Open Adoption History

Open Adoption- Introduction

Adoptions have been open throughout most of US history. In fact, prior to the 1930s, most state governments did not have laws regulating the privacy of adoption records. Until that point, court records, birth certificates, adoption records, and other official documents, such as those related to a person’s marital status and court proceedings, were generally considered freely available to the public. Then, beginning in 1917, with one state beginning to restrict adoption records, a trend began that would grow slowly over the next four decades until nearly all of the states had similar restrictions on adoption records.[1] As closed adoptions became more prevalent in the 1960s, the movement to return to open adoptions began.

Reasons for Change

There were a few reasons that have been credited for the start of the movement to return to open adoption. One reason was the change in sexual practices, which reduced the stigma on unwed women having children.[2] At the same time, psychologists began to publish studies about the specific stages of grief and how important it was for adults and children to experience and express those different stages in an appropriate manner. The studies showed that children have the same feelings of grief as adults and if not dealt with properly, then these feelings of grief can turn into serious emotional problems.[3] Another argument that was given in support of the open adoption process was the unanswered questions that a child would have, such as “Who are my birthparents?” and “Why am I not with them?”, would detract from the psychological energy that is normally focused on growth. At the very least, the energy, both mentally and physically, that would have been spent on other things such as school work, would now be spent on trying to answer those questions. Kathleen Silber argues in her book, Dear Birthmother: Thank You for Our Baby, that having these unanswered questions could actually stunt a child’s psychological growth.[4]

Legal Arguments for Open Access

An article from the journal Social Service Review entitled “The Sealed Record in Adoption Controversy” summarizes some of the legal arguments that have been used to argue the benefits of granting access to birth and adoption records. The article argues that the right to access adoption and birth records is guaranteed by the Fourteenth Amendment to the Constitution’s equal protection clause. The argument is based on the idea that by classifying someone as an adoptee, they are denied the same rights as those who were not adopted. For example, adults who were not adopted are viewed as having the right to access their birth records, but those who were adopted have been told that they do not have that same right.[5] Additional constitutional arguments have been given based on the First Amendment free speech clause, the right to privacy granted by the Fourth Amendment, and the right to know, which the article argues comes from the Ninth Amendment.[6] The free speech argument is based on U.S. Supreme Court cases where the Supreme Court has declared that people not only have right to say what they want to say, but they also have a fundamental right to receive information as well; especially information that pertains to their well-being or might inhibit their ability to grow.

"The right to receive [information] is as essential in the personal life of an individual as his public decision making, for in order to develop into an integrated, healthy person capable of intelligent participation, the individual needs to have access to information and ideas which will contribute to his self-fulfillment. Since the information the adoptee desires will enhance his sense of identity and therefore his ability to participate intelligently, the right to secure information must protect the adoptee's access to his birth certificate."
[7]

In a U.S. Supreme Court case from 1973, U.S. Supreme Court Justice Douglas (quoted in “The Sealed Record” article) states that the constitutional right to privacy covers the “freedom of choice in the basic decisions of one's life . . . ” which has been argued as including the right to control the information surrounding your birth. “The Sealed Record” article also argues that the Ninth Amendment guarantees the right to know your birth record. The text of the Ninth Amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[8] The article argues that since it can be very detrimental to a person’s development to not know their natural heritage, the U.S. Supreme Court, which has granted individuals unenumerated constitutional rights (rights not specifically mentioned in the constitution) before, would have good cause to grant adoptees the constitutional right to access their birth records.

Searching for Birth Records

Though the government may still not officially grant individual adoptees the right to access their birth records, individuals continue to search for their birth information. Many individuals, while searching for their birth information, found aid and comfort in their searches by forming various groups to help search for birth families. The first search group for adult adoptees trying to find their birth parents was the Colorado-based Orphan Voyage, organized in the 1950s by Jean Paton, who is considered by some to be the founder of the open adoption movement.[9] Jean Paton, who was a social worker and an adoptee herself, once said of adoptees, “In the soul of every orphan is an eternal flame of hope for reunion with those he has lost through private or public disaster.”[10]


Return to Adoption History


References

  1. Lois R. Melina and Sharon K. Roszia, The Open Adoption Experience: A Complete Guide for Adoptive and Birth Families−from Making the Decision Through the Child’s Growing Years (New York, NY: HarperPerennial, 1993), 4, and Elizabeth J. Samuels, “The Idea of Adoption: An Inquiry in the History of Adult Adoptee Access to Birth Records,” Rutgers Law Review 53 (2001): 368, accessed November 10, 2014, http://www.lexisnexis.com.byui.idm.oclc.org/lnacui2api/api/version1/getDocCui?lni=43JW-YK40-00CW-F0SY&csi=140725&hl=t&hv=t&hnsd=f&hns=t&hgn=t&oc=00240&perma=true.
  2. Melina and Roszia, Open Adoption, 7.
  3. Melina and Roszia, Open Adoption, 7.
  4. Kathleen Silber, Dear Birthmother: Thank You for Our Baby (San Antonio, Texas: Corona Publishing Company, 1982), 29.
  5. C. Wilson Anderson, “The Sealed Record in Adoption Controversy,” Social Service Review 51, No. 1 (March, 1977): 148.
  6. Anderson, “The Sealed Record,” 148-149.
  7. Quote originally from Carolyn Burke, "Adult Adoptee's Constitutional Right to Know His Origins," Southern California Law Review 48 (May 1975): 1199-211. Quote was obtained from Anderson, “The Sealed Record,” 149.
  8. U.S. Const. amend. IX
  9. Katarina Wegar, Adoption, Identity, and Kinship: The Debate over Sealed Birth Records, Yale University Press, (New Haven, Connecticut: 1997), 19, and Anderson, “The Sealed Record,” 142-143.
  10. Barbara Bisantz Raymond, The Baby Thief: The Untold Story of Georgia Tann, the Baby Seller Who Corrupted Adoption, Sterling Publishing Company (New York, New York: 2007), 204.