Obergefell was based on two premises, that marriage is a basic right and gays
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| Jane |
IT'S ALWAYS BEEN DONE THIS WAY
Although the fight has been for access to original birth certificates, it would seem that adoptees and those created through "donated" sperm or eggs or both should have access to all information about their origins that is tucked away in files maintained by governments, adoption practitioners, and fertility clinics. We note too that original birth certificates today are more like certificates of title than records of a child's parentage. These documents may contain the names of "intended" or legal parents rather than the actual--genetic--ones. Is it a "birth" certificate or a "adoption" certificate masquerading as a birth certificate?
Now of course, a federal appeals court did not see this back in 1979 when it decided Alma v. Mellon holding that opening records might be the death knell of adoption. That opinion reads much like the dissent in Obergefell, "Sorry, gays but we've always done it this way. Just because attitudes toward gays have changed doesn't mean we have to look at the rights guaranteed in the Constitution differently."
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MAYBE WE NEED ANOTHER TIME UP AT BAT
Obergefell is not the first time SCOTUS considered gay marriage. Forty-three years ago, it refused to hear a case challenging laws prohibiting persons of the same gender to marry. In Baker v. Nelson the wise black-robed nine said such a case was not even worthy of consideration. "It did not present a substantial federal question" in legal parlance. But as the Court noted last week, times have changed--and they have in adoption as well. Most domestic infant adoptions are open to some degree. Some take place on prime time television. Eighteen states allow most adoptees access to their original birth certificates, Oregon allows them access to their court file as well.
As for the little lady cowing in the closet (the stated reason for keeping records closed), courts in Oregon and Tennessee have already held she has no constitutional right to withhold her identity from her child--jane
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Baker v. Nelson, 409 U.S. 810
Alma v. Mellon, 601 F.2d. 1225
FROM FMF:
Challenging closed adoption records in the courts
Is it a 'Birth' Certificate or Certificate of Title?
Unjust Sealed Birth Certificate Laws
As you no doubt know, the danger of an open records constitutional suit going all the way to the US Supreme Court is if the court rules against us, that would strike down all the open records laws in the states that have them. The other side is if we win, it will be like marriage equality, OBC access for all adoptees in the USA. It is a big gamble. But perhaps it is one we can now win.
ReplyDeleteWe need some really sensible legal advice and counsel on how to proceed with this. We cannot afford to do this in a half-assed or hysterical fashion. A lot will depend on who is actually bringing the suit. You may well be right that the time has come to attempt a constitutional case again. It has been many years since the ALMA suit and times have changed. The general public either favors open records for adopted adults or does not care one way or the other, similar to marriage equality today. The courts may well see it as an equality issue now if that focus is kept.
How would we go about crafting such a suit, and where can we find competent and smart legal representation to take it on? Adoptees need to lead this, of course. Those of us supporting adoptee rights need to have the discipline and lack of ego to stay on target with the OBC access as a simple right message, just as the various factions of gay rights were able to focus on the one goal of marriage equality even though of course there were other issues that still must be addressed in other ways.
Jane, how can we do this? Others, especially adoptees, thoughts on this issue?
If the plaintiffs (the people bringing the lawsuit) lost, it would not nullify state laws allowing adoptees to access their OBCs. A loss would simply mean that sealing records is not unconstitutional and it is up to the states whether to keep records sealed.
DeleteThe way these significant cases are brought is that the attorneys for advocacy organizations such as the NAACP, Human rights Campaign, NOW, etc, develop strategy. They find possible plaintiffs and select those who have compelling stories. They decide in which state or states to bring the cases, New York would be out because of the Alma v. Mellon case. California might be good. They find lawyers willing to volunteer their time. They raise money to cover expenses like court reporters, travel, and the like.
Adoptees should form an organization to do this. Maybe Bastard Nation or AAC could take this on. Once they have an organization, they should be able to find some attorneys. There are undoubtedly lawyers who were adopted who would have a personal interest in helping put this together.
Thanks for the explanation, Jane. I was under the impression that if the Supreme Court ruled one way or the other it would be like the abortion ruling, all the state laws forbidding abortion were struck down. I had assumed that went the other way as well and if the Supreme Court ruled that open records was not a constitutional issue that would affect existing state laws. I am relieved to learn that I was wrong about that. That makes it a much less risky thing to try. I hope some adoptee group gets on this.
Deleteit is my understanding that often the Supreme Court will refuse to take a case if they believe the jurisdiction of the states should prevail/ or if they believe the case is not one regarding constitutionality either way.
DeleteThe Supreme Court accepts only about five percent of the cases it is requested to take. The Court considers only cases involving a federal law or a federal constitutional question. A court action regarding the right to the original birth certificate would allege that laws preventing adoptees from obtaining their OBCs violate the US constitution. First the case would be tried in a lower court, then appealed to the next higher court. Eventually, it could go to the US Supreme Court.
DeleteI'll take it one step further and say that there needs to be more than just open records for all adoptees. There also needs to be a way to undo the "contract" that was made on behalf of the adoptee, but without his/her input or consent. In short, we deserve the right to determine whether or not we want to even BE adopted at all. If not, then we must have legal recourse to vacate our adoptions and reclaim our original identities.
ReplyDeleteKaye, sounds like a good idea to me--including those wonderful open adoptions we are hearing about. Let's talk to the kids /parents in 15 years. This is not a problem I will be dealing with.
DeleteKaye, yes, there needs to be more than open records, there are many things in adoption that need changing and reforming. But if we are to get that first step, OBC access for adopted adults, we need to stay on message and concentrate on that one goal, not bring in all the other things we would like to see changed. Again, like marriage equality, not all gays and lesbians want to get married or even see marriage as a good thing, and there are other areas of discrimination against LGBT people that marriage equality does not address. In order to get the recent legal victory, activists for that cause needed to stick to a simple legal right, marriage equality, just as we need to stick to OBC access for adult adoptees as our legal goal. Yes, it is frustrating not to be able to bring in all the other injustices in adoption to both adoptees and mothers, but it muddies the legal waters to try to mix them all together.
DeleteTo your specific need to reclaim your identity, consult a lawyer, but I think you can do a simple legal name change back to your birth name, and some adult adoptees have been "adopted back" by their natural parents, as Jane mentions.
I reclaimed my birth name two years ago. My birth parents are both dead, so even if I WANTED to be re-adopted, it can't happen.
DeleteI'm not suggesting that this is an issue that needs immediate attention -- obviously, open records is the main goal.
But the whole institution of adoption needs to be brought into the 21st century and, as adults, being able to decide FOR OURSELVES if we want to continue being adopted must be part of that change.
Kaye, what you are saying makes complete sense to me.
Deletei don't understand how we adoptees could legally vacate our adoptions and reclaim our identities. For one, as adults, our identities are made in large part due to our past experiences and those cannot simply be vacated or erased. but more importantly, are you suggesting that suddenly we would one again become the legal relation of our biological relatives? that could get quite hairy.
DeleteYes, Kaisa, if your natural parents adopted you, you would become their child and not the child of your current adoptive parents. Of course the act of adoption cannot erase past experiences just as your adoption as an infant could not erase blood ties to your natural parents. Adoption simply changes legal relationships.
DeleteKaye, I don't know you would be able to undo an adoption. You could, however, be adopted by somebody else which would make you their child and terminate the parental relationship with your current adoptive parents. You can be adopted, even as an adult.
ReplyDeleteYes, Jane, I know that.
DeleteBut I'm 58 years old. I've already been adopted twice -- both times it went very badly. Why on earth would I want to be adopted again?
Choices -- BAD choices -- were made for me, without any regard for what *I* wanted. Why should I be forced to remain legally tied to abusers who didn't even like me, much less love me? These are the "parents" listed on my birth certificate, and it INFURIATES me to see those names listed there.
And, no, this isn't just about my OBC. I've known my true identity, and the names of my birth parents, since childhood, and I've already gone to court and reclaimed my birth name.
I'm far from the only person who wants the right to legally void his/her adoption "contract", and I refuse to quit trying to make that happen.
http://adoption-interrupted.blogspot.com/2015/05/cancelling-adoption-contract-update.html
"They find possible plaintiffs and select those who have compelling stories."
ReplyDeleteThat's one of the key priorities. The story has to be about the right to know one's origins and have the real documentation that every other citizen has, not the fakery most adoptees are saddled with. It also has to be simple, like the elevator pitch writers use to pitch their books to agents and publishers. Staying on-message is important in these situations. Aside from the right to one's own birth certificate, adoptees as a group don't necessarily have the same expectations around all the related issues so there's no use going there and it just muddies the waters, Kaye, if you're an adult, why don't you just change your name and call it quits with the APs? That's what most biological children do in adulthood if they can't stand their parents. Sorry, but this is a perfect example of background noise that isn't needed for a constitutional approach. The courts probably wouldn't agree with you anyway. The natural state of childhood is lack of choice.
For the third time (and then I'll bow out) -- I already DID change my name. Two years ago.
ReplyDeleteThe APs are dead (one in 1975, the other in 1998), and I've cut ties with the remainder of my adoptive "family."
That doesn't solve the problem, though, as the abusers are still legally my "parents." When I die, these are the names that will go on my death certificate. They're NOT my parents, and don't deserve to be listed as such.
And, again, I'm not saying that this is an issue that needs to be added to the fight for open records. But it IS a choice that must be available to any adoptee upon the age of majority. It's not unheard-of -- some adoptions have successfully been vacated -- but it's a crapshoot and depends greatly on where you were adopted, and whether or not you're assigned a sympathetic judge.
Kaye, I hadn't seen any of the replies before I posted. They got approved in a wave, All the best in trying to get your adoption vacated as a matter of principle--if this has been done then it can't be impossible. I always thought there was a way for bio-children to divorce family too.
DeleteThe APs names do not have to go on your death certificate. Give instructions to whomever will be handling your final arrangements to put your original parents names on the death certificate. The funeral home typically collects this info when meeting with the the person handling the details and it is a much less formal process than most people realize. They don' t research records, etc in order to collect family info.
DeleteThanks, Maybe, Good information. And by putting your natural parents info on your death certificate, You will help your descendants down the line doing family searches.
DeleteO/T but important.
ReplyDeleteFMF has helped so many of us with our adoption issues, whether we are first parents, adoptees or even adoptive parents. It has given us a place to speak freely, a place to say how we really feel and how adoption has really affected us, and, in doing so, we readers and commenters have been able to stand up against the powerful adoption industry.
So, in honor of FMF and, in particular, in response to the recent publication of Lorraine's new memoir, I have written a blog post about how Lorraine's actions and words have influenced my own life. I hope you will take a moment to learn more about my own feelings about Lorraine and her all-important work. Just click on the link below.
http://allinthefamilyadoption.com/she-changed-my-life/#more-1596
Thanks, Robin, what a fine tribute! Lorraine has indeed been a life saver to many of us.
DeleteYes, a beautiful and illuminating article.
DeleteA timely topic for a blog post, given the recent Supreme Court decision on gay marriage.
ReplyDeleteKaye, I had no idea it can be such a challenge to have an adoption reversed or voided (I just read your blog post that you linked to). My son, an adoptee, is only 7 years old but already has expressed frustration that an important decision about his life was made without consulting him. He badly needed to know when the judge who decreed his adoption would be willing to listen to him. Together, we went over laws that will allow him to make his voice heard in the courts, in a few years, if that is what he wants. He needed assurance that he will get to decide how / with whom he wants to be identified, some day.
In California, it appears his options are to seek emancipation (minimum age 14) or petition to have the adoption reversed or voided (upon reaching the age of majority). I can only hope that if he wants to avail of this, he is not summarily dismissed in the way that you were.
Another topic but an important one: I just heard that a pregnant mom can sign a binding pre-birth surrender in Alabama. Someone I know is trying to help a mother there who signed something early in the pregnancy, changed her mind after giving birth ans signed nothing after the birth, but her child was taken from her! I did not know pre-birth surrenders were legally binding anywhere in the US. Jane, anyone, know anything about this topic? I do not know any other details of this situation nor does the out of state person trying to help.
ReplyDeleteDisgusting. Should be exposed for the pure exploitation and greed it is.
DeleteBelow is the Alabama consent law according the U. S. DHHS publication Child Welfare Information Gateway. I encourage everyone interested in adoption reform to take a look at their state's consent laws. https://www.childwelfare.gov/topics/systemwide/laws-policies/adoption/domestic/.
ReplyDeleteYes, consents can be given pre-birth in some states. The mother has time after after birth to withdraw her consent. In Washington it is only 48 hours. Legislatures have responded to the shrinking availability of adoptable children by tightening the time for mothers to change their minds. This is an issue I'd love CUB or AAC to take up.
When Consent Can Be Executed
Citation: Ala. Code § 26-10A-13
A consent or relinquishment may be taken at any time except, that once signed or confirmed, it may be withdrawn within
5 days after birth or within 5 days after signing of the consent or relinquishment, whichever comes last.
How Consent Must Be Executed
Citation: Ala. Code §§ 26-10A-11; 26-10A-12
A consent or relinquishment shall be in writing, signed by the person consenting or relinquishing, and shall state that the
person executing the document is voluntarily and unequivocally consenting to the adoption of the named child.
A consent of the natural mother taken prior to the birth of a child shall be signed or confirmed before a judge of
probate. At the time of taking the consent, the judge shall explain to the consenting parent the legal effect of signing the
document and the time limits and procedures for withdrawal of the consent and shall provide the parent with a form for
withdrawing the consent in accordance with the requirements of §§ 26-10A-13 and 26-10A-14.
All other prebirth or postbirth consents or relinquishments shall be signed or confirmed before:
• A judge or clerk of any court that has jurisdiction over adoption proceedings, or a public officer appointed by that
judge for the purpose of taking consents
• A person appointed to take consents who is appointed by any agency that is authorized to conduct investigations
or home studies, or, if the consent is taken out of State, by a person appointed to take consents by any agency
that is authorized by that State’s law to conduct investigations and home studies for adoptions
• A notary public
A form for the consent or relinquishment or the withdrawal of the consent or relinquishment is provided in statute.
The form for the consent or relinquishment or the withdrawal of consent or relinquishment for the adoption of an adult
shall be developed by the Administrative Office of Courts.
Revocation of Consent
Citation: Ala. Code §§ 26-10A-9; 26-10A-13; 26-10-14
Implied consent due to abandonment may not be withdrawn by any person.
The consent or relinquishment, once signed or confirmed, may not be withdrawn except:
• If the court finds that the withdrawal is reasonable under the circumstances and consistent with the best
interests of the child within 14 days after the birth of the child or within 14 days after signing of the consent or
relinquishment, whichever comes last
• At any time until the final decree upon a showing that the consent or relinquishment was obtained by fraud,
duress, mistake, or undue influence on the part of a petitioner or his or her agent or the agency to whom or for
whose benefit it was given
»» After 1 year from the date of final decree of adoption is entered, a consent or relinquishment may not be
challenged on any ground except in cases where the child has been kidnapped.
• Upon dismissal of the adoption after a contested hearing as provided in § 26-10A-24
Thanks Jane, that is shocking. I certainly will bring this up with the CUB Board. Other than joining to go to their last conference, I have no position with AAC and don't know the people in charge any more.
ReplyDeleteHere's a comment that was emailed to me. It's being posted with permission of the author.
Delete"I spent a lot of time and effort and money working against CO's 2003 prebirth surrender bill/ law. I represented AAC then, and AAC also took a stand against that bill. Karen Vedder wrote a great letter, representing CUB, against the bill. So did Adam Pertman, representing Evan B Donaldson.
We got support for our side from all over the world...our lawmakers even admitted that they had gotten way more negative feedback than positive. They were surprised by the letters and emails they got from foreign countries...the other BSE countries(UK, Canada, Australia). But they passed it anyway.Our lawmakers said they were "helping women".....
And the wave of shortened timeframes continued. I see it as part of the general trend towards rightwing anti-poor people, force the poor to surrender their kids, etc.etc.
Most people don't want to lose THEIR kids/grandkids/etc but they are not bothered by what happens to "other people's" kids and so they don't care if the unwed mother loses her child. It is only when it happens to them or to someone they love that they become aware and upset about it."
Karen
OT - but really on.
ReplyDeleteA father's struggle to keep his child.
http://www.theatlantic.com/politics/archive/2015/07/paternity-registry/396044/
Thanks for sending the link, Anon. The attorney representing the adoptive parents, Raymond Godwin, is a real sleaze. Thankfully the natural father won!
ReplyDeleteMirah Riben has an excellent two part piece on Huffington Post explaining the awful case of Baby Elliot in Alabama.
ReplyDeletehttp://www.huffingtonpost.com/mirah-riben/wrongful-adoption-return-_b_7739426.html
Kim, the mom, has gotten a lawyer. Please read both parts of Mirah's article, as it shows the cruelty and injustice of what was done. Her nursing baby was removed by police from her home at 3 weeks old! CUB is going to help in any way we can.
"CUB is going to help in any way we can."
DeleteI am so glad to hear that. We need to give Kimberly and baby Elliott all the help we can.
CUB Board voted to put up a separate fundraising site for Kimberly on our webpage, www.cubirthparents.org
ReplyDeleteWatch for it, it will be going up soon in the coming week. Other people and groups are helping Kim as well. This is the most outrageous case we can all agree upon. It really is child stealing.
Good news!
ReplyDelete