Open records have a debate in the adoption world. Here are some details.
The Issue – Summary
One of the hottest issues in adoption today, not only in the U.S., but around the world as well, is whether or not adoptees should have unrestricted access to their original adoption records when they reach the age of majority as defined by law in their state or country. In the U.S. and Canada, adoption law differs from state to state and province to province, and each jurisdiction treats this question differently.
In the U.S., currently 45 states do not allow adult adopted persons to receive or even look at a copy of their original birth certificate (OBC) (or any other uncensored original record), just by simple application, the way non-adopted persons can, although many who aren’t connected to adoption often assume that they can.
In all states in the U.S., when adult adoptees go through the same process as non-adopted persons* to request a copy of their birth certificate, they receive an amended birth certificate which shows their adoptive parents’ names only. This document contains no information about anything pre-adoption: biological parents’ names, their own birth name if one was given, etc.
(* In “open records states,” there is a separate procedure for requesting a copy of the OBC.)
What You Need to Know
For purposes of this article, “open records” refers to records access by adult adoptees only (not birth parents and/or adoptive parents).
The three major positions are:
- In favor of unrestricted access by adult adoptees, i.e., apply and receive.
- Against unrestricted access.
- In favor of access by adult adoptees but willing to compromise and accept restrictions if it will help get laws changed.
Adoptees and Their Records
An adoptee’s “records” include:
- the adoption decree
- information about birth parents and their families gathered during pre-placement interviews
Open Records States
As of this writing, there are four states an adult adoptee whose adoption was finalized in that state with a copy of his/her OBC (and perhaps other information) on request, without restriction:
- New Hampshire
Several states offer restricted access. Restrictions include vetoes, required parental permission even for adults, mandatory intermediaries, and open records for adoptees born in certain years. Proposals to change the laws being considered in several states.
Why Records Were Sealed
Until the early part of the 20th century, adoption documents were treated as public records. The practice of “sealing” these records away from the public eye and issuing amended birth certificates began during the 1930s, 40s, and 50s. Prevailing attitudes held that all parties named in the documents (adoptees, birth parents, adoptive parents) needed to be protected from the social stigma associated with illegitimacy, infertility, poverty, mental illness, addiction, and any of the myriad of reasons that might have been associated with the reasons children were placed for adoption and the reasons children were adopted. “Sealing” these records was seen as an effective and necessary (at the time) means of “keeping the silence,” and most states enacted laws to do this.
In the broadest social arena, the second half of the 20th century saw an emphasis on equal rights of groups and individuals, a growing awareness of the importance of identity, and a widespread rejection of the “code of silence” observed by previous generations. Everyone began talking… about everything. The adoption community was not immune to these changes and the raised voices of this once-silent group have brought this issue (and others) to the fore. The Internet has served to bring similar-minded people together from geographically distant places, and the Web became the birthplace of the open records reform movement. It is here, on the Web, that adoption conservatives and liberals have come to continue the debate.
The Scope of the Debate
How many are interested in this issue? The number of adoptees in the U.S. alone is estimated to be around 6 million. Add birth parents and adoptive parents for each one, the other members of adoptive and birth families, adoption professionals, counselors, judges, attorneys, and corresponding groups in other countries, and it’s impossible to count the millions who are potentially interested in this debate.
For purposes of this article, the many possible variations within each position have been distilled into three major groups.
PRO: For Open Records
What They Say
Those in favor of open records are advocating for the equal right of unrestricted access to original birth records for all adult adopted persons, i.e., the same right given to non-adopted adults.
They further support that:
- birthparent privacy is not an open records issue, since “open records” simply means access to the information, not a mandate for contact,
- open records are not a threat to adoptive parents, and
- instances of abortion will not increase with open records, among others.
Why They Say It
A synopsis of the main arguments supporting open records.
A separate class: This group believes that any form of restriction (court order only, vetoes, intermediaries, mutual consent, etc.) serves to separate adult adoptees as a “class” of people, and treats them not as adults but as children who need the supervision of others.
Secrecy implies shame: Adoption author Marcy Axness writes, in Painful Lessons, Loving Bonds: “If we didn’t find (adoption) so contemptible, so laced with shame, why would our laws be so vehemently constructed to protect everyone from the shame returning to their doorsteps?”
Fundamental right to know: Judge Wade S. Weatherford, Jr., Seventh Judicial Circuit Court, SC, said in a ruling on an adoptee’s petition to gain access to adoption records: “Mankind is possessed of no greater urge than to try to understand the age-old question: ’Who am I?’ ’Why am I?’… Those emotions and anxieties that generate our thirst to know the past are not superficial and whimsical. They are real and they are ’good cause’ under the law of man and God.”
CON: Against Open Records
What They Say
The main argument put forward by those who oppose open records is that birth parents do not want their identities revealed. Additionally, many feel that if the possibility of anonymity is not preserved, abortion rates will climb as women choose not to risk the chance that their information will be released. Many opponents do support the release of information by court order (as prescribed by law) and sometimes through the use of state-run mutual consent registries where information can be exchanged as prescribed by law if both parties agree.
Why They Say It
The expectation of privacy: Opponents claim that many birthparents made their decisions based on the expectation, erroneous or not, of a lifetime guarantee of anonymity, even from their children.
The right to privacy: Open records opponents believe that access to their adoption records would violate birthparents’ fundamental right to privacy.
Abortion: Some believe that abortion rates will climb if women feel their anonymity cannot be preserved in an adoption placement.
What They Say
This group will accept compromise measures, including contact and disclosure vetoes, and confidential intermediaries, in order to get some legislative changes passed. This allows access to records for adult adoptees only after intervention by and/or receiving permission from someone else.
Why They Say It
This group supports open records but believes that any change to the law is better than none. “It’s better than nothing,” is an oft-heard comment.
It’s hard to name the major players in this group since individual legislative battles have sometimes resulted in compromise where none was expected, and other groups that were expected to compromise have withdrawn instead.
© Nancy S. Ashe