University of Baltimore School of Law

                                                                        1420 North Charles Street

                                                                        Baltimore, MD 20910

                                                                        April 6, 2004

 

 

Representative Edward P. Moran

Chairman

Children and Family Law

New Hampshire House of Representative

Concord, New Hampshire

 

Re: Hearing on Senate Bill SB 335; Tuesday, April 6, 2002

 

Dear Chairman Moran and Members of the Committee,

 

            Thank you again for the opportunity to testify on this bill and to submit written comments after the hearing.

 

            I am an associate professor at the University Of Baltimore School Of Law, where I teach courses in the areas of constitutional law and family law.  I have conducted extensive research on the legal history of adoption records and have published the first and only comprehensive article about this little known legal history.  The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records, 53  Rutgers L. Rev. 367-437 (2001).  I attach an “op ed” piece summarizing this work, which appeared in The Washington Post.

 

            I am writing the Committee to offer brief comments in writing about the legal history of adoption records, history that I hope the Committee will bear in mind and that I believe lends support to support to the passage of Senate Bill 335. 

 

            When adoption records around the United States were closed to inspection by the parties to the adoption as well as the public, they were closed to protect adoptive families from possible interference or harassment by birth parents, not to protect birth parents’ privacy.  Adoption laws, from the beginning to the present, have not provided birth parents with a guarantee of lifelong anonymity.  As a governor’s commission in my state found in 1980, lifelong anonymity was not offered to birth mothers; it was imposed upon them.

 

            In the 1940s and 1950s, many states followed the recommendation of adoption and vital statistics experts to make adoption court records and original birth certificates generally available only by court order, but to keep original birth records available on demand to adult adoptees.  This was the recommendation of the first Uniform Adoption Act, promulgated in 1953.  The position of the United States Children’s Bureau was that an adopted adult has a “right to know who he is and who his people were.”  Despite the experts’ recommendations, many states did begin to close original birth certificates to adult adoptees as well as to all other persons.  By 1960, 26 states had done so, although in several of those states, court records remained available after that date to either adoptive parents or to adult adoptees.  Even in the states in which access to both court and birth records became available only by court order, the reason given for closing records to the parties was the need to protect adoptive families from birth parents, not to protect the privacy of birth parents. 

 

            Of the states that in 1960 still explicitly recognized adult adoptees’ right to original birth certificates on demand, four states closed the original birth records in the 1960s, six states closed them in the 1970s, and seven more did so only after 1979.  New Hampshire law sealed the birth records in 1973.  (Since 1990, when Alabama closed these records, Alabama, Oregon, and Tennessee have again made records available to adult adoptees on demand.)  In Alaska and Kansas, the records have never been closed, remaining available on demand, and in South Dakota they have remained available on demand to a court.              

 

            During the years states began closing birth records to adult adoptees, did birth mothers seek to keep their identities forever unknown to their children?  The evidence from my research is that birth mothers who sought confidentiality sought to conceal their pregnancies from their parents, or from other members of their communities, rather than to conceal their identities forever from their children or to foreclose for themselves any chance of learning how their children fared in life. 

 

            As the governor’s commission in my state found in 1980, the birthmother “had no choice about future contact with her relinquished child;” “[s]ecrecy was not offered her, it was required . . . as a condition of the adoption.”  This historical account is consistent with the common understanding today that many birth parents are more open to the idea of placing their children for adoption if there will be some degree of openness in the adoption arrangements.  It is also consistent with the evidence that opening records leads to neither increased abortion rates nor decreased adoption rates, and may in fact have just the opposite effects.

 

            This historical account of the reason for closing records to the parties to adoption is also consistent with what studies and surveys conducted since the 1980s have shown about the attitude of birth parents toward providing adult adoptees with access to birth records.  Overwhelmingly large majorities of birth parents, from more than 85 percent      to more than 95 percent either do not oppose, approve of, or actively support adult adoptee access to original birth certificates.  Many birth parents as well as adult adoptees spend years, and considerable sums of money, searching for information.  While many birth parents and adult adoptees are successful in their searches for information, as countless newspaper and television stories attest, some adult adoptees who search for information remain unsuccessful and frustrated because they lack access to their original birth records.

 

            In any event, the laws sealing court and birth records have never guaranteed lifelong anonymity for birth parents.  In virtually every state, from the beginning to the present, adoption records have been accessible by court order without notice to or participation by birth parents.  It has typically been up to the adoptive parents, not the birth parents, whether to change the child’s name from the name on the original birth certificate.  In independent or private adoptions, adoptions not arranged by agencies, the adoptive parents’ lawyer or the adoptive parents themselves typically have documents that identify the birth mother or the birth parents.

 

            States’ legal systems in which adult adoptees have access to their original birth certificates have been operating successfully, including those systems in which records have always been open and those in which formerly closed records have been opened to adult adoptees.   

 

                                                            Sincerely yours,

 

 

                                                            Elizabeth J. Samuels

                                                            Associate Professor of Law

                                                            University of Baltimore School of Law

 

 

 

The Washington Post

October 21, 2001 Sunday 

Final Edition

 

SECTION: OUTLOOK; Pg. B05

HEADLINE: How Adoption in America Grew Secret;

 

Birth Records Weren't Closed for the Reasons You Might Think

BYLINE: Elizabeth J. Samuels

They've become a standard of news features, magazine articles and movie plots: the stories of men and women, adopted at birth, who decide to seek out their biological parents. The urge for reunion seems so elemental that a plethora of organizations has sprung up to assist adoptees in their search. Today, the Internet is replete with Web sites offering registries to help adoptees and their birth families find each other by matching up information such as dates and places of birth.

 But many adoptees "in search" are not able to find information through these organizations or official state registry systems. Their only hope is access to original records, such as their unamended birth certificates. And this, unfortunately, is a source of information that remains largely closed to them, even though, as studies now show, most birth parents are open to being found. 

In fact, most birth parents may never have objected. The general public assumption seems to be that, from the beginning, adoption records were closed in large part to protect the birth mother's identity. But that isn't the case at all -- as I discovered when I undertook to research a question arising from my own family's experience. The child my sister had surrendered for adoption was able to locate us in the late 1980s because my sister had given birth in England, where records have been open to adult adoptees since 1975.

 As I saw what profound satisfaction mother and daughter experienced getting to know each other, I began to wonder why almost every U.S. state had decided to close records to the adult children of adoption in the first place. What I found surprised me.

 Legal adoption in America only came into being starting in the second half of the 19th century, and at first all adoption records were open to the public. When they began to be closed, it was only to the general public, and the intent was to protect adoptees from public scrutiny of the circumstances of their birth. Later, as states began to close records to the parties themselves, they did so not to provide lifelong anonymity for birth mothers, but the other way around -- to protect adoptive families from possible interference or harassment by birth parents.

 One of the most prominent actors in the development of adoption law in the mid-20th century was the Children's Bureau, an arm first of the U.S. Department of Labor and later of the Department of Health, Education and Welfare. In the 1940s and '50s, the bureau advised that birth and adoptive parents who did not know one another should not have access to information about each other. But it also said that original birth certificates should be available to adult adoptees. As one of the bureau's consultants put it in 1946, "every person has a right to know who he is and who his people were."

 In the '40s and '50s, most state laws did permit adult adoptees to view their birth records. But by 1960, 26 states were making both original birth records and adoption court records available only by court order. Twenty other states still made the birth records available on demand, but over the following 30 years, all those states but three -- Alaska, Kansas and South Dakota -- closed records to adult adoptees.

 Why were states closing their records even before 1960, when the reasons being advanced were all about protecting adoptive families, and not birth parents? The historical record suggests that birth mothers were in fact seeking a measure of confidentiality. What the mothers wanted, however, was not to prevent the adoptive parents and the children they had surrendered from discovering their identities, but to prevent their families and communities from learning of their situations. A powerful reason for the earliest closings of birth records to adult adoptees may simply have been that it was consistent with an emerging social idea about adoption: that it was a perfect and complete substitute for creating a family by childbirth, so the adopted child had no other family and would never be interested in learning about any other family.

 Once most states sealed records for everyone except adult adoptees -- and many states foreclosed access even to them -- the record-sealing laws themselves may have helped foster the notion that lifelong secrecy is an essential feature of adoption. Adult adoptees increasingly felt discouraged from seeking information about their birth families, and those who did were viewed as maladjusted. By the 1970s, legal comments and court opinions started to talk about the reason for permanently sealed records in terms of birth parents' rights to lifelong anonymity. And states continued to pass laws foreclosing adult adoptees' access to birth records.

 Since the adoptees' rights movements began in the 1970s, it has encountered stiff opposition to its efforts to win legal access to birth records. Only in the past six years have adoptees won an unqualified right to view records in three states -- Tennessee, Oregon and Alabama. Also, Delaware joined Nebraska in making records available if birth parents have not filed an objection. Around the country, legislatures are considering similar laws, but these are exceedingly limited gains for a movement nearly 30 years old.

 Recently, celebrating Family History Month, Sen. Orrin G. Hatch encouraged Americans to "find out more about where they came from" because "researching ancestry is a very important component of identity." As more state legislatures contemplate giving adult adoptees the right to research their ancestry, they should understand that once it was considered entirely natural and desirable to let adoptees learn who their people were.

Elizabeth Samuels is a professor at the University of Baltimore School of Law.                                                                                                                                                      Errata: The Nebraska law is prospective, not retroactive.