Open Records

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open records

Refers to a variety of confidential and sealed adoption information that has been made available to a member of the adoption triad, usually the adopted adult or adoptive parents. Such records can include an original unamended birth certificate, court records, adoption agency case records and other confidential information, including professional working notes or files, that were "sealed" or closed subsequent to an adoptive placement. A new birth certificate is issued after finalization with the adoptive parents listed as the parents.

It's important to note that there is considerable confusion in the minds of open records advocates and some adopted adults about the difference between obtaining identifying information, which enables a triad member to seek out another triad member, and a court request to provide confidential sealed records.

Access to the original court records is a vastly different process from opening sealed vital statistics records. Many searchers who have located a triad member never sought or needed the court's permission to open sealed records in order to locate a birthparent or adopted adult.

The original birth certificate and adoption records are not available or accessible to anyone in most states, including the adopted person, adoptive parents or birthparents, without a court order or special action. Only four states as of this writing offer open inspection of original birth records: Alaska, Hawaii, Kansas, and Tennessee. Oregon has an open records law, which was passed in 1998. The law was challenged and was upheld in 1999 by the Oregon Court of appeals. As of this writing in 2000, the law is being appealed by a group of birthmothers to the Oregon Supreme Court and thus the open record law cannot go into effect until the legal appeal is heard. (Alabama rescinded its open records statute in 1990 and became a "search and consent" state, and Hawaii passed an open records law in 1990.) Oregon and Tennessee laws have charged but, as of this writing, are not being implemented, pending resolution of court challenges. These three states will provide an original birth certificate on demand to adult adopted persons but in Tennessee, a "contact veto" is part of the legislation. (In no state may the birthparent obtain sealed records without a special court order.)

Some states require an agency to do a "search and consent" procedure whereby the agency contacts the birthparent or adopted adult and determines if that person is willing to have his or her identity revealed. (Critics of this approach call it "search and confront" and point out several weaknesses in the way it is usually carried out, especially when there are insufficient funds or trained sensitive staff to provide postadoption services.)

If she (or he) is willing to share identifying data, then it is provided. If the individual sought is unwilling to provide identifying data, he or she might be willing to update medical information to alleviate any fears or concerns the adopted adult may have. Yet search and consent laws do not satisfy proponents of open records because the control is in the hands of the agency doing the search and confidentiality will supposedly be maintained if the sought person requests it. In some cases the "found" person said she did not want her identity revealed but it was revealed anyway.

Sixteen states have passed laws on searching for a birthparent to seek consent for a meeting: Alabama, Colorado, Connecticut, Delaware, Georgia, Kentucky, Maryland, Minnesota, Missouri, Montana, Nebraska, North Dakota, Oregon, Pennsylvania, Tennessee and Wisconsin. The birthparent is contacted to determine if she or he is willing to have identifying information provided to the adopted adult.

Mutual Consent Registries

The most popular approach to the search issue has been the establishment of MUTUAL CONSENT REGISTRIES. Twenty-one states as of this writing have formed mutual consent registries, which match information on adopted persons with birthparent information. In most states, when both the birthparent and the adopted adult register, identifying information is then shared with each.

States with registries include Arkansas, California, Florida, Idaho, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michigan, Nevada, New Hampshire, New York, Ohio, South Carolina, South Dakota, Texas, Utah, Vermont and West Virginia.

For more than two decades, Sen. Carl Levin (D-Mich.) has been seeking to enact some form of federally operated national adoption registry to facilitate matches. (Several national registries, most notably the INTERNATIONAL SOUNDEX REUNION REGISTRY [ISRR] already exist without the support of tax funds.) Many people move at least several times during an 18- to 21-year span, and thus a birthparent or the adoptive parents may no longer reside in the state where the child was adopted.

Concerns about Sen. Levin's bill range from whether and how confidentiality would be sufficiently preserved and whether a federal registry would merely duplicate the efforts of existing state or voluntary national registries. A comprehensive discussion of concerns related to Senator Levin's bill appeared in the October-November 1998 issue of National Adoption Reports published by the NATIONAL COUNCIL OF ADOPTION.

Most open record advocates are dissatisfied with mutual consent registries because they think they do not go far enough and they are too difficult to use to make matches because of restrictions. In addition, a few state registries, for example, in New York, require the permission of the adoptive parents, the adopted person and both birthparents. It is less likely that so many people will register, some critics observe. The registry contained in the UNIFORM ADOPTION ACT would remedy these problems.

Some states have taken the path of moving away from a mutual consent registry to providing information to the adopted adult unless there is a nonconsent document by the birthparent on file. If a birthparent has not filed such an affidavit, it is presumed that he or she is willing to have confidential information released.

Minnesota took such an approach for adoptions arranged after August?1, 1982. Nebraska changed its adoption laws in 1988 to require that an original birth certificate be provided to an adopted adult unless a nonconsent document was on file. The obvious problem is that birthparents may be unaware of these legal changes because they have relocated or have not read about changes even when they continue to reside in the state.

In ALMA Society v. Mellon, 601 F2d. 1225, cert. den. 444 U.S. 995, (1979), adopted adults sued for identifying information, stating they were being unfairly denied information and treated as a special class when it did not serve the state's interests or the adopted person's interests. The Court found that the New York laws did not "unconstitutionally infringe upon or arbitrarily remove appellants' rights of identity, privacy, or personhood."

In a state court case, a physician's estate was successfully sued by a birthmother for revealing identifying data that enabled an adopted woman to seek out her birthmother. In the Oregon case of Humphers v. First Interstate Bank in 1985, the court ruled the physician had breached his professional responsibility to maintain confidentiality. Other similar lawsuits have been filed, some succeeding others not.

Arguments in Favor of Open Records

Many and probably most adoption search groups, composed primarily of adopted adults and birthparents who have searched or are engaged in searching, are proponents of open records and believe birthparents and adopted persons should have access to identifying information. They believe such information will make it easier to locate a triad member; however, even with identifying information, it could still take years to locate a person. They also believe that contact will help resolve the losses and pain caused by adoption.

An adoption search group is a group that seeks to help an adopted person or birthparent locate birthparents or birthchildren, respectively, or provides them with the techniques or information to enable them to perform their own search. They may also support the searcher emotionally.

The best-known search group is ALMA (see ADOPTEES' LIBERTY MOVEMENT ASSOCIATION), and cub is the best-known birthparents' search group (see CONCERNED UNITED BIRTHPARENTS). The AMERICAN ADOPTION CONGRESS (AAC) is an umbrella group with which most of the major groups (with ALMA as the most notable exception) are loosely affiliated. Occasionally search groups also help an adoptive parent locate a birthparent.

Search groups believe adopted persons have an inviolable right to information concerning their genetic origins or the and they purport to have difficulty understanding why this information can or should be denied. Some adopted adults cannot understand or do not believe that 20 or more years ago, unwed motherhood was considered reprehensible or shameful by many segments of society who shunned unwed pregnant women. All they would need do is talk with unmarried women who became pregnant at that time to verify the emotional climate at that time.

Whether meeting an adult birthchild would lessen these powerfully negative feelings is a matter of much heated debate between open birth record advocates and proponents of confidentiality.

Some advocates of open records believe adoption information should not be available to an adopted person until adulthood (or the age of 18 or 21 years old). Others believe minor children and all the members of the ADOPTION TRIAD (adopted child, birthparents and adoptive parents) should have access to identifying information from the point of adoptive placement.

In the case of an OPEN ADOPTION, where identifying information is shared, there is less reason for adopted persons or birthparents to prepare an elaborate search strategy because this information is already known. However, it is estimated that only about 10% of all infant adoptions are open adoptions by this definition. (An open adoption allows for complete disclosure of identities. See entry on open adoption.)

Open record proponents argue that adopted adults are treated as if they were children and forced to adhere to a contract they never agreed upon when confidentiality is mandated.

Adopted adult and attorney Heidi A. Schneider has stated that the state's efforts to protect confidential information from curious or prying eyes has also prevented adopted adults from obtaining background information, which Schneider believes should rightfully belong to the adopted person. Schneider believes most of the courts are unreasonably hard on adopted adults who seek information. She adds that even in the case when both adoptive parents and birthparents agree with the opening of confidential adoption records, some courts will mandate an investigation as to whether the information should be turned over. Some open records proponents argue that adopted people need medical information, although this reason is often used as a "front" because curiosity would probably not satisfy a judge deciding whether or not to release records. It is also true that records alone would not provide sufficient medical information in most cases because the birthparents' health 20 years ago was probably more robust and health problems may not have surfaced.

Those who favor open records include adopted persons who have begun search groups, birthparent support groups and activist social workers, such as Annette Baran. In addition, some adoptive parents favor open records, although many adoptive parents remain skeptical.

Arguments Against Opening Identifying Information

Advocates of continued confidentiality are concerned that opening birth records would violate the confidentiality that was promised to most birthparents and adoptive parents as well.

Many birthparents have married or remarried and have other children and may or may not have told their families about the child or children they placed for adoption.

Proponents of sealed records also argue that most adopted persons do not opt to search and are satisfied with the nonidentifying medical, social and other information provided to them by their adoptive parents or the agency. In the event of some compelling need to locate the birthparent, for example, a life-threatening problem requiring the birthparent be contacted, an adopted person or the adoptive parents can seek a court order to unseal the records.

Jerome Smith and Franklin Miroff, authors of You're Our Child: The Adoption Experience, argue that adopted persons have no constitutional right to know about their biological roots-and that open records may violate the birthmother's constitutional right of privacy. Among the courts to reject open records arguments is the U.S. Supreme Court in ALMA Society v. Mellon.

Proponents of sealed birth records also argue that despite the joyous "reunion" stories published in magazine and newspaper articles, some adopted persons who are trying to locate birthparents are devastated by the results of the search, particularly if they are rejected by a birthparent. (Open birth record advocates insist it is better to know the truth, even when the truth is very painful and doesn't live up to the fantasy the adopted adult may have created about birthparents and his or her genetic origins.) (See REUNION.)

Court Order to Unseal Adoption Records

When courts are asked to provide sealed records, the requester must usually provide a "good cause." Good cause includes a need for critical medical information.

If the adopted person is mentally stable and the driving force appears to be curiosity, many courts would not consider that to be sufficient "good cause" to open up adoption records and court proceedings.

Adoptive Parents and Open Records

Although adoptive parents would seem to be and are usually depicted as the most resistant to open records, some are in favor of opening adoption records in certain cases.

Two Canadian studies of attitudes toward open records were published in 1989. Both studies were somewhat limited in terms of numbers of subjects. The adoptive parents were selected from three different periods: 1958, 1968 and 1978. The birthmothers were selected from 1968 and 1978 because of a lack of information on birthmothers from the 1958 period.

Although a significant percentage of adoptive parents (nearly 70%) expressed support for the releasing of confidential information, researcher Paul Sachdev found the "adoptive parents' support was more apparent than real." In general, the parents supported open records, but when they were asked about their own adopted children, they were more conservative.

The adoptive parents who supported release of identifying data also wanted to set conditions; for example, they wanted to ensure the adopted adults were motivated by a true need for information rather than overall curiosity. They also wanted to ensure that the adopted adults were positively motivated and were not "driven by the need to express negative feelings or to cause harm to the biological parent."

The majority of the birthmothers were in favor of opening records. Yet they also wanted to set conditions. Sachdev said the birthmothers wished to ensure the adopted adult's motives were not negative ones, such as resentment or vengeance. In addition, a large percentage of the birthmothers (75.4%) wanted to be sure the birthmother's consent was obtained before any identifying information was provided.

The adopted adults were the most conservative group among the triad. Over half (56.7%) were in favor of releasing identifying data to their birthmothers. The majority (80%) expressed their desire that the adopted adult's consent be obtained before the release of any identifying information.

Nearly 91% of the adopted adults favored limiting identifying information to adults only. In fact, adopted adults were more in favor of a legal age requirement for information than were adoptive parents or birthmothers. Proponents of open records argue that they want "openness and honesty" and abhor "secrecy." However, it's doubtful that they share all information about themselves with others, such as income, personal problems, etc. It is likely that the issue of open records will continue to be hotly debated into the next century. (See also SEARCH.)

E. Wayne Carp, Family Matters: Secrecy and Disclosure in the History of Adoption (Cambridge, Mass.: Harvard University Press, 1998).

Betty Jean Lifton, Lost & Found: The Adoption Experience (New York: Harper & Row, 1988).

Jeffrey Rosenberg, "1988 Survey of State Laws on Access to Adoption Records," The Family Law Reporter, 13:42 (August?16, 1988): monograph no. 3.

Paul Sachdev, "The Triangle of Fears: Fallacies and Facts," Child Welfare 67 (September/October 1989): 491-503.

Heidi A. Schneider, "Adoption Contracts and the Adult Adoptee's Right to Identity," Law and Inequality, 6 (1988): 185-229.

Jerome Smith, Ph.D., and Franklin I. Miroff, You're Our Child: The Adoption Experience (Lanham, Md.: Madison Books, 1987).

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bernadette - 4 years ago
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looking for birth mother date of birth 7-12-1954 #1

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