWLA, New York, 1968 Rev. Sections 4. 12-4.15.
[Footnote 2] Jones, The Sealed Adoption Record Controversy: Report of a Survey of Agency Policy, Practice and Opinion, July, 1976, Research Center, Child Welfare League of America, New York.
[Footnote 3] Sants, “Genealogical Bewilderment in Children with Substitute Parents,” 37 Brit. J. Med. Psychol. 133 (1964); Sorosky, Baran and Pannor, “Identity Conflicts in Adoptees”, 45 Amer. J. Ortho-psychiatry 18 (1975); Triseliotis, In Search of Origins, The Experiences of Adopted People, Routledge & Kegan Paul, Toronto, 1973; McWhinnie, Adopted Children and How They Grow Up, London, 1967; Committee on Adoptions, American Academy of Pediatrics, “Identity Development in Adopted Children”, 47 Pediatrics 948 (1971).
[Footnote 4] Paton, The Adopted Break Silence, Life History Study Center, Acton, Calif., 1954; _____, Orphan Voyage, Vantage, New York, 1968; Fisher, The Search for Anna Fisher, Arthur Field, New York, 1973; Lifton, Twice Born, McGraw-Hill, New York, 1975.
[Footnote 5] Ala. Code Ann. tit. 27 sec. 4 (Supp. 1971); Kan. Stat. Ann. Sec. 65-2423 (1972).
[Footnote 6] Va. Code Sec. 63.1-236 (1973).
[Footnote 7] Uniform Vital Statistics Act, Sec. 24; Uniform Adoption Act, Sec. 14.
[Footnote 8] Adoption of Children Act, 20 & 21 Geo. 5, c. 37, sec. 11, at 461-463 (1930); Adoption of Children Law of 1960, 14 Laws of Israel 93 No. 215; Triseliotis, supra, n. 3 at 1.
[Footnote 9] Report of the Departmental Committee on the Adoption of Children, Home Office & Scottish Educ. Department, Cmnd. No. 5107 (1972); Report of the Committee on Record Disclosure to Adoptees, Ontario Ministry of Community & Social Services, June 22, 1976.
[Footnote 10] Jones, supra, n.2 at 13.
[Footnote 11] Ibid, at 9, 28.
[Footnote 12] 172 N.Y.L.J. 31, Aug. 13, 1974 (Sur. Ct. Bronx County).
[Footnote 13] Note, “The Adoptee’s Right to Know His Natural Heritage,” 19 N.Y.L.F. 137 (1973), 141-146.
[Footnote 14] Village of Belle Terre v. Boraas, 416 U.S. 1 (1974); McGowan v. Maryland, 366 U.S. 420 (1961); “Developments in the Law—Equal Protection,” 82 Harv. L. Rev. 2065 (1969).
[Footnote 15] Reed v. Reed, 404 U.S. 71 (1971), quoting from F.S. Royster Guano Co. v. Commonwealth of Virginia, 253 U.S. 412, 415 (1920); Eisenstadt v. Baird, 405 U.S. 438 (1972).
[Footnote 16] Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
[Footnote 17] Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1962). But see, Jiminez v. Weinberger, 417 U.S. 628 (1974).
[Footnote 18] 381 U.S. 479 (1965).
[Footnote 19] San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) (the right to education).
[Footnote 20] Labine v. Vincent, 401 U.S. 532 (1971).
[Footnote 21] Roe v. Wade, 410 U.S. 113 (1973).
[Footnote 22] Loving v. Virginia, 388 U.S. 1 (1967).
[Footnote 23] Eisenstadt v. Baird, 405 U.S. 438, 453 (1972).
[Footnote 24] Fried, “Privacy”, 77 Yale L.J. 475, 463-83 (1968).
[Footnote 25] Triseliotis, supra, n. 3 at 57, 159; Sorosky, supra, n. 3 at 15.
[Footnote 26] Jones, supra, n.2 at 16.
[Footnote 27] Triseliotis, supra, n. 3 at 5.
[Footnote 28] Jones, supra,
n. 3 at 19.
[Footnote 29] Triseliotis, supra, n. 3 at 139.
[Footnote 30] Ibid, at 159.
[Footnote 31] Jones, supra, n.2 at 20.
[Footnote 32] Triseliotis,
supra, n. 2 at 165; Pannor, Sorosky & Baran,
“Opening the Sealed Record in Adoption — the Human Need for Continuity”,
51 J. Jewish Communal Service 188 (1974) at 192.
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