Overcoming the myths that thwart adoptee rights bills

All of us involved in the adoptee rights movement have heard comments like these:

"Why do you believe adoptees should have all the rights in the world and birth parents should not? You go on and on about how adoptees have had this traumatic experience because they were adopted, and I don't want to discount that pain for I'm sure it is real for some; however, I find it disgusting that you conveniently forget how traumatic giving up a child can be for a birth parent, and if a birth parent does not want to ever be found by their biological child, they should have that right."

To combat such attitudes, we share facts like the following:  Original parents have never had the legal right to anonymity from their own offspring.  Every state has some mechanism by which adoptee birth records can be opened by court order, and two states never sealed birth certificates from the adopted person at all.  Also, research conducted by law professor Elizabeth Samuels shows that birth records were not sealed to protect the anonymity of original parents, but to protect the adopted child from the "shame of illegitimacy" and the adoptive family from "unwarranted intrusion."

Many, many adoptees find their original families without their original birth certificates, because many have some identifying information on their adoption decrees.  Estimates indicate that some 40 percent of adoption documents contain some identifying data; both my brother and I, for example, always had our original names. This fact alone should support Samuel's conclusion that records were not sealed for the purpose of protecting birth parent anonymity.

The viewpoint that allowing adults to secure their own original birth certificates will endanger the well-being of birth parents assumes that there are hordes of original parents out there in the world who wish to remain in hiding.  The data from states and countries that have restored original birth certificate access to adult adoptees, however, shows that a tiny minority of original parents -- one to four percent -- express a preference for no contact. 

Some of the most ardent supporters for adult adoptee rights, in fact, are original mothers, who tell us they did not choose anonymity -- rather, it was forced upon them by the adoption system.  Carlynne Hershberger, both an adopted person and a mother who years ago relinquished her child to adoption, explains her viewpoint this way:

"As an adoptee AND a mother of adoption loss I have to say that the rights of the adoptee to know their origins trumps anyone else's right to keep secrets. When I was being manipulated out of my daughter I was not promised secrecy or anonymity. I was TOLD to keep secrets and TOLD not to look for her because it could cause her harm. What mother wants to cause harm to her child? Once we are all adults, we all have the right to choose who to have a relationship with. The government, adoption agencies, brokers etc... have no business being involved in whether or not two adults speak to each other or meet."

The adoption system has done a great disservice by pitting original mothers against adopted people, as if the two parties must have some kind of adversarial relationship, and as if the original birth were so shameful, it must never be spoken of or referred to again.  If the original parents placed us out of love, as so many of us were told, why would they wish to never hear from us again?

Julie J explains the view of many adopted people like this:  "Adoptees do not discount the pain of their mothers. This is not a pain that adoptees created nor chose for anyone. They are both victims of a larger societal system. Mothers & their children are largely on the same side, they are not adversaries as others with ulterior motives try to paint them. Let the mothers speak for themselves instead of having AP's or adoption industry reps speak for them. Listen to the mothers. They are not the ones speaking out against adoptee rights. Reunion often brings about a level of healing that is very healthy for all involved, mothers included."

It is, in fact, very difficult to get original mothers to speak out for the sealed record system, even through other parties.  For example, in its efforts to thwart adoptee rights bills, the New Jersey State Bar Association (NJSBA) has repeatedly asked for birth mothers desiring secrecy to allow their attorneys to testify on their behalf.   A letter sent out by the NJSBA on January 5, 2007, literally begs for original mother input.  It reads:

"Dear Family Law Section Member:

We are once again, requesting that anyone who has a client who is a birth mother, who would be willing to let you testify on their behalf in opposition to S-1087 (an adoptee rights bill), please contact ...

So far, only one person has come forward willing to have their attorney testify on their behalf.  This legislation has already passed in the Senate and is poised for Assembly vote in the near future.  We desperately need others."

You can see why adoptee rights supporters become so cynical, when facts like these are ignored year after year.  The evidence is clear:  No legal document has ever been produced indicating that original parents were promised anonymity, and most original parents, in fact, are open to contact from their surrendered offspring.

Even legal decisions from the higher courts have supported the rights of the adult adoptee to access her own birth records.   Here's what the Oregon State Court of Appeals decided in 1999, after a small group petitioned the courts to overturn the law that would grant adult adoptees equal access:  The state may release original birth certificates to adoptees "without infringing on any fundamental right to privacy of the birthmother who does not desire contact with the child."

If that decision isn't clear enough, the U.S. Court of Appeals (6th Circuit) said this in 1997, after another group petitioned the courts in Tennessee to overturn the law that would grant some adult adoptees access to their own birth certificates:  ..."If there is a federal constitutional right of familial privacy, it does not extend as far as the plaintiffs would like."  The Sixth Circuit Court further explains:  "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."

So according to several court decisions, there is no constitutional right to privacy for original parents.  At this point, opponents to adoptee rights might concede:  All right, there is no legal right to privacy, and most original parents are open to contact.  But what about that one to four percent who want to remain undetected?

I would reply that a human being has a right to know his or her own origin, and that it is unjust and discriminatory to treat an entire class of people -- adopted adults -- differently by law than we treat everyone else.   Who does the birth certificate belong to, really, other than the adopted person herself?

Adoptee rights bills usually allow the original parents to express their preferences for direct contact, contact through an intermediary, or no contact.  This is an option that original parents don't have today, and reunions are taking place all the time.  Fair adoptee rights bills, like those enacted in Oregon, Alabama, Maine, New Hampshire and Rhode Island, enable the adopted adult to secure her original birth certificate and become aware of any preferences the original parents might have.

Adoptees don't have a right to a relationship with original parents, but they do have a right to information because their birth history is actually part of them.  Adoptee Julie J explains the concept this way:

"While there is a right to choose not to have a relationship with anyone else, there is not a right to remain anonymous to the son/daughter a woman chose to bring into the world. That is called a preference, and very few mothers have that preference. Preferences cannot trump basic rights. Once born, he/she is a full-fledged citizen with all the rights that everyone else who is already here has. Knowledge of family & relationships with family are 2 different things. Relationships always require the consent of both parties. Knowledge of who you are & where you come from is a human right that everyone deserves. It does not require the permission of anyone else. That being said, the overwhelming majority of mothers do support these ideas and are overjoyed to be reconnected with their lost sons/daughters."

The key point here is, "Knowledge of family and relationships with family are two different things.  Relationships always require the consent of both parties."  I often wonder what opponents to adoptee rights think the adopted person is going to do if the original mother says she does not wish to have contact going forward.  Like all human beings, we do not wish to go where we are not wanted.  When, we wonder, will full-grown adults -- original mothers and adopted people -- be left alone to work out their very personal issues on their own?

Many people do not realize that adoptees once enjoyed full access to their original birth certificates.  Records were sealed to adoptees only in the mid-twentieth century as part of the shame-based "Baby Scoop" era, and often in response to the desires of adoptive parents.

As Julie J explains, "Adoptees are not asking for any rights that everyone else does not already have. Our mothers already have access to their own accurate record of birth. Our AP's already have access to their own accurate records of birth. We once did. We only want that restored. Doing so does not take away anyone else's rights to theirs; it makes adoptees equal to the non-adopted."

Equal rights for adult adoptees.  It shouldn't be the novel and controversial subject it is in legislative circles.  And it wouldn't be, if only facts, rather than myths and emotion, would inform the debate.


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Why do State Bar Associations Oppose Adoptee Rights?

ACLU-NJ Misses the Mark on Adoption

Sealed Records are Wrong. Period

Sealed Records -- A Secret the Industry Would Like to Keep