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Thursday, April 4, 2013

ACLU Continues to Ignore the Facts and Discriminate Against Adult Adoptees

Just when I thought we might be making a bit of progress in lobbying for adoptee rights in New Jersey, I received an infuriating letter from ACLU-NJ "Intake Manager" A. Herrarte.  Mr. or Ms. Herrarte was responding to a letter I had sent newly-appointed ACLU-NJ Executive Director Udi Ofer, along with a well-researched article that deconstructs the ACLU's misguided stance on adoptee rights.  

I have to wonder as I read the response whether Herrarte or Mr. Ofer even read the article, as Herrarte's letter contains the same canned statements ACLU-NJ has been spouting for years.  What is truly infuriating is that the ACLU position is predicated on a downright lie -- that birth parents had "a legal right to confidentiality when they placed their children for adoption."  Does the ACLU not acknowledge court precedents?  Apparently not.  Both the Oregon State Court of Appeals in 1999, and the U.S. Court of Appeals (6th Circuit) in 1997 have ruled that no such legal right exists.  Since the birth parent privacy argument has been refuted legally, there have been no court challenges to any original birth certificate access law.

It is one thing when an entity like the ACLU misinterprets the facts; it is another when it willfully ignores the facts.  Whatever the ACLU agenda is on this issue -- adoption reform groups in Washington State have encountered the same frustration from its ACLU chapter -- it does not include a desire to understand or even acknowledge the facts.  How sad for a group that insists its mission is to value the liberty of every individual.

I'll share here Herrarte's letter, then respond with a few thoughts of my own:

Dear Ms. Perry:

Thank you for contacting the American Civil Liberties Union of New Jersey regarding adoption records.

We sympathize with those who seek access to adoption records and recognize that the dilemma involves competing rights.

For this reason, the ACLU-NJ supports systems that reunite people separated through adoption who mutually consent to contact such as "search and consent" services that provide an intermediary to locate and contact birth parents in a confidential manner and request the release of their names.

The ACLU-NJ opposes legislation that provides for the release of the names or contact information of birth parents without their consent.

Our position is based on privacy and due process concerns relating to the release of the names of birth parents who had a legal right to confidentiality when they placed their children for adoption.  We oppose revoking this right after the fact, particularly considering that some women hinged their decisions to place a child for adoption on the fact that it would remain private.

Thank you again for contacting us.


A. Herrarte
Intake Manager

Upon reading this letter, I have to ask, "Where in the world is ACLU-NJ getting its information on this issue?"  Adoptee rights bills are not about reunion; they are about equal rights.  Some adoptees search, some don't, but every adopted adult should be able to secure the document that records his or her own birth, just like any other American citizen.  It is unjust to treat an entire class of people differently than we treat everyone else.

The ACLU also continues to insist that "the dilemma involves competing rights."  As adoptee Julie Kelly explains, "It's not about competing rights.  It's our rights vs. someone else's possible preference.  Rights triumph over preferences.  The overwhelming majority of mothers (and the rest of our families) are on our side.  They are not in competition with us.

Adoptees are not seeking anything extra that everyone else does not already have for themselves.  To make everyone equal, we are demanding restored access to our OBC's -- the same right our mothers have.  The same right that all non-adopted citizens have.  This is what will make us equal to everyone else.  Making separate laws for us makes us different, unequal, and inferior.  ACLU of all organizations should understand that."

The ACLU also conveniently ignores the history and intent of sealed records.  Elizabeth Samuels, a law professor at the University of Baltimore School of Law, has been researching adoption law since the 1990s, and has written extensively about the issue.  In testimony before the Ohio Legislature last month, she explained that records were closed gradually throughout the mid-twentieth century "to protect adoptive families from possible interference or harassment by birth parents, not to protect birth parents' privacy."

In many adoptions, Samuels said, the adoptive parents received copies of documents with identifying information about the birth mother.  Every state always had a legal mechanism by which records could be opened "for good cause," she said, and "the laws sealing court and birth records have never guaranteed lifelong anonymity for birth parents."

Samuels has analyzed 77 surrrender documents signed by original mothers from the late 1930s through 1990, and concludes that none of the mothers were promised either confidentiality or lifelong anonymity.  Many, however, did have to promise that they would not seek information about the child or interfere with the adoptive family.

When an original mother surrendered her child, said Samuels, she was surrendering all of her parental rights and was relieved of her parental obligations.  She did "not retain or acquire any rights."  In short, secrecy was not offered to the relinquishing mother -- it was required as a condition of the adoption.  And as we now know from open access states, overwhelmingly large majorites of relinquishing mothers -- "up to 95 percent," according to Samuels -- are open to contact.

Yet in the face of all those facts, the ACLU continues to insist that this issue is all about "competing interests" and "the right to privacy under the US and NJ constitutions."  "I would challenge the ACLU to provide legal evidence of this right to privacy," says adoptee Julie Gretchen Martel.  "Obviously, such evidence does not exist."

"I am really sick of being told that my birth parents had/have a legal right to privacy," says Martel.  "In Connecticut, OBCs were sealed in 1974, three years after I was born and adopted.  At the time of my adoption, my birth parents had no expectation of their identities being kept from me.  So please stop telling me otherwise."

For more facts that refute the ACLU position, we can look to the 1999 decision by the Oregon State Court of Appeals.  The state may release original birth certificates to adoptees, it concluded, "without infringing on any fundamental right to privacy of the birthmother who does not desire contact with the child."

"Although adoption is an option that generally is available to women faced with the dilemma of an unwanted pregnancy," the court concluded, "it is not a fundamental right.  Because a birth mother has no fundamental right to have her child adopted, she also can have no correlative fundamental right to have her child adopted under circumstances that guarantee that her identity will not be revealed to the child."

If that decision isn't clear enough, the U.S. Court of Appeals (6th Circuit) said this in 1997, when a group petitioned the courts in Tennessee to overturn the law that would grant some adult adoptees access to their 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 clearly, according to court precedents, there is no constitutional right to privacy for original parents, yet ACLU-NJ continues to insist that there is.  The ACLU's opposition to adult adoptee access is also difficult to understand in light of ACLU national's views on the management of government data.

In its Policy #272 on Government Data Collection, Storage and Dissemination, ACLU states that "personal information should not be collected from individuals without their informed consent."  What adopted individual has ever given her permission to have her true and legitimate birth certificate amended by the state and then sealed for all time?

Later, the ACLU policy paper reads:  "The ability of an individual to exercise control over the collection, maintenance, and use by the government of his or her sensitive personal information is central to personal integrity and human dignity."

A final example demonstrating the inconsistencies in ACLU's position towards adoptee rights can be found in this ACLU statement:  "All persons should have equal rights of access to information maintained by public agencies.  The identity or status of the party requesting disclosure should not affect the decisions as to what information is actually disclosed."

Given the facts, it is simply impossible to understand the logic of ACLU-NJ's position.  After reading Herrarte's letter, adoptee Gaye Tannenbaum had other thoughtful questions to ask:

"How does the ACLU propose to deal with the many situations where one or both parents have already passed away?  They can't give their 'consent.'  Is the adoptee forever barred from knowing his or her name?"

"The ACLU frames the issue as one of 'reproductive choice.'  Would they support making 'open' adoption enforceable in New Jersey?  Would they go to bat for the many women who were promised an 'open' adoption that was subsequently and unilaterally closed?  Why are the records sealed in an 'open' adoption?"

"Since the classic definition of 'right to privacy' is the right to be free from government interference, doesn't a 'search and consent' program violate that right by allowing a state functionary to track down and make contact with a party who was 'promised' privacy?"

"Does the ACLU have a problem with adoptees conducting a search on their own -- including the use of DNA testing, social media, genealogy sites, and other public information?"

Like Samuel's testimomy, the court decisions, and the ACLU's own policy about data storage and access, Tannenbaum's questions reveal the absurdity of the ACLU-NJ stance.  Perhaps they haven't heard yet that both Ohio Right to Life and NARAL Pro-Choice Ohio recently testified in favor of an adoptee rights bill in their state.

Stephanie Krider of Ohio Right to Life testified before Ohio's House Judiciary Committee:  "It is our belief that supporting (this bill) ... would not be a disservice to birth mothers who have placed their child for adoption.  Legal guarantees could never have been made to these mothers to ensure their children would never have access to their original birth certificate."

Jamie Miracle of NARAL Pro-Choice Ohio similarly testified in favor of the bill:  While allowing adoptees to access "important family medical information," she explained, the bill also works to protect the privacy of birth parents by allowing them to express their preference for or against being contacted by the adult adoptee.

"This system will, in fact, better protect the privacy of birth parents by creating a system where they can express their preferences for being contacted, which currently does not exist."

If both an anti-abortion and a pro-choice group can come together to support an adoptee rights bill in Ohio, how can ACLU-NJ continue to insist that relinquishing mothers have a non-existent legal right to privacy as part of their reproductive decision-making?  If you are as confused by their thought process as I am, please register your displeasure by contacting them at Post Office Box 32159, Newark, NJ 07102; 973-642-2084;  The new executive director is Udi Ofer, but don't be surprised if your response comes from "Intake Manager" A. Herrarte.

You might also like:

An Open Letter to Executive Director Udi Ofer at ACLU-NJ

ACLU-NJ Misses the Mark on Adoption

Why do State Bar Associations Oppose Adoptee Rights?

Adoptee Rights and a Woman's Reproductive Choices



  1. You asked them to look at the issue with fresh eyes (specifically tne new Executive Director's) and the response was the same old responses.

    You refuted Mr Herrarte's points well, IMO.

    As we can tell by so many other civil rights movements, those blocking progress will prove to be on the wrong side eventually, especially with persistent effort to shine light and open things up.

    1. Thanks for your comment, Lori. I look forward to ordering and reading your book, especially the chapter on how we can best mobilize today's adoptive parents to support adult adoptee rights.

  2. Since there was NO law in any state since 1936 that stated that all placing mothers HAVE a right to birth mother privacy, it is time to get attorney's to talk with the ACLU and all other organizations to end this charade once and for all.

    1. I agree with you. The question, though, is what group of attorneys do we get to talk with the ACLU and other obstructionist lobbies? The NJ Bar Association opposes adult adoptee access bills along with ACLU-NJ, and it uses the same faulty reasoning.

    2. Well, there has to be some way to go over their heads. Do you think there is at least one attorney in NJ who would agree with us? You know more about this than I do Susan and I guess I don't understand fully what it means when the NJ Bar Assoc. is against us, and what we could do. The problem is also stupid Christie and all his blather about his adopted sister. You know, just damn all these idiots, sorry but I am so frustrated so that is what they get!

    3. I am incredibly frustrated with the political process as well -- I am beginning to think that we will get justice only when the courts weigh in on this, and I'm not confident that even they will get it right. We have a wonderful attorney who speaks for us as part of NJCARE, but so far, it hasn't been enough to counteract the influence of lobbies like Right to Life, the Bar Association, ACLU, and National Council for Adoption. Unfortunately, ours is an issue that can easily be misunderstood and distorted -- when it comes to facts, the obstructionists don't have a leg to stand on. That is why the whole situation is so infuriating. We need more of us to speak out -- any ideas about how we can get more people involved?

    4. Well actually yes, but I don't know if people will like them or not. It is going to take some leg work and just getting down to the nitty gritty. I think many of us need to start making pamphlets and handing them out-at grocery stores as people are walking in. These pamphlets would explain our dilemma and would ask people to please call their Rep or Governor. I know one of the problems with this are any AP's or social workers we we might hand one to, but oh well, lol. We need to really have monthly protests in as many states as we can, not just once a year or once in a while. If adoptees and first mothers do this in their state we can at lease make more noise, and I know a of of people are working hard, but we are just not loud enough I don't think. I'll try to come up with more ideas-I read your blog a lot because I like it and I like you so maybe something better will come to me later and I will let you know. I just can't believe sometimes the high mountain they have made us (adoptees) climb. What a nightmare huh?

    5. I was thinking to, what if many of us wrote letters to Michele Obama. First mothers and adoptees. I wonder if The First Lady would help us. She is a Mom. The President is involved in many things and adoption I guess is not high on the agenda so, maybe Mrs. Obama would take an interest? We could talk about how the passed clean bill in Maine has never caused any problems and that there are no hysterical birthmothers marching all over the place screaming about their privacy, along with Aussie's wonderful prime minister who just apologized to firstmothers and adoptees and there has been no problem there either. Nor has there ever been in Kansas or Alabama where records were never closed. Good idea? Bad? Anybody wonder if Ann Rivers is really a birthmother? I wish I could make her take a lie detector test!

  3. Doesn't the Florida ACLU support open records? I wonder why there is a difference and what information they are basing their position on.

    1. Hi Robin,
      I'm not sure whether the Florida ACLU today supports adult adoptee access or not. Back in 1987, the Southwest Florida Chapter Board of the ACLU wrote this policy statement and asked that the Florida and National ACLU adopt it:

      "Numerous states have laws or procedures which impede the ability of adopted adults, their birthparents and other relatives to ascertain each others' identities. The ACLU believes that as long as state and/or local governments choose to maintain birth records, such records must be maintained and accessible without discrimination by virtue of adopted or non-adopted status."

      Obviously, this is not the stance of ACLU National today, and in the states of Washington and New Jersey, the ACLU chapters are obstructionists, even though their positions are ignorant and contrary to court precedent.

  4. The ACLU talks up a storm but have they ever been able to show this "right to legal confidentiality" of which they speak? If such a thing existed, where was the enforcement of this right in instances such forcing our President to make public his own birth certificate....did this document not have the names of parents on it? Is there a magical invisible document assuring such legal right in surrender documents? Let's see the template.

    No, the ACLU are a bunch of aging, entitled, potential adopters and are trying to keep the odds slanted in their favor.

  5. "Because a birth mother has no fundamental right to have her child adopted, she also can have no correlative fundamental right to have her child adopted under circumstances that guarantee that her identity will not be revealed to the child."

    This makes perfect sense and I never knew the judges stated this in the Oregon opinion. So you can surrender your child, but there is no guarantee an adoption will actually take place. So all these decades, it has been presumed that birth mothers had a legal right that never actually existed. NO RIGHT TO ADOPTION; THEREFORE, NO RIGHT TO PRVACY! EUREKA. It's a simple concept!

    Maybe the ACLU needs a dumping on of letters like yours until they get it through their shriveled little heads that they are believing a myth. Georgia Tann would be proud as well as the evil little man who decided to implement closed records when he also decided it was a great idea to send kids across the country on the orphan trains.

    Found this at Wikipedia: The origin of the move toward secrecy began with Charles Loring Brace who introduced it to prevent children from the Orphan Trains from returning to or being reclaimed by their parents (nothing whatsoever to do with birth parent privacy--it was a cruel way to keep the indentured servants with their forever families.)

    I hope and pray that this Ohio bill passes and the experts involved can influence the misinformed powers that be in NJ.

  6. Funny how the ACLU thinks teenage daughters should have the right to an abortion without consulting a parent but an adult adoptee has to get permission from a parent, that did not raise them, just to see their own birth certificate.

  7. Can we all scream together? This is so outrageous that it is hard to be calm about this anymore. This gives first mothers and fathers power they never had before.

    And Robin is right, as far as I know the Florida ACLU has been in support of adult access to OBCs. What we need is to have someone knock some sense into the national head of the ACLU. That they support birth-mother/birth-father privacy is absurd and wrong. Would they also support privacy of birth fathers in paternity suits? That makes as much sense as their position on this.

    No matter how much secrecy was involved at the time of my daughter's birth, I never wanted to be anonymous from her. But I had no choice in the matter, the state decreed the silence, and this tyranny lives on. All we can do it keep raising our voices in protest and find someone who will mount a class-action suit.

  8. @ Peter Franklin, what a great comment. Thank you.


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