THE BASIC BASTARDA Publication of
BASTARD NATION: THE ADOPTEE RIGHTS ORGANIZATION
Edited by Cynthia Bertrand Holub, Education Chair Copyright 1999,2000,2001 Bastard Nation
Bastards of the World, Unite! Contents
What is Bastard Nation?Bastard Nation was born in early 1996 on the Internet Usenet newsgroup, alt.adoption (a.a.). Our founder, Marley Greiner, coined the term "Bastard Nation" and started signing her posts with it, with others soon following suit. In June, Damsel Plum came up with the idea to create a Bastard Nation website. She collected material from people on a.a and on June 19, 1996, we announced the Bastard Nation website to the Internet community. We created a variety of alternative story pages: "True Tales of Revolting Reunions," "Adoptive Parents Speak out in Favor of Open Records," "True Tales of Atrocious Adoptions," "Bastard Moments," as well as links to the standard search and reconnection resources available on the Internet. As we grew, we included accounts of our adoptee rights activism, coverage of negative portrayal of adoptees in the media and popular culture, information on adoption law and position papers on a variety of adoptee-related issues. In recent weeks we have clocked over 50,000 hits a day to our website, attesting to the popularity of a resource which caters to an invisible and underrepresented minority - adult adoptees. Bastard Nation was incorporated as a 501c(4) non-profit organization in December, 1996 by co-founders Marley Greiner, Shea Grimm and Damsel Plum. Since then we've been labeled anti-adoption, anti-birthmother, anti-reunion, stalkers, whiners, professional victims - you name it. Not one of these portrayals is accurate. The only unifying concepts of BN are those of being for equal access to our own original birth certificates, combatting negative stereotypes of adoptees, and providing a forum for the wide spectrum of adult adoptee experience. Otherwise, the opinions on adoption issues of our individual members vary greatly. In this way we are unlike any other adoption organization; we are truly a "big tent" without a whole truckload of associated "positions" on adoption and adoption reform. Adoptee birth records are sealed because of an attitude of shame towards adoption. The language in the original laws which sealed adoptee birth records specifically stated that it was to protect adoptees from the shame and embarrassment of their illegitimate (i.e. Bastard) status. The later justifications we hear for adult adoptees' birth records being sealed are: 1) They are sealed to protect the birthparent (unspoken assumption - from the shame of the unwanted birth coming back to haunt her) 2) They are sealed to protect the adoptee (unspoken assumption - from the shame of being reminded that one was born of an unwanted pregnancy), and 3) to protect the adoptive parents (from the shame of their infertility). In reality there shouldn't be anything shameful about adoption. Sealed records preclude that possibility. Bastard Nation explodes the myth of shame by reclaiming the word "bastard" and all of society's myths and fears regarding adoption. We make fun of the unspoken shame, joke about illegitimacy, tell the untold tales of our sisters and brothers which the media have not been willing to tackle. We give adult adoptees a place to come and express themselves, share their experiences, read about others like (and unlike) themselves, find search and reconnection resources and learn how to fight for their rights as adult adoptees. In the three years since our founding, Bastard Nation has redefined the adoptee rights struggle in terms of civil rights, empowerment and tactical activism. The following are just a few of the many examples of this activism, the most profound, of course, being Bastard Nation's role in inspiring and supporting Oregon's Measure 58: the Adoptee Rights Initiative. http://www.plumsite.com/oregon/
See more at and get involved at http://www.bastards.org/activism/online.shtml Read our position papers on these and other issues at: http://www.bastards.org/activism/position.htm State by state adoption disclosure laws may be found at: http://www.bastards.org/activism/access.htm Welcome to Bastard Nation!
I. Open Records: Why It's An IssueAdult adoptees in most of the advanced, industrialized nations of the world have unrestricted access to their original birth records as a matter of right. In contrast, adult adoptees in all but four states in the U.S. are forbidden access to their own original birth certificates. Archaic, Depression-Era laws created "amended" birth certificates, which replace the names of the adoptee's biological parents with those of the adoptive parents, and frequently falsify other birth information as well. The original records are permanently sealed in most states by laws largely passed after World War II, a legacy of the culture of shame which stigmatized infertility, out-of-wedlock birth, and adoption. In Scotland, adoptee records have been open since 1930, and in England since 1975. Sweden, The Netherlands, Germany, South Korea, Mexico, Argentina, and Venezuela are only a few of the many nations which do not prevent adult adoptees from accessing their own birth records. Why are they still sealed in most of the U.S.? Well-funded lobbies representing certain adoption agencies and lawyers have a vested interest in keeping adoptee records closed. They are working in several states to pass a "Uniform Adoption Act" that would keep adoptees' birth records sealed for ninety-nine years and in some instances criminalize searching for one's biological relatives. These special interest groups would continue to deprive adult adoptees of their rights, presumably to prevent the disclosure of their own controversial past practices (baby-selling, coercion, fraud), which are now hidden by state-sanctioned secrecy. While many adoptees search for their biological relatives to discover the answers to questions regarding medical history and family heritage, all adoptees should be able to exercise their right to obtain the original government documents of their own births and adoptions whether they choose to search or not. At stake are the civil and human rights of millions of American citizens. To continue to abrogate these rights is to perpetuate the stigmatization of illegitimacy and adoption, and the relegation of an entire class of citizens to second-class status. For everyone else, it's "Vital Statistics" -- for adoptees, it's "None of your business." All Americans, adopted or not, have a right to access government records about their own lives. Please join us in our fight to restore adoptee dignity and equality!
II. A History of Sealed Records in the U.S.Adoption records and original birth certificates have not always been sealed. Sealing records is, in fact, a relatively recent development in our nation's history. Birth certificates themselves only came to be required in the first decades of this century. Because they were marked "legitimate" or "illegitimate" in most states, and because of the stigma associated with illegitimacy, they were sealed to the public, but were available to the adoptee upon majority. The amended birth certificate, which names the adoptive parents in the place of the birthparents, was first proposed by two Registrars of Vital Statistics in 1931, and was utilized by most states by the end of WWII. In the decades leading up to WWII, court records and original birth certificates were sealed to the public, the explicit reason given being to protect the adoptive family from exposure to embarrassment or even blackmail regarding the illegitimate origins of the adoptee, or, in cases where the adoptee had not been told of the adoption, to keep that the prerogative of the adoptive parents. Many states sealed adoption records to birthparents as well, fearing their interference in the life of the adoptee. Nowhere in any of these original statutes is there is any reference to the protection of birthparents' privacy. After WWII, in most states records were sealed to all parties, largely on the recommendation of the Child Welfare League of America and other professional social work organizations. (However, these statutes usually included the provision that records could be opened by court order, and, in fact, many states still today have provisions on the books allowing release of records such as the adoption decree to the adoptive parent, or which allow the records to remain unsealed at the adoptive parents' request. Even in states where this is not officially codified, many adoptive parents routinely obtain records with the names of the birthparents on them at the time of the adoption, or can obtain them by request.) There are a number of reasons for this sealing. Social workers lobbied for greater "confidentiality" as a way of increasing their own power and boosting the prestige of their profession. The postwar demographic boom in single pregnancy saw a change in the demographic composition of birthmothers from primarily married or divorced working-class women who relinquished their usually older children for economic reasons, to younger, more broadly middle-class unmarried women who relinquished their children in infancy. The paradigm of the unwed mother had changed from her being congenitally feebleminded to being neurotic and therefore curable; it was deemed best for there to be a complete and early break between mother and relinquished child, for the sakes of both. The child was no longer seen as innately tainted by its illegitimate origins, but as a blank slate ready for the adoptive parents to write upon. The new, amended birth certificate and the permanently sealed original fostered the illusion of a brand-new family with no prior or potentially disruptive future connections to the birth family, a "selling device" for agencies to attract adoptive parents. It was assumed that "well-adjusted" adoptees would have no interest in their origins. While most states sealed their records in the forties and fifties, some states did not do so until much later, with PA sealing original birth certificates only in 1984 and Alabama in 1991; by 1998 only Kansas and Alaska still allowed unconditional access. In Nov. 1998, the voters of Oregon approved the Bastard Nation-inspired ballot initiative, Measure 58, which made Oregon the first state to open unconditionally previously sealed records to adult adoptees. After a series of unsuccessful court challenges, the law finally went into effect on May 30, 2000. Also in May 2000, with the full support of the Governor and Lt. Governor, a unanimous vote in the House and only two dissenting votes in the Senate, Alabama reversed its 1991 sealed records law and granted unrestricted access to original birth and adoption records to that state's adult adoptees. This was accomplished through the lobbying efforts of Alabamians Working for Adoption Reform and Education (AWARE), with the support of Bastard Nation and other adoption reform organizations.
III. The Adoption Reform MovementAlthough individual voices had been raised against the sealed records system in earlier decades, the 1970's saw the true beginning of the adoption reform movement in the U.S., as adoptees who had been born into that system came of age. The Adoptees' Liberty Movement Association (ALMA) was founded by adoptee Florence Fisher in 1971, an event that sparked the establishment of dozens of search and support as well as activist groups nationwide. ALMA strongly asserted that adoptees had an absolute right to their records, eventually filing a lawsuit challenging the sealed records law of New York State in 1977. Its failure saw the retreat of that group from open records activism to search and support. ALMA has a web site at http://www.almasociety.com. The American Adoption Congress (AAC) was formed in 1978 as an umbrella organization for the proliferation of search and support groups that had sprung up in the 1970's. The AAC's primary mission has been the education of American society to the value of greater openness in the adoption process, including not only open records for adult adoptees but also open adoptions, agreements by which birth and adoptive parents and their minor children maintain some level of contact. It has also addressed the issues of birthfather rights, surrogacy, and donor insemination. While its legislative policy statement indicates its support for unconditional access legislation, it also supports legislation that, "in the judgment of the Legislative Committee and the Board, represents realistic progress for a particular state." In practice, this has led to AAC support for veto, intermediary and registry bills, while its support of unconditional adoptee rights legislation and ballot initiatives has been lackluster at best. For this reason, many adoptee rights activists have questioned what the AAC really stands for, and whether it can be said to support open records at all. Its ranks, once largely made up of adoptees, now include a substantial population of confidential intermediaries, social workers, paid searchers and mental health professionals, leading some to question its ability to stay true to its professed desire to represent the interests of adoptees, birthparents and adoptive parents. Basing its argument on psychological need and pursuing a statistical goal of the greatest amount of information for the greatest number of adoptees, the AAC appears to be placing the desire of some adoptees for reunions ahead of universally-applicable civil rights. While its reunion-based legislative strategy is deeply flawed, the AAC has nevertheless made an important contribution to adoption reform by consistently arguing for more openness in the adoption process. One hopes that its commitment to more humane standards in adoption practice will not waver. The AAC has a website at http://www.american-adoption-cong.org The most important birthparents' organization is Concerned United Birthparents (CUB), founded by Lee Campbell in 1976. CUB gave a voice to those who had been silenced by the shame of unwed pregnancy and sealed records, in addition to advocating for open records. Unfortunately, being reunionist in its orientation, CUB has until now failed to support legislation which does not open records to birthparents as well as adoptees. On the other hand, CUB has often led the way in fighting reactionary legislation such as the Uniform Adoption Act. CUB has a website at: http://www.webnations.com/cub
IV. Conditional Access Legislation and other Legislative CompromisesConditional access legislation, which includes disclosure vetoes, contact vetoes, and intermediary systems, has often been used by adoption reformers in their efforts to try to win over legislators and pass bills. Some reformers claim that these conditional access bills serve as intermediate steps to true open records legislation. History, however, tells a different story. Once laws are passed, legislators are reluctant to revisit the issue of records legislation, which can result in future legislative changes being stalled for years, or even decades. Once they do revisit the issue, there is no indication that legislators are more inclined to openness than before the conditional access legislation passed, and in many cases that legislation itself creates an impediment in terms of legal precedent. Unrestricted open records for adult adoptees is the norm in most of the rest of the free world, and in Alaska, Kansas, Oregon, and Alabama. Conditional access legislation is the result of reformers allowing the debate to be framed in the opposition's terms. Access to one's birth certificate is a basic civil rights issue. Veto and intermediary systems skirt the issue by framing the debate in terms of birthparent privacy. In Doe v. Sundquist, which challenged a TN semi-open records law (it contains both contact and disclosure vetoes) on the grounds that it violated birthparent privacy, the Sixth Circuit Court of Appeals stated that "if there is a federal constitutional right of familial privacy, it does not extend as far as the plaintiffs would like." The opinion also cited a 1981 decision in which the appeals court found that "the Constitution does not encompass a general right to nondisclosure of private information." If there is no right to privacy that extends to birthparent anonymity, then there is no reason why an adoptee's right to access his original birth certificate should be impeded by special governmental controls to protect birthparents. Disclosure vetoes, by which an adoptee may access his original birth certificate only if his birthparent does not object, appear to vest birthparents with such a "right to privacy," making it all the more difficult for adoptee-rights advocates to argue that the law has never guaranteed anonymity to birthparents. Contact vetoes, whereby the birthparent or adoptee may file a statement that they do not wish to be contacted by the other party, and by which the searching party must abide or be subject to criminal penalties, are a violation of an adoptee's right to due process and equal protection under the law. Conditional access legislation in the form of the "contact veto" implies that adoptees and birthparents are not capable of handling adult contact. If either party in an adoption does not wish contact, they can simply say no, as in any other adult situation. If they feel they are being unduly harassed, they can use the same remedies at their disposal as other citizens. Traditional no-contact orders and orders of protection are issued via court order after a person has demonstrated a pattern of threatening or abusive behavior. Even then, the person who has the order issued against him has the right to answer and face his accuser in a court of law. Contact vetoes, however, are issued based solely on the adoptive status of an individual, and are without recourse. In open records states where no contact veto exists, such as Kansas and Alaska, there are no reports of incidents that would demonstrate a necessity for special protections of the birth family. Contact vetoes (CVs) were an experiment originating out of a law passed in New Zealand in 1986. New Zealand's law, which calls itself a contact veto system, actually functions as a "contact preference form" (CPF) since there is nothing legally requiring the adoptee to abide by the request of the person filing their contact preference form. Since such a system does not place a condition on access or criminalize an adoptee unfairly, CPFs are an acceptable compromise to Bastard Nation and were written into Bastard Nation-supported open records laws in both Oregon and Alabama. Interestingly, the NZ government itself has acknowledged their CPF system is a failure; adoptees often contact other members of the birth family when the birthparent has placed a "veto", thus causing the kind of exposure the birthparent wished to avoid in the first place. It can also be dangerous to write a contact preference system into proposed legislation from the beginning, as such a scheme can quickly be amended into a veto. Amending proposed open records legislation with a contact preference law should only be done when activists and their sponsor have a close and trusting relationship, and when the legislation can be assured of a better chance of passage with the sole addition of the contact preference amendment. Activists are encouraged not to include CPFs in ballot measure text, but rather once an open records measure has passed to use the CPF to head off any more dangerous legislative tinkering. True contact veto systems, which are opposed by Bastard Nation, exist in North America in British Columbia, Colorado, and Tennessee, and sprang from similar laws originating in the Australian territories, most notably when New South Wales passed its Adoption Information Act of 1990. Queensland has a similar veto law. Violating a contact veto in NSW carries monetary penalties as well as jail time. Similar penalties exist in the veto systems present in North America. Age of access is another issue which activists often have to contend with in lobbying open records legislation or writing ballot measures. There are three common ages of majority used in North America upon which a person acquires all (or most of) the rights and responsibilities of being an adult. These are 18,19, and 21. Bastard Nation therefore supports unconditional access legislation that sets the age of eligibility at any of these three levels. In other parts of the world, Bastard Nation supports setting age of access to correspond with a country's general trend in age of majority law. Adoptees have a right to access the records of their birth in the same manner as any other citizen of this nation; any legislation that is less than access on demand, without condition, is a violation of their basic civil and human rights. Conditional access legislation is an affront to the dignity and self-respect of adoptees as well; in the case of contact vetoes, treating adopted persons as criminals, in the case of disclosure vetoes, treating them as perpetual children who must have their birthmothers' tacit permission to access their own birth certificates, and in the case of intermediary systems, treating them as incompetent to manage their own personal affairs.
V. Know Thine EnemiesThe organized opposition to adoptee rights represents the full spectrum of mainstream political ideology in the United States, ranging from the far-right Christian conservatism of the Family Research Council to the left-liberalism of the ACLU and Planned Parenthood. In a political system where issues are usually framed in terms of conservatism and liberalism, what sense can we make of an opposition that cuts across these normally unbridgeable philosophical gulfs? The enemies of adoptee rights fall into two basic categories; ideological and industrial. Ideological opposition comes from various state chapters of the ACLU and Right to Life, organizations that do not have a financial interest in adoption. Industrial opposition is represented primarily by the National Council for Adoption (NCFA), and other adoption agency fronts, like Concerned Adoption Professionals (a political action committee, or PAC, formed specifically to fight Oregon's Ballot Measure 58). There is much overlap in these two categories, and the industrial lobbyists hold an inordinate influence among the ideological opposition, which often parrot the rhetoric of the adoption industry without change or commentary. Most ideological opposition organizes the debate around central issues which are actually peripheral to adoptee rights. Both Planned Parenthood and Right to Life oppose open records because they feel that access to, or frequency of, abortion will be affected by changes in the law. The state chapters of the ACLU that have come out against us have used a tortured argument based on non-existent privacy rights that neither the general public nor legislators have taken very seriously. Concerted outreach and education is effective in neutralizing this opposition, both with the general public and within the oppositional organization itself. The industrial opposition's motivation is much more transparent -- trade protection. In the years since Bastard Nation has shifted the discourse of adoptee rights from psychologically based pleas to straightforward assertions of civil rights, the rhetoric of the industrial opposition has shifted in reaction, revealing an honest apprehension of tort liability and systemic accountability. The Christian Right possesses qualities of both categories. As ultra-conservative think tanks heavily promote adoption as a primary remedy to a gallery of perceived social ills, large constituency churches (including the Church of Latter Day Saints) and their uxiliary organizations have entered the adoption industry to facilitate these theologically based social policies. Honing the existing rhetoric of the industrial lobbyists like the NCFA, these theological opponents of adoptee rights pose as our greatest potential opponents due to their extensive grassroots penetration and their enormous fundraising capabilities. Our greatest ally in the continuing struggle for adoptee rights is the average citizen, whose common sense and basic understanding of fairness and equality are qualities we can count on for support.
VI. The Model State Act, the NCFA and the UAAFor a brief historical moment in the late 1970's it looked as though the tide might turn in the direction of open records. In 1978, President Carter convened a panel of independent experts in the field of child welfare to address the issue of 'special needs' adoption and to draft some model state legislation. The panel instead came up with a Model State Adoption Act that would open records to adult adoptees and instruct adoption agencies to serve as intermediaries in searches by birthparents for their adult adopted children. It is at this point that a crucial period in modern-day adoption reform began. In response to this proposed legislation, the Edna Gladney Home, an adoption agency in Fort Worth, Texas, went to its supporters, comprised mainly of adoptive parents, to raise money for a lobbying organization to defeat the open records provisions of the Model State Adoption Act. The result was the National Committee for Adoption, now the National Council for Adoption. With William Pierce at its helm, the NCFA convinced senators such as John Tower and Jeremiah Denton to argue that open records threatened adoption, and when Reagan entered the White House the original Model State Adoption Act had been supplanted by an anemic version that did away with the open records provisions, as well as many other reforms. The shortened act formed the basis of the Uniform Adoption Act currently making the rounds in several state legislatures at the urging of the NCFA. Under fire from both his traditional enemies, and increasingly from his traditional allies, who began to take a more moderate position on adoptee rights issues, Pierce began to strike back through the NCFA's newsletter and in other media forums throughout the late 1990s. The passage of Oregon's open records ballot Measure 58 seemed to unhinge him further, and led to a series of increasingly erratic public quotes. In early 1999, the NCFA announced what appeared to be Pierce's forced "retirement," and their intention to launch an executive search to replace him. It remains to be seen whether the NCFA will continue its anti-adoptee agenda under new leadership, or whether Pierce will continue to carry the mantle under the auspices of a different organization. The Uniform Adoption Act was drafted by a study committee of the National Conference of Commissioners on Uniform State Laws and formally accepted by them in 1994, despite outrage and condemnation from national organizations as diverse as the Child Welfare League of America, National Association of Social Workers, Adoptive Families of America, Catholic Charities USA, American Adoption Congress, Concerned United Birthparents, National Adoption Center, Adoption Exchange Association, Children Awaiting Parents, and the Joint Council on International Children's Services. The Uniform Adoption Act seals adoption records for ninety-nine years, potentially criminalizes searching, does not define non-identifying information, and creates a muddled mutual consent registry that virtually ensures that no exchange of information, even between willing parties, will be made. The act allows a birthmother to relinquish a child without the consent of a birthfather if she states that his whereabouts are unknown or that she does not know the birthfather's identity, and establishes revocable consent periods of a dismal eight days from the birth of the child. The sections on pre-placement evaluations of prospective adoptive parents are clearly intended to make it easier for couples to adopt rather than ensure that the best interests of the child are being served. In fact, the entire UAA is clearly meant to expedite adoptions by increasing the number of babies available through shorter consent periods and lack of adequate birthfather notification controls, removing barriers to transracial adoption, terminating former contact agreements between original families and their children, and providing for easier home studies that are effective for eighteen months rather than the now-standard thirty days. Critics describe it as defining adoption as a near-contractual agreement among consenting adults regarding newborns. All reference to special needs adoption, including older children, and the placement needs of foster children, the initial concerns of the Model State Act, is gone, leading to its being perceived as facilitating the business of adoption rather than regulating a social service to provide families for children. The Uniform Adoption Act, like all model acts, can be introduced and passed in whole or in part by state legislatures. To date, the UAA has been roundly rejected by the states, which is encouraging. Authors of other sections of the UAA, such as Joan Hollinger, have been deeply critical of Pierce's role in the sealed records and anti-search provisions, as his insistence on including them has greatly lessened the credibility of the Act as a whole, and generated enough opposition to preclude the passage of the UAA in any form. See http://www.bastards.org/activism/antievil.htm for the text of the UAA and position papers from organizations opposing it.
VII. Do Birthparents Have A Right to Privacy?One of the main concerns raised by those who oppose opening records to adult adoptees is that doing so violates their birthparents' right to privacy. Open records proponents have long argued that there is no right to privacy that extends to birthparent anonymity, and on February 11, 1997, the Sixth Circuit Court of Appeals handed down a decision confirming this view. (106 F.3d 703 (6th Cir. 1997)) In 1996 the TN legislature passed a law granting certain adult adoptees access to their original birth certificates, subject to contact vetoes and significant exception clauses. The law was halted by a court injunction when a group of birthmothers, adoptive parents, and an adoption agency filed suit claiming the law violated their constitutional rights under both the Tennessee and Federal Constitution. The federal case ended in 1998 when the U.S Supreme Court declined to overrule the Appeals court ruling in favor of the defendants and open records. The courts rejected the plaintiffs' claim that their right to privacy was infringed upon, stating "A birth is simultaneously an intimate occasion and a public event -- the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth." The judges of the Sixth Circuit Court further found that "if there is a federal constitutional right of familial privacy, it does not extend as far as the plaintiffs would like." The court also cited a 1981 decision in which the appeals court found that "the Constitution does not encompass a general right to nondisclosure of private information." More directly, the Court found that the interest of an adoptee to know who his or her birth parents are is "an interest entitled to a good deal of respect and sympathy." The right to privacy, an implicit right that is not found specifically within the U.S.Constitution, requires case law to flesh it out and define it further. Our nation's courts have spoken clearly that the right to privacy does not extend to withholding birth information from the very person to whom it primarily pertains -- the adoptee. Despite the finding that birthparent privacy rights do not extend as far as keeping their names secret from adoptees, opponents of open records have continued to claim that some birthparents, particularly women, would be harmed emotionally if they were to be contacted by a relinquished child who reached the age of majority. In addition, some reproductive rights advocates believe that sealed birth records should be an option for pregnant women who choose not to raise a child. In reality, their adult children, raised by others, are not the enemies of birthparents. Our laws and policies should not deprive one group of their rights in order to protect others from possibly having to face the consequences of their past choices. In the event that an adoptee chooses to contact a birthparent, both people should consider the feelings and concerns of the other. When birth records are opened to adult adoptees, a woman who relinquishes an infant will have 18 to 21 years to decide how to answer a possible phone call from that adult child. Even today, with records still sealed in most states in the U.S., birthparents must consider their responses to being found, since a network of search consultants has arisen to circumvent sealed records. Most birthparents are happy to be contacted by their adult children. A right to privacy that prevents the disclosure of birthparents' names to adult adoptees does not exist, in law or in the real world.
VIII. Open Records Do Not Equal Higher Abortion or Lower Adoption RatesMany opponents of open records for adult adoptees have claimed, with no basis in fact, that young, pregnant women would choose abortion over adoption if their relinquished children would be able to discover their birthmothers' names in eighteen years' time. They also claim that open records would lead to a decline in adoption rates, as potential adoptive parents would be discouraged by a system in which their children would no longer be permanently denied their own birth records. Both these claims belong in the realm of myth and propaganda, and may be countered by statistical evidence to the contrary. While there are many factors that determine abortion rates in various states and countries, and it cannot be claimed that open records bears a causal relation to lower abortion rates, it can, however, be shown that abortion rates are not higher, and are in fact lower, in open records states than in states with sealed records. It can likewise be shown that states and countries with open records have not seen a decline in adoption rates. The abortion rates for Alaska and Kansas (states which unconditionally grant adult adoptees access to their original birth certificates) were both LOWER in 1996 than the rate than for the United States as a whole -- 14.6 and 18.9 abortions, respectively, for every 1000 women between the ages of 15 and 44, while the national abortion rate was 22.9 [Alan Guttmacher Institute http://www.agi-usa.org/pubs/journals/3026398.html] Data compiled by the Alan Guttmacher Institute showing the number and rate of abortions in England and Wales by years for 1961 through 1987 indicate a continuous increase in abortions and abortion rates from 1961 through 1973. In 1974 through 1976, when the opening of adoption records was discussed in Parliament and put into effect, abortions and the abortion rate DECREASED. 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)]. Barbara Flett, Registrar of the New South Wales Registry of Births Deaths and Marriages, issued a declaration submitted for evidence in the TN conditional records access case, Doe v. Sundquist [Affidavit of Frederick F. Greenman, August 27, 1996 ] which showed the numbers of adoptions in New South Wales from 1970 through 1995. The New South Wales Adoption Information Act 1990, which became fully effective on April 2, 1991, made original birth certificates accessible as of right to adoptees. The data from the Registry of Births, Deaths and marriages set forth in Ms. Flett's letter show that adoptions peaked in 1972 and then began a decline which has continued steadily to the present day. Prior to the unsealing of adoption records in 1991, adoptions had declined from 4,564 in 1972 to 688 in 1990, a decline of 85 percent. The rate of decline after 1990 shows no significant change from the previous decline, and indicates that the opening of adoption records had no measurable effect on the numbers of adoptions. Annual adoption figures for England and Wales for the years 1960 through 1984, taken from official publications of the United Kingdom Registrar General and the United Kingdom Office of Population Censuses and Surveys, for non-parental (i.e non-step parent or interfamilial) adoptions by couples in England and Wales declined continuously from a peak of 14,641 in 1968 down to 1984, which appears to be the last year for which these data were published. From the start of the decline in 1968 until 1976, when adoption records were unsealed, the relevant adoptions declined from 14,641 to 4,777, a decline of 67 percent in eight years, in the following eight years, after the records were unsealed, these adoptions declined to 2,910, a decline of only 39 percent. If the unsealing of adoption records had any effect in England and Wales, therefore, it was to reduce the decline in adoptions, i.e. to increase adoptions over the numbers that otherwise would have obtained.
IX. Constitutional Issues and Open Records for Adult AdopteesConstitutionality is a complicated issue in the sealed/open records debate, with both sides claiming constitutional arguments. Many times over the years adoptees have questioned the nature of sealed records with regard to their civil rights. Two class action suits were brought during the very active reform period of the late 1970's. Yesterday's Children, an IL adoptee activist group, filed a class action suit in 1975, claiming that sealed records violated their constitutionally protected rights as articulated in the First, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. They lost on jurisdictional grounds, with the court appearing to hold that the issue of sealed records was not one of constitutionality, and belonged to the states. Yesterday's Children appealed all the way to the United States Supreme Court, which declined to hear the case in 1978. (Yesterday¹s Children v. Kennedy, 569 F.2d 431 (7th Cir. 1977), cert.denied, 437 U.S. 904, 98 S.Ct. 3090 [1978]). ALMA filed a class action in New York in 1977. ALMA argued that sealed records violate the First, Fourth, Ninth, Thirteenth and Fourteenth Amendments. The court summarized their arguments as that sealed records: 1) discriminate against adoptees, who are a suspect classification under the Fourteenth amendment 2) "infringes the right to privacy in matters of family life" 3) "denies adoptees their right to acquire useful information" which is a "corollary of the right of free speech" 4) are a "badge of slavery" and thus "forbidden by the Fourteenth Amendment." ALMA also lost. (ALMA Society Inc. v. Mellon, 459 F.Supp 912 (S.D.N.Y.1978), aff¹d, 601 F. 2d 1225 [1979], cert. den. 444 U.S. 995, 100 S.Ct. 531, 62 L.Ed.2d 426.) In addition to overcoming these hurdles of past bad precedent, in order to successfully claim a constitutional violation, adoptees would have to be recognized as a suspect class (entitling them to a higher level of judicial scrutiny), something the courts have thus far refused to do. Adoptees are far more likely to achieve open records on the statutory rather than the judicial front. In 1996, Tennessee became the first state in the U.S. to pass a substantive semi-open records law since records were first sealed several decades ago. The legislation opened original birth certificates to most adult adoptees; however, it contains provisions for contact vetoes as well as disclosure vetoes for those adoptees who were conceived from rape or incest. The law was challenged at both the federal and state levels in a lawsuit brought by two birthmothers, an adoptive couple, and Small World Ministries, the only adoption agency in Tennessee affiliated with the National Council for Adoption. Attorneys for the plaintiffs were affiliated with the American Center for Law and Justice, or ACLJ, a Pat Robertson project that serves as the rightwing equivalent of the ACLU. The plaintiffs in the case asserted that opening records to adult adoptees violated their right to privacy, their parental rights, and their right to equal protection as guaranteed by the Fourteenth Amendment to the U.S. Constitution. The "right to privacy" is a slippery legal concept that is not found anywhere explicitly in our Constitution. In the TN case, the plaintiffs relied on the fact that the Supreme Court has recognized that the familial rights to marry, establish a home, and raise children are fundamental privacy interests entitled to constitutional protection. (Prince v. Massachusetts, 321 U.S. 158 [1944], reh'g denied, 321 U.S. 804 [1944].) Additionally, the Court has held that a woman's decision whether or not to carry a pregnancy to term is a protected, fundamental privacy right. (Roe v. Wade, 410 U.S. at 152.). They also argued that the "zone of privacy" established in Griswold v.Connecticut, 381 U.S. 479 (1965), encompasses familial privacy, reproductive privacy, and privacy against disclosure of confidential information. In handing down his decision in August, 1996, Judge Nixon of the U.S District Court sided with the defendants, who argued that the right to privacy did not extend to the nondisclosure of personal information. In his opinion, Nixon stated ..." the Court finds that the Plaintiffs' claims are more accurately analyzed in terms of the release of confidential information, rather than in terms of familial privacy. The Act does not directly impinge upon birth parents' rights to subsequently marry, have, and raise children as they see fit, or upon adoptive parents' right to raise their adoptive children as they see fit. Thus, the Act does not fall within the scope of a Constitutional right to familial privacy and autonomy as deemed by case law." The opinion by Nixon goes to the very heart of the right to privacy argument, dismissing it at its most fundamental level. The plaintiffs appealed the decision to the Sixth Circuit Court of Appeals, which leveled an even more devastating blow to opponents of open records in their February 11th, 1997 opinion. Judges Martin, Engle and Cole upheld Nixon's ruling with prejudice, writing "A birth is simultaneously an intimate occasion and a public event - the government has long kept records of when, where, and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth. The Tennessee legislature has resolved a conflict between that interest and the competing interest of some parents in concealing the circumstances of a birth. We are powerless to disturb this resolution unless the Constitution elevates the right to avoid disclosure of adoption records above the right to know the identity of one's parents." They cited an earlier opinion in which they stated that "the Constitution does not encompass a general right to nondisclosure of private information." (Doe v. Sundquist, 943 F. Supp. 886 [M.D.Tenn. 1996], aff'd, 106 F.3d 703 [6th Cir. 1997]) The plaintiffs appealed to the U.S. Supreme Court, which denied certiorari (declined to hear the case) in October of 1997, upholding the Sixth Circuit decision, and ending the federal case. On the state level, the case was remanded back for trial; the Tennessee Supreme Court ruled on an appeal of that decision on September 27, 1999, stating that "We agree with the trial court that retrospective application of legislation allowing disclosure of adoption records to adopted persons over the age of 21 does not impair the vested rights of birth parents in violation of article I, section 20 of the Tennessee Constitution, nor does it violate the right to privacy embraced in the Tennessee Constitution. We therefore reverse the Court of Appeals' judgment and reinstate the judgment of the trial court." This put an end to all challenges, and the law went into immediate effect. After the 1998 passage of Measure 58 in Oregon that gave adult adoptees unconditional access to their original birth certificates, sealed records proponents again launched a legal challenge. Six anonymous birth mothers represented by Franklin Hunsaker, an adoption attorney and adoptive parent, with support from the NCFA, filed suit in Oregon's state circuit court. The suit alleged that Measure 58 violated the contract clauses of the Oregon and U.S. Constitutions, the "zone of privacy" established in Griswold v.Connecticut, 381 U.S. 479 (1965), and the due process clause of the U.S. Constitution. Plaintiffs further alleged that Measure 58 deprived them of the equal protection of the law guaranteed by the U.S. and Oregon Constitutions, and interfered with their rights to freely exercise their religion and their rights of conscience. One of the most creative aspects of the Measure 58 lawsuit, however, was the plaintiffs' claim that opening birth certificates to adult adoptees was a violation of the doctrine of "equitable estoppel." This doctrine, commonly used in contract law, is generally utilized to prevent a changing of the rules midstream. The elements of estoppel include an assurance, explicit or implied, given by one party, detrimental reliance on that assurance by another party (the second party is in a state of dependence on the assurance), and a result of material loss or harm if the person who wants to go back on the assurance is allowed to. The uniqueness of the plaintiffs' estoppel claim lies in the fact that one of the parties the plaintiffs were attempting to "estopp" was the state itself, implying that once a law was enacted it could never be changed. Circuit court judge Paul Lipscomb ruled for the defendants in mid-1999, thus upholding the passage of Measure 58. In his opinion Judge Lipscomb stated, "...this court may not set aside Measure 58 unless it runs afoul of the Oregon or United States Constitutions. It is my conclusion that it does not. ... Even assuming birth records to be an intimate personal matter, the effect of Ballot Measure 58 is only to give access to the person born, not to the general public. And significantly, there was no privacy or confidentiality at all which was attached to adoption records at the time of the enactment of either Constitutions." In dismissing the plaintiffs' claims that Measure 58 interfered with their freedoms of religion and conscience, Lipscomb concluded, "The Measure, however, is a religiously neutral law of general applicability, and therefore does not violate any protections afforded to religious beliefs and practices by the Oregon and U.S. Constitutions." The court also rejected the esoteric estoppel claim, commenting briefly that, "Assuming that the State could ever be estopped from changing any law, such an estoppel would create only a defense and not an affirmative cause of action against that public body. Equitable estoppel has never been a recognized cause of action even against a private entity; only a potential defense to an opponent's claims." Plaintiffs appealed the Lipscomb decision to the Oregon Court of Appeals, which on December 29, 1999, upheld the lower court's ruling in a sweeping and detailed opinion which provided adoptee rights proponents with a great deal of positive case law. In ruling on the plaintiffs' claims that Measure 58 impaired a contract between birthmothers and the state, the court opined, "The pre-Measure 58 statutory scheme governing adoption records and birth certificates simply does not contain any unambiguous expression of legislative intent to enter into a statutory contract with birth mothers to prevent the disclosure of their identities to their adopted children without their consent." And further: "At no time in Oregon's history have the adoption laws required the consent of, or even notice to, a birth mother on the opening of adoption records or sealed birth certificates. Moreover, the laws do not demonstrate a legislative intent to elevate considerations of a birth mother's desire for confidentiality over the legitimate needs of other interested parties in obtaining information concerning the birth. See, e.g., ORS 7.211; ORS 432.230 (placing no specific limits on the discretion of courts to order adoption records and birth certificates to be unsealed)." In dismissing the right to privacy claim of the anonymous birthmothers, the court concluded, "In sum, neither Article I, section 1, nor Article I, section 33, lend any support to the idea that the framers of the Oregon Constitution intended to confer on birth mothers a constitutional right to conceal their identities from their children." In perhaps the most ringing endorsement of open records to date, the court concluded: "Neither a birth nor an adoption may be carried out in the absolute cloak of secrecy that may surround a contraception or the early termination of a pregnancy. A birth is an event that requires the generation of an accurate vital record that preserves certain data, including the name of the birth mother. That the state has a legitimate interest in preserving such data is not disputed here. We recognize that a birth mother may well have a legitimate interest in keeping secret the circumstances of a birth that is followed by an adoption and also that an adoptee may have a legitimate interest in discovering the identity of his or her birth mother. Legitimate interests, however, do not necessarily equate with fundamental rights. The state may make policy choices to accommodate such competing interests, just as the state has done with the passage of Measure 58. We conclude that the state legitimately may choose to disseminate such data to the child whose birth is recorded on such a birth certificate without infringing on any fundamental right to privacy of the birth mother who does not desire contact with the child." However, the anonymous birthmothers were successful in receiving a stay pending the outcome of an appeal to the Oregon Supreme Court. That court declined without comment to review the appellate court ruling in March 2000. Plaintiffs' request to the U.S. Supreme Court for an emergency stay pending that court's decision whether to hear the case was denied, and Measure 58 went into effect on May 30, 2000, nearly nineteen months after it had passed. It is richly ironic that the decisions in these cases, instigated by anti-adoptee sealed-records zealots such as the NCFA, will probably be remembered as the most significant and positive events in the history of open records reform.
Glossary:
X. Open Records Around the WorldSealed records are now the exception globally, and the trend is toward the repeal of anti-bastard laws. The U.S. and a handful of others are among the last hold-outs to records reform. The Anglo-Celt Countries:Common Law countries, such as England and Australia, tend to have biases favoring "blood ties," families and privacy. From the '70s onward, these biases have resulted in a trend toward open records. Previously, these same biases meant discrimination against bastards. In general, with the exception of Canada, records are open in these countries, subject to occasional vetoes. The U.S. and Ireland share many of the same biases but have radically different adoption traditions which still retain sealed records. For example, the American system is founded on a complex combination of Imperial Roman Law and modern technocracy. This system gives state governments unique powers over families and has generated a vast quasi-private bureaucracy, both of which factors present impediments to openness. The U.S., Canada, Ireland and a few others have activist adoptee groups. Other First World Traditions:Continental Europe, Quebec, Japan and Korea have divergent adoption customs using, for the most part, Civil Law traditions. Birth certificates and sometimes other adoption records are available to adoptees in most of these places, with Luxembourg and Quebec among the few exceptions. Scandinavians have some of the most progressive open records systems. Adoptees report de facto impediments to accessing records in some countries despite having some legal rights to them. For instance, France, Quebec and Korea boast large numbers of foundlings and victims of the church- or state-sanctioned destruction of records. Adoptee activism focuses on breaking down the stigma of bastardy and removal of de facto barriers to openness. Developing World:Practices in the developing world vary widely. In most countries, records were never explicitly sealed, with exceptions including China, India and Poland. Generally, focus has been around the care of unwanted children rather than adoptee rights. In Argentina, adoption and sealed records were used by past regimes to facilitate the kidnapping of infants and to coerce adoptions. Argentinean activists now play a significant role in promoting the concept of open records as a universal right. International Polity:Countries have begun to develop a consensus about human rights. A number of key international agreements, such as the Convention on the Rights of the Child, recognize a right to identity. Other rights recognized include freedom from discrimination due to the circumstances of one's birth and the freedom to know and celebrate one's biological heritage. These agreements have given rise to the International Council on Social Welfare's adoption Guidelines. The Guidelines enshrine the concept of open records and ethical adoption practices, and form an alternative "universal adoption act" increasingly popular throughout the world, although universally ignored in the U.S. They may be found at: http://www.adoptionscentrum.se/guidelines/english.htm American citizens do not have the right to appeal to international authorities for alleged violations of human rights. Moreover, the U.S. is the only sovereign country that refuses to ratify the Convention on the Rights of the Child. A Publication of
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