A rationale for adoptee access to original birth certificates

From the Albany Times-Union

As we celebrate Hawaii's ground-breaking law, we must remember that many states (13 at this point) have passed laws that give some--but not all--adopted people access to their original birth records. These laws are wrong every which way. There should be no restrictions to anyone's access to their birth records or any source that would give individuals the names of their natural biological parents. However, when there is no possibility of complete access--due to a legislator's intransigence on the noxious issue of birth mother vetoes--we have not opposed such legislation. We did, however, oppose the truly awful bill in New York state recently. But just as the military went from President Bill Clinton's tepid "Don't ask, don't tell" policy regarding gays to full acceptance, so will we move to full access for all adoptees to their original birth certificates without exceptions, or those damn birth mother/first mother vetoes.

Below is an excerpt from Hole In My Heart: memoir and report from the fault lines of adoption, published in 2015, about what's wrong with sealed records: 

Daughter and Mother reunion, 1982

Imagine that you are at a family gravesite. A grandmother is being laid to rest alongside her husband, perhaps a sibling or two, and other relatives connected by birth. You are standing there, head bowed, but you can’t squelch the awareness that when you die you do not really belong in this family plot. You should be elsewhere. You have a whole other passel of relatives, but you don’t know who they are, or where they are. You are adopted.

You have no knowledge of who you really are, where you came from and how you got here, you have no family medical history. You don’t look like anyone in this family, and you wonder where you got your flat feet or why your second toe is longer than your big toe, when nobody else in the family has feet like yours.

You are an orphan in the world.

You’ve known since you were five or six that you came from another life, but you understand that you are not supposed to question, or wonder what that life would be like, or even who those people are who gave you life. You have a birth certificate, but the information on it doesn’t tell you who gave birth to you, only who adopted you. The state took away your right to know who you are when your parents adopted you, and sealed your original paperwork forever.

For the vast majority of adopted people in America, this is the way the world works.

SEALED OBCs ARE IDENTITY THEFT
What sealed records do to adopted people is no less than a kind of identity theft, a state-sanctioned robbery. Only a handful of states—and none of the most populous—give an adopted individual the free and clear right to that basic piece of paper. Call them free states. Today there are nine. [1]

Elsewhere adoptees are subject to a crazy-quilt of laws with various caveats that still leave some unable to learn their true place in the world. Those states permit a mother to redact her name on the original birth certificate with a simple request to the state.[2] Consequently the most critical birth data—whom one was born to—is eradicated. There is no appeal, no legal recourse.

Press conference for adoptee rights bill in New York  City, 2014

Lawmakers in those states have insisted on such vetoes because they ostensibly smack of a certain fairness: adopted individuals may have their birth certificates as originally written—except if the mother objects.

There is nothing fair about these vetoes. They give the individual who wishes to remain anonymous the right to deprive another knowledge about one’s being that the rest of us enjoy without asking and have always taken for granted. For those of us who know who we are—who have known since the age of reason—the enormity of this blank wall in the mental makeup of another individual is impossible to fully grasp. You were raised Jewish but maybe you were supposed to be Episcopalian. You were raised in a hot-blooded Italian family but you’re cool and less excitable. You are something else. Your mother is a poet but all you care about is politics.

These vetoes are becoming the path states are mistakenly taking as they move to unseal birth records of the adopted. Reflecting the zeitgeist of an earlier era when an out-of-wedlock birth was the cause of great scandal, these half-way measures today are chauvinistic holdovers of that time. Legislators who enact them insist they are protecting these scandalous women from—whom? Their own children.

Testifying in New York, 2014

But the laws that sealed birth certificates were never designed to give mothers anonymity. The goal was quite the opposite: The laws were written to shield the adoptive family from the natural mother’s interference.[3] It was presumed that she would want to know what happened to her child, and adoptive parents did not want her intruding. Despite how desperate a woman may have been to keep her baby’s birth a secret at the time, today that assumption has been subverted to allow her to hide from that child, and thus prevent his ever knowing his real identity. In effect, the state has set up a system that allows this type of identity theft, issues him fake ID papers, and offers no recourse. These new laws are not fair and equitable. These laws make a mockery of justice for all.

Adopted individuals were never asked if stripping away their identities and histories was their choice, or in their best interests. These infants and children grow up into adults with all the rights and obligations of the rest of us, yet—due to a contract made by others—they are denied basic facts about themselves. Sealed birth records of any kind, with any restrictions that apply to the person whose record it is, codify the same kind of appalling thinking that allowed slavery to flourish in centuries past.

NO CONSTITUTIONAL RIGHT TO ANONYMITY 
Other than slavery, there is no instance in which a contract made among adults over another individual binds him once he becomes an adult. It takes from him full autonomy as a free person; it makes him subject to the whims and preferences of another, and it does so indefinitely and for all time. Anything other than full autonomy—which surely includes the right to know who one was at birth—is wrong morally, wrong legally, wrong anyway it can be interpreted.

Courts in the past have held[4]—and unquestionably courts in the future will find—that the mother has no constitutional right to remain anonymous from her child, and thus the state has no obligation to keep her identity secret from her offspring.

While these veto-burdened laws perpetuate a great injustice, they do this in the name of the very few. In free states where adopted individuals may obtain their original, intact birth certificates, mothers not wishing to be contacted may file such a preference with the state, and this is passed on should their adult children request their original birth certificates.

Jane (in center) on a day of testifying in Olympia, WA, 2013

Few women choose this option. According to statistics compiled by the American Adoption Congress, fewer than 600 women have requested no contact in the six states that have opened their records since 2000, out of nearly 800,000 sealed birth certificates there. That is .0007, or seven-one-hundredths of one percent. In essence, only 1 of out of every1,429 mothers named on sealed birth certificates in those states have requested no contact. In those six states approximately 30,000 people to date have asked for their original birth certificates, and the number continues to grow. How many received a no-contact request is unknown.

Fathers are not normally named on such documents, for most states prohibited that if the mother was a single woman—unless he filed an affidavit attesting to paternity. “Unknown” on a birth certificate does not mean the mother did not know who he was; it only means that the state did not recognize anyone as the father.

Oregon ad signed by 500
firstmothers, including Jane and Lo.

When adopted individuals began contesting sealed records, states and organized groups, such as ALMA, set up mutual-consent registries to match adoptees and natural parents. They are a step in the right direction, but they are largely ineffectual and ignore the basic injustice of sealed records. Most people do not even know such registries exist; dead parents and dead adoptees can’t register; some people do not know where they were born; young mothers who were heavily sedated and living in secrecy may be uncertain of the correct date or specific location; both parties must file with the same registry; some registries have inane restrictions, to wit: New York and California originally required that the adoptive parents sign off on their adult child registering.

SEALED RECORDS CREATE A SUBORDINATE CLASS
Some states allow confidential intermediaries to do a search for the missing parties in one’s life. Who may initiate a search varies from state to state, but typically the name of the person sought may not be revealed without her permission. While either side may refuse, it is only the adopted individual who is seeking his own identity; the mother knows hers.

Neither intermediaries nor registries are a solution to the central issue of the right of the adopted to be able to answer the question: Who am I? Lacking that, the adopted remain a subordinate class of people, denied what the rest of us take for granted. This is social engineering gone awry.

Some may see a mother’s right to anonymity as a twisted extension of her "right to choose." But surely that right ends with her, and does not extend to future generations. Only in a Kafkaesque hell would someone grant anyone the right to erase the past history of another and sentence him to a state of genetic ignorance. Yet that is precisely what sealed records, and those laws that allow a mother’s veto, do.

It is not a hidden mass of natural mothers demanding such a twisted interpretation of fairness when states attempt to correct the wrongs of the past. Instead it is legislators listening to the ghosts of the past. It is adoption agencies and their agents, adoption attorneys—even search companies—who perpetuate the image of the vulnerable, fearful woman at the time of her greatest anguish, and place her in the present now, needing protection from her own flesh and blood. But she is a straw woman created by an industry fearful of change and of being discovered to have been wrong all these years.

The right to know one's heritage should be a given, not something to be asked for as a favor. It should—in a free society, it must—belong to all individuals by the very act of being born.
--from Hole In My Heart: memoir and report from the fault lines of adoption by Lorraine Dusky
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[1] At this writing: Alabama, Alaska, Colorado, Hawaii, Kansas, Maine, New Hampshire, Oregon and Rhode lsland and allow adult adoptees unrestricted access to their original birth certificates; Rhode lsland adoptees must be 25. I call them free states. (Updated from time of publication.)

[2] At this writing: Connecticut, Delaware, Indiana (effective 2018) Illinois, Massachusetts, Missouri, Montana, New Jersey (2017) Ohio (minor restrictions), Oklahoma, Tennessee, Vermont, and Washington and others. will join that list in 2017. While it is not current with recent legislation, most laws are explained at the American Adoption Congress website. See: http://www.americanadoptioncongress.org/state.php

[3] Samuels, Surrender and Subordination: Birth Mothers and Adoption Law Reform, Michigan Journal of Gender and Law, 2013, Vol 20: 1, pp. 32-81.

[4] Samuels, “The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records,” Rutgers Law Review, Winter 2001, Vol. 53:2, pp. 432-434.

SEE ALSO

Hawaii OPENS adoption records!

Yearning 

Who am I? Who are my real parents? Whom do I look like? Most of us take the answers for granted. But a 40-year-old accountant recently was forced to go to court in an attempt to learn such basic information about herself. The New York Times, March 01, 1975 - By Lorraine Dusky 

Relinquish adoption protections March 17, 2014 

Relinquish adoption protections. By Lorraine Dusky, Commentary. ... Lorraine Dusky is the author of "Birthmark," a memoir about relinquishing her daughter, and a founder of the Adoptees Liberty Movement Association. ...

Adoption records should be open

December 22, 2010

Adoption records should be open. I add my voice to those of letter writers Joyce Bahr and Lorraine Dusky. Adoption records need to be opened to both the birth parent and the adult adoptee. Ms. Dusky is correct. ...

Birth certificates at center of bill

May 26, 2011

... If America is the land of the free, people adopted as children must have the same rights as the rest of us, that is, to fully answer the question: Who am I? It's only human to want to know. LORRAINE DUSKY. Sag Harbor. ...

Change law, open adoption records

December 14, 2010

... It is long past the time for this archaic and outdated law to be relegated to the dust bin of bad law. Lorraine Dusky. Sag Harbor. The writer is the author of "Birthmark," a memoir about relinquishing a child (1979). Opinion.

Adoption search yields unexpected connections

February 9, 2011

... Lorraine Dusky, author of the Birth Mother, First Mother Forum and the first woman to write about the pain of surrendering a baby to adoption in the landmark 1979 memoir, "Birthmark," saw my essay in The Advocate and referenced ...