Tuesday, June 28, 2005

Advocates of open adoption records say they’ll continue fighting for the rights of adopted children to discover the identity of their birth parents, despite recent setbacks for their cause.

Earlier this month, Colorado Gov. Bill Owens, a Republican, signed a law on “sealed” birth records in adoptions.

Lee Allen of the National Council For Adoption (NCFA) says the Colorado law is a hard-fought victory for upholding birth parent confidentiality and privacy. “It’s really a common-sense thing,” he said.

Denver adoption activist Rich Uhrlaub and other adult adoptees say the new law “accomplished nothing in terms of adoptee rights” because it still doesn’t allow them their original birth records without someone else’s permission.

“It’s about a piece of paper and adulthood,” Mr. Uhrlaub said. “Everyone named on [birth records] should have equal access to it. States shouldn’t intervene when everybody’s an adult.”

What Colorado’s adoption battle shows is that, even after 35 years of debate, the “open records” issue is still personal and volatile.

The Colorado law, for instance, was introduced as a bill giving adult adoptees access to their original birth records upon request. But at the last minute, lawmakers voted to change the bill and keep birth records private unless birth parents authorized their release.

This, of course, is a Catch-22 for most adoptees because “it’s hard to get consent from someone whose name you don’t know,” Mr. Uhrlaub said.

In the past century, adoption-record policies have gone through similarly dramatic changes. Birth records used to be public, which meant anyone could see anybody else’s birth certificates, including those stamped “Illegitimate.”

Eventually, states started sealing birth records so the public couldn’t snoop and birth parents couldn’t track down the children they had given up for adoption. However, even under these restrictions, adoptees were always allowed to see their own birth records as a normal and natural right, according to research by Elizabeth J. Samuels, who teaches at the University of Baltimore School of Law.

In the 1950s, states slowly began sealing original birth records to everyone, including adoptees, unless they had a court order to open them, Ms. Samuels said in a paper published in 2001 in the Rutgers Law Review.

The primary motivation for these sealings was to stop birth parents from finding and “interfering” with adoptive families, she wrote. But there also was an intent to support the new idea that secrecy was good for adoptive families and their children, who would be protected “from any possible stain of illegitimacy.”

Contrary to modern arguments, “lifelong privacy rights” of birth parents wasn’t a concern when the records were sealed, Ms. Samuels noted.

By the 1970s, only two states — Alaska and Kansas — allowed adoptees to see their original birth records. The resulting outrage, written in books and articles by distraught adoptees such as Florence Fisher and Betty Jean Lifton, launched the “open records” battles.

To date, four states — Alabama, Oregon, Tennessee, and, as of January, New Hampshire — have joined Alaska and Kansas in allowing adult adoptees access to their original birth certificates upon request.

Another state, Delaware, gives adult adoptees their original birth certificate unless their birth parents file a veto with the state.

In some states, birth parents can file “contact preference” forms for adoptees, which indicate whether the birth parents want to be contacted, either directly or by an intermediary, or do not want contact.

NCFA and its adoption-agency allies say state lawmakers should refrain from opening sealed records.

Eighty percent to 90 percent of all adoptees don’t search for their biological parents, Mr. Allen said. For those seeking information on their biological parents, there are registries for people to file their contact information and confidential intermediaries who will conduct searches on behalf of adoptees or birth parents. It is only a “vocal minority” of people who want “wide open” records, he said.

Mormons, pro-life groups and the American Civil Liberties Union (ACLU) also oppose open records.

Each open-record opponent has its own motivations: The Church of Jesus Christ of Latter-Day Saints believes adopted children are permanently “sealed” to their new families and that old ties are best forgotten. Pro-life groups think that unless a pregnant woman is promised anonymity in adoption, she might choose abortion. The ACLU, which is actively opposing an open-records bill in New Jersey, believes a woman has the right to choose an abortion, parenthood or adoption, including the right to confidentiality.

“It’s strange bedfellows, all right,” Mr. Allen said.

Adoptees and their allies admit that they have suffered many legislative defeats, including failed efforts this year in Rhode Island, Nevada and Texas, as well as Colorado.

But bills remain alive in New York, Massachusetts and New Jersey, and more bills are planned for next year, said Carolyn Hoard, president of the American Adoption Congress.

Also, New Hampshire opened its records in January. “I was ecstatic. It was wonderful what they did,” said open-records adoption activist Pam Hasegawa, who is backing New Jersey’s bill.

The momentum is behind opening the records, said Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute.

Most adoption agencies offer open adoptions, in which birth and adoptive families know each other.

Also, “as people see other states pass [open-record laws] and see that the dire consequences that were predicted aren’t coming true, it provides impetus to keep going,” he said.

The trend in adoption may indeed be toward more openness and state experimentation with “conditional access systems” for birth records, said Susan L. Pollet, executive director of the Women’s Justice Center at Pace Law School in New York and author of a January article on open records in the New York Law Journal.

However, she said, it’s “still too soon” to predict what kind of system will prevail.

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