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... By any civilized standard.

Laura K is a 48 year old adoptee-adult who, at age 24, was herself the birth mother of a child given up for adoption:

You see, I never saw the child. I never touched the

boy. I was 24 and I told them I wanted to be asleep

for the birthing, and I didn't want to see the

child--didn't want any bonding.

. . . I have enough baggage that I'm carrying

around--emotional baggage of great intensity. I

pray to God that he doesn't come looking for me!

In that same generation are Laura K's opposites: those birth mothers who gave up their children for adoption and would now give a king's ransom--if they had it--to hear that knock on their door. These women were victimized by the attitudes of their generation, which dictated that children born out of wedlock be put up for adoption. A generation later, significantly fewer women feel compelled to choose such an option.

Those adopted children of yesterday are today's adoptee adults, many of whom have begun, for myriad reasons, a search for their biological parents. To aid in this odyssey, many adoptee adults have petitioned the courts for ready, hands on access to birth and adoption records with identifying information.

A consequence of many of these searches is a residual cruelty inflicted upon the Laura Ks. They had not bar gained for promises of confidentiality to be broken or for the rules of the adoption process to be changed within their lifetimes. The pendulum has begun to swing decisively against them as their children, now adults, pursue lobbying efforts to set new standards for the release of birth and adoption records.

To Find Ones Roots

Whether they were adopted in infancy or in early child hood, most adoptees never knew their biological parents or, in muted memory, experience them as vague, unidentifiable figures. There comes that "age," however, when many adoptees' thoughts and energies begin to focus on a search to know about and, in many cases, to meet with their natural parents.

These kinds of missions are undertaken by adults more often today than was the case in past generations. Increased numbers of adoptees in the population and more effective advocacy groups lobbying legislatures for changes in adoption statutes, as well as support and search groups, account for the increase.

There is a psychology upon which these frustrating, often relentless searches are conducted. A psychological portrait of the emotional orientations of many adoptees and their natural parents was drawn by a psychologist who had seen, in a professional relationship, an adoptee appellant who was petitioning a state court of appeals for access to adoption records.

In a general observation for the court, the psychologist asserted:

There is generally a deep seated need on the part

of the adoptees to know their biological origins,

regardless of the quality of family life in their adopted

families. This desire does not necessarily manifest

itself in a wish to form a relationship with their

family of origin but a need to know something of their

biological origins. Conversely, there is often a

parallel desire on the part of the natural parents to

know something of the lives of their biological

children. Preventing this information from being

available, when requested by either party, only encourages

doubt and uncertainty based on the part of the

children and guilt on the part of the natural parents.

Legislatures and courts are increasingly being petitioned to address this emotionally charged issue.

"Open" Versus "Sealed"

The different organizations represented in the adoption net work nationwide are defined by their position on "open" versus "sealed" records when it comes to court proceedings seeking access to original birth and adoption records. For some, "open" means that the adoption and original birth records can be accessed with no legal obstacles; the access can be had simply upon request of the adoptee and other relevant parties to the adoption. Other groups insist that a more limited "openness" is desirable and support limiting information to medical histories and to mutually consenting voluntary registries for identification purposes. And other groups urge maintenance of the status quo in most states, where adoption and original birth records are "sealed" and require court petitions to gain access.

These statutes represent a legislative judgment that con fidentiality promotes the integrity of the adoption process and bears rational relationship to state objectives--namely, a legal acknowledgement and establishment in law that confidentiality performs a vital role in balancing the interests of all parties. The prohibition against seeing the records applies equally to the adoptee, adopting parties, natural parents, and any curious party who seeks to look at the record. These statutory provisions for sealed records is a commendable attempt to consider the interests of all parties in the adoption proceeding. However, weighing and balancing these interests is a very different act to affect with justice for all.

Adoption statutes in many states provide that a judge with jurisdiction has the authority, upon showing of "good cause," to unseal the records. This proviso requires the adoptee to file application with the court for "good cause" as to why these records ought to be opened. Most of the states with statutes sealing records include the "good cause" clause, but it is not a uniform clause in all states' adoption legislation.

Court petitions brought by adoptees are adjudicated on a case by case basis, and the judges, in most of these cases, exercise narrow latitude in interpreting the law when rendering decisions.

Fundamental Rights

Trial court arguments for access to birth records for adoptee petitioners are based most often upon the position that the state statutes sealing original birth and adoption records of the adoptees infringe upon a fundamental right to their own identity and that this infringement, serving no compelling state interest, violates the fundamental right to an identity; that these statutes create a suspect classification, thereby violating the equal protection clause of the U.S. Constitution; that adulthood is of itself "good cause"; and that statutes denying adult adoptees access to this information are unconstitutional.

In cases relying upon these arguments, judges have generally refused to unseal records. But an eloquent advocacy of this position was delivered in the case of Petitioner Appellant v. The People of the State of Illinois, when the petitioner's attorney argued:

The fact that we are dealing here with a fundamental

right is illustrated by the questions we all have

about ourselves. What are the physical characteristics

to which my children may be genetically prone?

What is my ancestral nationality or religious persuasion?

What sufferings and endurances are in my

roots? What achievements or feats can I point to

with ancestral pride? Can anyone seriously deny that

one's identity is an inalienable and fundamental right?

Thus, the right to know one's individually created identity

must be considered a fundamental right. For those

persons that are adopted, how ever, the only way

that this fundamental right can be meaningful is to

include within it one's liberty to know the identity

of his genetic parents. In my opinion, this

inclusion is demanded within the quinessential

meaning of the fundamental right to know one's

individually created identity....

This issue of "fundamental rights" is a powerful and persuasive argument and has become a bulwark position in establishing appeal strategy in many of these cases, despite its lack of success in courts to date.

The U.S. Supreme Court has held that the right of privacy is a fundamental right, while judgments denying access to birth and adoption records affirm that the right to know one's identity, asserted by the adoptees in these cases, is not a "fundamental right" Indeed, one side of the argument asserting that it is not a "fundamental right" is the fact that these cases concern the most intimate areas of personal and marital privacy.

In the opinion of many judges, the statutes denying open access to records are based upon valid rationales, among which are that adoptees often develop countervailing interests in direct conflict with other parties, particularly the biological parents, and that the privacy interests of the biological parents remain, in many cases, very strong. On the issue of privacy rights, the courts must evaluate the needs of the adoptee with those of other parties concerned.

Court verdicts of denial, in most cases, have been based upon the notion that a statutory assurance of confidentiality encourages the surrender of children for adoption and serves to protect the natural parents from public disclosure of a traumatic emotional event and from the possible intrusion into their lives by a child given up years before. It also serves to protect the adoptive parents from interference from the natural parents in raising the child and facilitates the formation of an integrated, autonomous family unit. This latter opinion does not address the fact that, at the time the adoptees petition the court, they, too, are adults.

Concept of Equity

A different perspective offered by some legal scholars suggests that the real rationale for denying petitioners access to their original birth and adoption records in these ex parse cases may not be so much the "privacy" determinant as it is the concept of "equity" This goes back to the fourteenth century and is taken from the British idea that certain things, like the family, should not be tampered with. If they are tampered with--for example, as in adoption--then the concept holds simply that you do not go back and reopen the case, not so much because it would cause hardship to the family but because it would contribute to disruption in the community.

In denying access to original birth and adoption records under the "equity" determinant, the courts are really saying that these decisions are made to promote the tranquility in relationships based upon ancient tradition. The concept of equity regards as done what ought to be done. Historically courts have said that if [chi] gives up a child and [gamma] adopts that child, then the equity concept regards [chi], in a sense, as never having existed.

Lobbying Targets

The frustrations of many adult adoptees, following verdicts of denial when petitioning courts for access to their original birth and adoption records, is so broad and intense that many have turned to organized groups to plead their cases. Many of these organizations and their umbrella groups are lobbying state governments for reform of adoption statutes.

Private reunion registry groups are in business today mainly because of the failure of courts to render decisions providing access to adoption records to those petitioning for access. (This failure, it should be mentioned, is not the consequence of arbitrary rulings so much as it is due to judges who are bound in their decision making by statutes passed by state legislatures.) Many of these groups have petitioned the U.S. Congress for help to ease access to adoption records. In response, and with major bipartisan support, Senator Carl Levin (Democrat--Michigan), an advocate for adoption interests, introduced a bill in the 101st Congress (first session), providing for the establishment of a program that would facilitate, on a voluntary basis, the reunion of natural parents and adopted persons through a centralized computer at the national level. The U.S. Senate passed this bill as the National Voluntary Reunion Registry Act, which authorized the Secretary of Health and Human Services to establish the registry. Unfortunately, the House of Representatives failed to act upon it prior to adjournment.

As Senator Levin defined it for the congressional record, the bill dealt with the needs and emotions of all parties in a careful way and contained specific provisions governing confidentiality and privacy interests. As a safeguard measure, it specifically stated that no match would be made unless both parties voluntarily applied to the national registry to initiate the matching process.

Divergent Positions

An international organization that is a major player in domes tic adoption issues is the American Adoption Congress, which serves as a forum for exchanging ideas with advocacy and support groups calling for "open" records. Kate Burke, former president of the AAC, claims more than 300 domestic affiliates under its umbrella. These groups are actively pursuing legislative change that would mandate "open" records access exclusively for the triad of adoptee, adoptive parents, and natural parents but would deny access to those records by other parties. In effect, AAC's goal is to permit access on demand to directly interested parties, unencumbered by intermediates or mutual consent registries.

Thus, the AAC's current support of a federal voluntary, registry with its mutual-consent provision is a compromise on the way to their goal of completely changing the laws. Furthermore, the AAC holds that the interests of adoptees outweigh and take precedence over the privacy rights of biological parents and that there is an inherent right belonging to adoptees to all information in their records.

Changing adoption laws after the fact to ease access to records, however, may be illegal. William Pierce, president of the National Council on Adoption in Washington, D.C., expressed the opinion that "in those situations of adoption that were done with a clearly implied or sometimes stated contract of confidentiality, it is illegal and unconstitutional for the state to change the rules retroactively. However, if the parties wish to waive their privacy protections, then there ought to be a way for them to do that" That way, Pierce allows, is not in changing adoption statutes to permit "open" records access but by way of state approved mutual consent voluntary registries--in effect, an affirmation to maintain the status quo in most states.

The NCA's position on access to records, as defined by Pierce, is that mutual sharing of nonidentifying medical information should be made available, but that a person's need for information does not overrule another person's right to be able to keep their very private, sensitive sexual history to themselves.

The NCA and the ACC have genuine philosophical differences on the issue of records access. These differences have generated schisms between groups which otherwise are basically united in serving the interests of adoption parties.

Research on child welfare issues, including adoption, is conducted by the Child Welfare League of America, also in Washington, D.C. This organization has been at the forefront of creating adoption and foster care policies and programs for children dating back to the early 1900s. The report from the National Adoption Task Force at the Child Welfare League was the catalyst for revising adoption standards in 1988. Part of these changes addressed openness of records. The taskforce called for an open adoption process and supported the concept that all information, including identifying in formation, may be shared between birth and adoption parties should these parties so desire. The taskforce further advised that this concept of openness, while protecting the rights of individuals involved, should be an integral part of all adoption services.

The taskforce addressed the issue of confidentiality by acknowledging, among its revised standards, that confidentiality cannot be guaranteed in any adoption because laws governing it are changing and may continue to change and that, at the outset, all parties involved should be so informed.

The league's current position supporting a degree of openness in any adoption, within parameters defined by the task force, reverses its long held endorsement of sealed records. It is a major policy change. However, the Child Welfare League does not control adoption policy; its positions are only recommendations to adoption agencies and adoption advocacy groups.

The Future

There are no guilty persons in adoption record cases, no defendants or plaintiffs; there are only petitioners pleading their despair.

How high a premium should the law exact from the innocent to protect from intrusion the sacrosanctity of that altar of privacy rights? Conversely, why must a past mistake, long buried, be compounded by its resurrection years later to satisfy the demands of an unknown or vaguely remembered son or daughter? Can that lady with the blind fold, emblematic of integrity and promise, truly deliver equal justice for all parties in these cases? Each of us will address these questions with our own transcendent biases. But in the absence of federal law on adoption issues, states' laws remain the sole arbiters of these conflicts; state legislatures thus become the last courts of appeal for these adoptees.

News reporting on our time reads, in too many instances, as if we are headed south of the Age of Enlightenment and that our evolution has advanced less than our masquerades suggest. Still, a small step in the affirmation of continued progress toward a more civilized society will ensue when, through informed consciences, state legislators move to draft and approve legislation that will gain for the adult adoptee petitioner access to his or her original birth and adoption records, with no legal obstacles to that access. This change in states' adoption laws would render unto adoptees that which is theirs by any civilized standard, privacy rights and ancient tradition not withstanding.

Ruth B. Ward is a freelance writer living in Maryland.
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Title Annotation:right of adoptees to know true identity
Author:Ward, Ruth B.
Publication:The Humanist
Date:Sep 1, 1995
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