Let's put to rest the myth that mothers were promised confidentiality

Prof. Elizabeth Samuels

Legal scholar Elizabeth J. Samuels, who has written about the laws surrounding sealed birth certificates before, has published a new report in the Michigan Journal of Law and Gender that counters the "promised confidentiality" myth. In "Surrender and Subordination: Birth Mothers and Adoption Law Reform,"* she writes that an analysis of 75 surrender documents, dated between 1936 to 1985, from 26 states "definitively supports birth mother advocates' reports that women were neither offered a choice of nor guaranteed lifelong anonymity." And, since all state laws allow records to be unsealed under some circumstances without notice to first mothers, they could not have been intended to protect mothers.

When adult adoptees began agitating for access to their adoption  records, the adoption industry knew it had to put a stop to this--their business had been built on the model of secrecy and anonymity! Adoptees' desire to learn about their pre-adoption selves, and, god forbid, reunite with their first family, undermined the industry's claim that adopted children were as if born to the adoptive family; that all that mattered in their lives began when they were placed in Mom and Dad's arms. Adoptive parents who had been promised total anonymity would rage against this injustice. Worse, others might decide not to adopt or go abroad, losing the domestic industry millions of dollars. Worst of all reunions might expose the lies unscrupulous adoption practitioners told to expectant parents and prospective adoptive parents.

The industry acted quickly. First, it pushed for laws sealing adoption court records and original birth certificates which had previously been available to the adoptive family, as Samuels documented in an earlier article.** Then in a masterful stroke, it vigorously defended these laws, claiming they were for the benefit of--not only only the adoptive parents and the adoptee--but the little lady who made the adoption possible, the first mother. And you know what? This feat of magical reasoning worked. The reigning savant of all things family back in the Fifties and Sixties, Ann Landers, bought it--and so did most of the media. Adoptive parents gave a sigh of relief--if my kid can't know his original family, he won't try, and he'll abide with us.

SUDDENLY 'PROTECTING' FIRST MOTHERS
Legislators who didn't care a whit about vulnerable pregnant women when they passed laws making adoption "easier," that is reducing the time--or eliminating it altogether--for mothers to decide upon adoption, as well as making it virtually impossible to set aside an adoption based on misrepresentations, suddenly jumped up to protect the honor of these poor women. They blocked all attempts to undue the ill-conceived laws sealing original birth certificates. Thus they hoped to prevent the product of the mothers' sins--the child--reinvented as the child of someone else, from ever knowing his first parents.

Legislators and much of the media ignored the voices of first mothers who insisted they had never been promised confidentiality. Sure these brave women testified before legislative committees, joined adoptees in marches, put their names in newspaper ads, but opponents argued: what about those mothers in the closet, fearful of losing everything once their little bastard knocked on the door? Go and lobby legislators in any state with sealed birth certificates and that is what you hear--what about the one woman who will drive her car in the river? What about her? (Both Lorraine and I are in this ad, we are proud to say.)

Jane

Samuels did find that adoption agency staff made "promises" of anonymity and secrecy to first mothers, but these employees could only promise their agency would honor it, not state legislators. Furthermore, given the tenor of the times, it is highly unlikely that without promises of confidentiality, birth mothers would have kept their children. Agency promises may have added some comfort to some women, but certainly their word did not have any real authority. And many women, like Lorraine, surrendered under duress because of the confidentiality clause that was the law. After arguing with her social worker over the course of a couple appointments, Lorraine felt she had no recourse at the time but to submit to the "sealed" part of the arrangement. Instead of a promise, it became a yoke. And certainly many other mothers felt that way.

Samuels points out the obvious--which seems to have escaped many legislators--that consenting to adoption did not guarantee an adoption would take place, and that a new birth certificate would be prepared and the original sealed. The child might have remained in foster care or placed in an institution, and the original birth certificate stood. In fact, some state laws provided that if the agency did not place the child--because the child was somehow defective, for example--the mother would have to take the child back. While surrender documents did not promise mothers confidentiality, 40 percent of those Samuels read actually required mothers to promise that they wouldn't try to contact their child.  This alone indicates that the people who wrote the documents understood the pull of the genetic bond between mother and child. Instead of "protecting" first mothers, they were trying to ensure they would disappear and not interfere in any way with the new family created with her child.

A CRAZY-QUILT OF STATE LAWS 
Of four states--Oregon, Alabama, New Hampshire, and Maine--which allow adoptee access to their original birth certificate, and allow mothers to state a preference for no contact, only 125 mothers have requested no contact while 17,006 adoptees in those states have requested their original birth certificates. Further, based on the experience of Oregon, most "no contact" requests are filed soon after the access law is passed, and the number dramatically goes down in subsequent years. In the first year, Oregon had 79 requests for no contact, but only six more were filed in the next nine years.  

Illinois, Delaware, and most recently Washington, have enacted laws allowing first-mother vetoes for adoptions which occurred within specific time frames. Washington's law, enacted this year, is too recent to be included in Samuels' article. Vetoes in Delawares must be renewed every three years, while vetoes in Illinois and Washington law expire only upon death of the mother. Since 1999, 695 adult adoptees in Delaware accessed their birth certificates while 18 requests were blocked by vetoes. Illinois gives mothers a menu of options from allowing access, to allowing access with some information redacted, to denying access, to denying access and having some information redacted. As of the end of 2012, Illinois issued 8,145 original birth certificates with 47 having some information redacted. Of 620 birth-parent preferences filed, 163 indicated a preference for contact, two wanted no contact, and 455 requested no contact and some information redacted.

While solid legal scholarship and hard facts may not persuade all legislators, perhaps changing mores and technology will do the job. Today most voluntary domestic infant adoptions are open--they even take place on prime-time TV.  "Out of wedlock" births are as common as pigeons in the park. Adoptive parents no longer pretend their children were born to them; same sex couples and those whose children are of a different color proudly show off their children. Due to the Internet and dedicated searchers, adoptees and first parents are reuniting at a record pace. Keeping original birth certificates out of the hands of those whose birth is noted will soon become a relic of the past.

NUMBER OF BIRTH MOTHERS IN THE CLOSET IRRELEVANT 
Yet states continue to pass laws with the frozen ideology of "protecting" those few birth mothers who reject having their names given to their own offspring, and some states are passing laws that still permit the mother to not only ask for no contact, but also to have her name redacted from the original birth certificate. This is a cruel and unnecessary last act of betrayal to any individual. The new frontier is to allow adoptees--and first parents--to access the court records which effected the legal transfer of children from one family to another. Oregon passed just such a law this year with no fan fare.

It is really irrelevant how many mothers request--or demand--no contact. The adoption industry has put proponents on the defensive with the bogus "promise of confidentiality" argument forcing them to disprove it--which ultimately they cannot--since no one has a record of the private conversations between social workers or lawyers and new mothers. I would suggest to proponents of access that they might couple to their refrain of  "I was never promised confidentiality" with "the legislature never promised first mothers confidentiality." 

It matters not to opponents of access if only .000000000001 percent of mothers fear contact; her rights, some legislators claim, must be protected. Of course this conveniently ignores the fact that denying anyone his or her original birth certificate does not guarantee a mother's anonymity since the child may find her anyway. Thousands already have done so. Meanwhile attempts to accommodate mothers in the closet reinforces the concept that they--and all mothers--should continue to be ashamed. Samuels' article provides great ammunition for legislative battles, but ultimately legislative battles are won through political action.--jane
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*Surrender and Subordination: Birth Mothers and Adoption Law Reform, 20 Michigan Journal of Gender and Law 33 (2013)
**The Idea of Adoption: An Inquiry into the History of Adult Adoptees Access to Birth Records, 53 Rutgers Law Review 367 (2001)

FROM FMF:
Oregon to allow first mothers easier access to child's adoption records.
Irrational fears drive adoption laws in Washington State
Oregon man finds first family thanks to new Illinois law
OBC-access bill with 'birth mother' veto may become law

BOOKS
Family Matters: Secrecy and Disclosure in the History of Adoption by E. Wayne Carp
"Do adoptees have the right to the identities of their biological parents? Carp traces the complicated history of adoption and attitudes to it to show how and why attitudes changed. Adoption of children not related by blood was not common in this country until the 20th century. And while adoption proceedings were usually conducted with "discretion," they were not legally confidential. It wasn't until the Progressive Era that reformers, hoping to remove the social and (thanks to eugenicists) biological stigma of illegitimacy, successfully pressed for legal secrecy. After WWII, confidentiality gave way to obsessive secrecy as adoption officials feared biological parents might interfere with the new adoptive family and adoptive parents feared the insecurity and stigma of telling an adopted child the truth. But in the 1960s and '70s, changing sexual mores diminished the shame of illegitimacy and the adoption rights movement (ARM) rebelled against decades of sealed records, demanding instead openness and disclosure in adoption. Through the 1980s and '90s, the traditional secretive adoption became increasingly vilified, with wrongful adoption lawsuits and the "Baby M" custody case. But, as Carp notes, ARM's desire for complete openness in adoption records has come against "an insuperable obstacle" a birth mothers' right to privacy. The most fascinating aspect of this very accessible study is the ups and downs of the often questionable belief in the primacy of blood ties. Bringing clarity, historical perspective and objectivity, historian Carp offers a book that deserves the attention of anyone with an interest in adoption."--Publisher's Weekly 

--While some criticize Carp for dismissing the primal pull of blood ties, this is a complete history of adoption and the reform movement as exists today--FMF 

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