Challenging closed adoption records in the courts

Jane

It's time adoptees come together in a lawsuit to strike down sealed record laws. But before I go into this, some history. Over thirty-five years ago a small group of intrepid New York adoptees filed a legal action action in federal court asking the court to declare laws preventing them from examining their adoption records unconstitutional. They sought not only their original birth certificates,  but also their court records and their files at the agencies which handled their adoptions. They faced a formidable army of lawyers representing powerful interests--the City of New York, the courts, and major adoption agencies. They lost.

From that time on, adoptees have been understandably reluctant to challenge these unjust laws in the courts. Instead, they have taken their
case to unsympathetic legislators, only to be told time and time again that
the name of the woman who gave birth to them was none of their business, that the interest in privacy of unknown and unknowable women outweighed any interest adoptees might have in knowing their origins. These arguments, of course did not originate with legislators, but from those who whispered in their ears while passing on campaign cash--the adoption industry and adoptive parents. Not all adoptive parents, but an overwhelming number of them in the good ole days were against giving "their" children the truth of their origins.

PROTECTING ADOPTIVE PARENTS
The Court opinion in Alma v. Mellon,* viewed from what we know today about adoption seems almost quaint. The laws protected the "interest on the part of the Adopting parents," and the adoptive family "might be adversely affected by the release of information as to the names of the natural parents or the unsealing of the adoption records."

Further, "the confidentiality statutes promote the social policy underlying adoption laws....The major purpose of adoption legislation is to encourage natural parents to use the process when they are unwilling or unable to care for their offspring." In other words, no confidentiality, no adoption. Mothers would just keep their little bastards--or throw them in the trash.

The truth is that mothers in 1979 did not have the power to demand adoptions be closed--or open.
Lorraine, back in 1966, tried to oppose this law at the time she relinquished her child, but was told it was anonymity or nothing. Once mothers went--or were sent by anxious parents--down the adoption road, they had no power over what happened to their child. No one has ever produced any document signed a a mother guaranteeing her anonymity.

To the contrary, some mothers were required to sign papers promising never to search for their child. As a practical matter, consenting to adoption does not guarantee an adoption will take place. It is adoption--not simple consent--which triggers sealing of the records. The whole confidentiality thing is just one a big lie spread by the adoption industry eager to prevent disclosure of information in their files which might prove embarrassing, and to keep its promises to adoptive parents that the child was theirs, all theirs.

ALMA BRINGS THE LAWSUIT
The suit was the brainchild of ALMA's fearless leader, adoptee Florence Fisher, who spent twenty years searching for her natural mother, and the organization financed the case. Adoptees argued that "lack of access to such records causes some of them serious psychological trauma and pain and suffering, may cause...medical problems, may create...a consciousness of danger of unwitting incest, and...a 'crisis' of religious identity." These arguments didn't fly. After all, the Court noted, under New York law, if an adoptee really, really needed his records, a judge could unseal them after notifying his adoptive parents.

This opinion reminds me of other court opinions that end up in the dustbin of history, noted only for their absurdity, such as a 1873 U. S. Supreme Court opinion upholding an Illinois court which refused to grant a woman a license to practice law. The Court reasoned (I'm not sure that "reasoned" is the appropriate word): "the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and women. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."

In 1979, Jimmy Carter was in the White House, marriage between members of the same sex was unthinkable, marijuana was a dangerous drug and its possession warranted years in prison, organic food, climate change, and DNA testing were unheard of. Our number one enemy was the Soviet Union. The home computer was only a glint in Steve Jobs' eye; the MAC would not be introduced for another five years. The Internet was a small system operated by the Department of Defense and beyond the ken or ordinary individuals..

Today, thanks to computers, the Internet, and social media, adoptees and their parents are reunited daily. Domestic voluntary infant adoptions as well as many foster care adoptions are open. In fact openness is the carrot which lures some vulnerable young women to give up their babies. Some first mothers proclaim their first mother status in blogs, in magazine articles, and on prime-time television--as if they had done something to be proud of.

Sixteen states allow adult adoptees access to their original birth certificates although some permit a first mother veto and others restrict access to adoptees born within certain time frames.**  Oregon and Colorado allow adoptees access to their court records. No one has shown that openness has inhibited adoption or increased abortions. There's no reported cases of a mother going off the deep end after her lost child contacted her. Many first mothers strongly support opening records in the hopes that their child can find them.

THE TIME FOR LEGAL ACTION IS NOW 
While advocates for unsealing records should continue to trek to state houses, they should also take

San Francisco Courthouse

definitive legal action to assert their rights as advocates for gay marriage have done. The best people to challenge these archaic laws are adoptees born in California which, like New York, is still locked into mid-20th century thinking. We recommend that adoptees seek only birth certificates and court records, but not adoption agency records, thereby having one less adversary. Strategically California works because it is one of the states which comprise the Ninth Circuit Court of Appeals, the most liberal appellate court in the country. On a personal note, my surrendered daughter Rebecca was born in San Francisco.

There have been attempts to pass legislation in California to open records, the last was in 2009-2010, AB 372.*** The bill had a lot of bureaucratic baggage, related to first-mother vetoes resulting in the bill being sent to the Appropriations Committee with a $16 million price tag. That anticipated cost, in cash-strapped California, killed the bill. Simple bills which allow adult adoptees to access their original birth certificates and court records have no cost to the tax payers since the adoptee pays a small fee for copies of the records.

Although we've heard rumblings, we don't know if open records proponents will try again for a bill in California. With all the confusion and dissension over the last bill, successful legislation doesn't look promising. So how about it California-born adoptees?****  Are you willing to take your fight to the courts?--jane
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*601 F.2d 1225
**Alabama, Alaska, Colorado, Connecticut, Delaware, Illinois, Kansas, Maine, Massachusetts, New Hampshire, New Jersey, Ohio, Oregon, Rhode Island, Tennessee, and Washington
***PACER-Past legislative efforts.
****Some California-born adoptees are Melissa Gilbert, Jonathan Gilbert, Michael Reagan, Christina Crawford, Jean Strauss, Jeanine Baer.

FROM FMF:
Let's put to rest the myth that mothers were promised confidentiality
The promise of 'openness' lures vulnerable mothers-to-be

RECOMMENDED READING 
Birthmark

From the rear cover: "Birthmark explodes the myth of the natural mother who would condemn her child to a lifetime of anonymity to protect her own privacy. It is a courageous statement of a mother who acknowledges that her responsibility to her child begins with birth and does not end with adoption. Lorraine Dusky is a mother who honors her child's right to the truth."--Florence Anna Fisher, president of Adoptees' Liberty Movement Association

Michael Reagan: On the Outside Looking in 
"Caught between two families, the Reagans and Jane Wyman, but feeling that he doesn't belong to either one, Michael Reagan takes the reader through a gut wrenching childhood of presumed privilege which often works against him and which is filled with thoughts of loneliness, unworthiness, and the constant fear of not being wanted; all as seen through the eyes of a child. One can only wonder how many other adopted children have shared these feelings. Then, even when he begins to feel that he might belong and that he is really wanted, he is once again put down. Brought home from boarding school and expecting his own room he is instead made to sleep on the couch so a servant can have a room of her own."--Marvin D. Pipher, a reader at Amazon. 

Growing in the Dark: Adoption Secrecy and Its Consequences by Janine M. Baer
"Growing in the Dark, by virtue of its modest length and accessibility, can be used to educate people both within and outside of the adoption reform movement about the effects of sealed records and the faulty premises used to support them." --Barbara Busharis, American Adoption Congress Decree