This was sent to The Seeker by Larry Spalding of the Florida ALCU:
Proposal by the Florida ACLU
The following e-mail was sent to both the ACLU Legislative and
Legal Networks.
It will be interesting to see what responses I receive.
ACLU Lawyers Network -
A right to privacy or a question of access to public records
In recent years, the issue of adoption has increased in complexity and has involved the
interest and efforts of the courts, social agencies, and media. A person adopted in
infancy often continues to be referred to as an "adopted child" even after
reaching adulthood. If this person chooses (or in some cases needs) to discover his or her
birth parents or birth records, they find such records are sealed by the courts and are
inaccessible.
Historically this was considered to be for the protection of privacy and maintenance of
secrecy was ostensibly for the good of all involved. However, careful scrutiny of adoption
statutes and practices has indicated that legal changes may be necessary, and that civil
liberties of adopted adults are being violated. In the absence of any state or national
policy on this matter, and with the belief that adopted persons should be treated no
differently than other citizens, the ACLU of Florida has been asked to endorse the
following policy:
THE RIGHTS OF ADULT ADOPTED PERSONS
"Numerous states have laws or procedures which impede the ability of adopted adults,
their birth parents, and other relatives to ascertain each others' identities. The ACLU of
Florida believes that so long as state or local governments choose to maintain birth
records, such records must be maintained and accessible without discrimination by
virtue of adopted or non-adopted status.
Toward this end, the ACLU of Florida believes that laws denying information about adoptees
and/or their birth parents, and laws allowing access to such information only upon consent
or registration, or laws allowing access to such information only upon court order, deny
adopted persons, their birth parents, and their relatives the equal protection
of the laws and constitutes unwarranted interference by the government with the right of
people to choose whether to associate."
The political debate on the adoption issue has tended to be framed in terms of
psychological issues; emotional issues; medical issues and sociological issues. The stated
policy attempts to confine itself to a civil liberties analysis. I would appreciate your
comments on this proposal, as well as any information whether your state has taken either
a legislative or legal position on this issue. It is my understanding, for example, that
the
Michigan affiliate (or some of its chapters) adopted the policy, while the Washington
(state) affiliate opposed legislation designed to permit access to these records by
adoptees as a violation of privacy.
Thank you for your consideration.
Larry Helm Spalding
ACLU Legislative Counsel
Tallahassee, Florida
Responses from the ACLU Legislative Network
April 29, 1998
This is a compilation of some of the responses sent to The Seeker and the ACLU Legislative
Network.
Upon reading all of the responses, these are my observations :
1. This has not been a topic of debate at the National Board, nor have many
affiliates discussed the issue.
2. The ACLU affiliates in Washington and Connecticut have opposed legislation
designed to provide greater access by adoptees to their original birth
certificates and medical records. Each affiliate has provided a rationale for
its position which I have included.
3. I believe the best comment that I received talked about "framing the
debate." Obviously, your strongest argument is to frame the issue in terms of
the adoptee's rights to his or her personal information. The debate becomes
must more difficult (and unconvincing to many civil libertarians) when it
becomes an issue of competing interests including the privacy rights of birth
parents.
Finally, I have spoken with the executive director of the ACLU of Florida who
has assured me that the board of directors will be afforded the opportunity to
debate this issue at a future meeting.
Good luck with your continuing efforts on behalf of adoptees.
Larry Helm Spalding
ACLU Legislative Counsel
Tallahassee, Florida
---------------------------------
ACCESS TO ORIGINAL BIRTH CERTIFICATE/ responses
As a person with no first-hand experience with adoption, either as a child or
as a parent, I find myself in strong agreement with Ann Landers on this issue,
and in strong disagreement with the proposed policy.
Frankly, I don't see anything in the proposed policy that states a civil liberties
rationale; it just states a conclusion. Why, for example, would we say that it is an
"unwarranted interference by the government with the right of people to choose
whether to associate" to require that both parties consent to the association? It
seems to me the truth is *exactly the opposite* -- that *forcing* an intimate association
upon a non-consenting person (parent or child) is an "unwarranted interference by the
government with the right of
people to choose whether to associate."
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It is the ADULT adopted child looking for his or her original birth certificate/medical
history. Sure, many birth parents want to know "whatever happened to" their
child. That is only natural! And many adoptees want to know who they are! But that isn't
the issue at hand. They want what rightfully belongs to them, their birth certificates and
original
medical records.
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This is an excellent topic, with competing interests, which we should debate at our
affiliate board meetings. Individuals should have a right to their original birth
certificate, but at what price to the rights of the birth parents?
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I'm troubled by the proposal on practical grounds. It seems to me there are some people
who might not put a child up for adoption w/o the confidentiality pledge. In legal terms,
why can't the mother and the agency enter into a contract that includes a confidentiality
clause? If it is because there is a third party affected, does that mean that all
contracts between the birth mother and the agency are void? For example, if the mother
can't agree to confidentiality of adoption, why can she agree to the adoption at all? If
she can give away custody of the child, which is much more drastic than keeping her own
identity
private, why can't she give away any right the child has to information? I think that any
attempt to define these issues in constitutional terms is both unnecessary and may also be
wrong. I also don't know why we need to. I think we should support increased
disclosure. I think we should encourage disclosure as the default, but
constitutionally compelled????
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Could access by the adoptee be made conditional upon consent/release by the
birth parents (or at least one of them)? If not, does that override the access to records
rights of the adoptee against the privacy interests of the birth parents? What is the
civil liberties interest in choosing one side over the other in that instance?
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--Is there a "for the good of the few, or for the good of the many" argument
relative here? If so, then I can personally tell you that far more women are trying to
locate their missing child, and vice versa, than those who don't want to be found.
However, the main issue here is obtaining the child's *original* birth certificate, and
currently, the only way to do that in most states is to locate the birth parent.
Remember, these "adopted children" are well, and I do mean WELL over 18 years
old! A reasonable expectation of privacy while the child is a minor has never been an
issue. All involved agree with that. The messages I read are concerned with issues like,
"I have breast cancer, and I have a 10 year old daughter. I want to know if this was
hereditary..." With the *original* birth certificate in hand, the adoptee could then
find the hospital and obtain that information.
While both sides have expressed a great interest in meeting one another, the issue at hand
is "Who owns a Person's Birth Certificate and original medical records?" It
isn't about reunions. If it happens, that is great!
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Adoptees are entitled to their birth certificates because non-adoptees areentitled to it
by statutory authority. The fact that everyone except adoptees can access their birth
certificates gives adoptees that same entitlement because of the Constitutional doctrine
of due process and the equal protection of the law.
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Privacy interests. There are mothers (and fathers) who do not want to have any contact at
any time in the future with a birth child that has been adopted. Do they have a reasonable
(and arguably constitutional) expectation of privacy that once an adoption has been
granted all records will be sealed and there is no possibility of future contact with the
child unless they so choose?
Doe v. Sundquist says no, that there is no right to privacy that extends to the
nondisclosure of birth information and that birth parents have no reasonable expectation
of anonymity. There are a variety of reasons for this, all of which you can read in the
opinion, but briefly, the fact is that records were *not* sealed to protect the anonymity
of the birth parents. They are *not* sealed upon relinquishment, but rather upon adoption
if one even occurs. This leaves the records open for months, years, or sometimes in the
case of foster children who are not adopted, they are never sealed at all.
As a matter of law, the names of birth parents are published in newspapers prior to
finalization hearings.
Clearly the intent of the law was not to protect the identity of the birth parent, which
the court in Doe v. Sundquist recognized. That is why the issue of open records is not a
search issue. Most individuals who want to search and find their birth parents can do so,
regardless of whether their original birth certificates are available to them.
As the courts have stated, a birth parent has no reasonable expectation of anonymity even
in a sealed records state.
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The Washington Legislature considered a bill in 1998 (HB 2810, SB 6496) that would make
birth records available to adult adoptees upon request.
This would include the identity of the birth parents, and would not give the birth parent
the opportunity to object to that disclosure. We do recognize the problems faced by adult
adoptees, and do support other legislation on their behalf.
The following is a more detailed explanation of our position:
The ACLU of Washington believes that individuals should determine what personal
information they wish to keep private. In the traditional system of sealed adoption
records, the decision was made by the government. Rather than allowing individuals to
decide, the
government determined that secrecy must be maintained, even if neither party desired that
privacy. The ACLU-WA strongly objects to such a system.
Instead, we favor a system that allows the individuals to decide whether to maintain their
privacy or not. If both birth parents and adoptees wish the information to be available to
each other, that information should be available, without government interference.
Adult adoptees should also have access in all cases to all information about their birth
and adoption that does not identify the birth parent. This includes, but is not limited
to, the location and circumstances of birth and adoption, and any available medical
history.
No discrimination against adoptees, either governmental or private, should be sanctioned.
In particular, amended birth certificates, or original birth certificates with the
identities of the birth parents blacked out, should be considered every bit as valid as
unaltered
original birth certificates. The ACLU-WA also objects to health care and insurance
discrimination based on family medical histories (or lack thereof). We support another
pending bill (SB 5298) which would prohibit such discrimination based on genetic
information.
We do, however, believe that both the birth parents and the adoptee should have the right
to remain private, if they so desire. Although the government cannot, and should not,
prohibit lawful private information-gathering, government should also not be in the
position
of facilitating that information dissemination against the wishes of the subject
individual. Thus, if a birth parent wishes to keep his or her identity private, the state
should black out his or her name and address on any copy of the original birth certificate
that is
disclosed.
This can be accomplished by allowing both birth parents and adoptees to file an affidavit
of nondisclosure (an "opt out"), similar to provisions in current state law.
This affidavit should allow either for total nondisclosure of identity, or for disclosure
of identity but a prohibition on contact from the other party. The affidavit should be
kept with the original birth certificate and adoption records, and agencies should follow
the directions contained therein whenever disclosing those records. Both birth parents and
adoptive parents
should be notified of this "opt out" option at the time of adoption.
Although the ACLU-WA generally believes that privacy is an inherent right that individuals
should not need to affirmatively sign up for, the tangled history of adoption practices
argues against that in this situation. Apparently, different promises were made to
different
birth parents about the confidentiality of adoption records. Since there is no way to sort
this out, and there are good reasons arguing for disclosure of information to birth
parents and adoptees, we feel it is appropriate to lean towards disclosure in the absence
of an expressed desire otherwise. Therefore, we support fully open records unless the
affected party has expressly filed an "opt out" affidavit of nondisclosure. This
affidavit should be able to be filed or revoked at any time.
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The difficulty is how do we frame the debate. Is this an issue of competing privacy rights
-- those of the adoptee and the birth parents? Or, is this an issue of an individual's
right to his or her original birth certificate and medical records? The answer is not that
difficult to either question. Rather the difficulty is stating the real issue here.
----------------------------------------------------------------------
Connecticut has fought the passage of such legislation .
It is a violation of the agreement made with the birth mother at the time of the adoption.
She was guaranteed anonymity at that time and it may even have played a part in her
decision to give birth and not seek an abortion. These efforts are an abridgement of that
agreement and may prevent such decisions in the future.
The policy that is proposed states "to ascertain each other's identities." That
is simply not true. Existing policy in most states prevents the state from releasing the
birth mother's information without her consent. Most states have a process to have the
state contact the birth mother and make a request for information or a request to release
information. If the birth mother says "No" then the process ends; if she says
"yes" then the process continues to the degree that she approves. The policy and
the bill would force the state to
release information against her will. That is outrageous and untenable in light of ACLU
policy in other areas.
The national advocates for this type of legislation are people who have gone through this
process and have been told that the birth mother does not wish contact. They want to force
contact regardless of a consideration of the degree of damage or harm this may do her and
her present situation. There are no guarantees of her safety or that the adoptee won't use
the information in an untenable way. Even blackmail. In ACLU fashion we should let the
woman decide what is in her best interest after giving her the choice. We should not
force a choice on her which may even endanger her.
The civil libertarian position on government held personal information records of any type
(particularly family records, reproductive records and health records) is that they should
remain confidential and only used with the permission of the person they name. We fight
that fight in so many other instances like HIV name reporting that to hold a position
contrary in this instance would be hypocritical. What names are the government collecting
now that they are promising not to release that they might in twenty years through
legislative action? I hope that we would fight that then like we should be fighting this
now.
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I do not see this so much as a privacy issue, but rather one of access to public records.
That being the case, I like the proposed policy. Nonetheless, I am concerned that
there should be some protection for birth parents. One cannot simply dismiss their rights
by saying the child is now an adult. If they entered into the adoption with the
expectation of privacy,
that merits considerable weight.
In other words, I tend to favor the side of the adoptees if we can fashion a policy that
shows some consideration for birth parents who do not want contact with the children they
gave up for adoption. Is that possible? Or, is this an all or nothing proposition?
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For those interested in additional information from the point of view of the adoptee, you
may wish to access one or more of the following web sites:
1) The Seeker's Sought & Found Section,
www.the-seeker.com/found.htm
2) Adoptees' Rights, www.the-seeker.com/Adoptees.htm
3) Adoptees' Rights - Your Opinions, www.the-seeker.com/rights.htm
4) Seeking Adopted Child, www.the-seeker.com/relative.htm
5) Seeking Birth Parent, www.the-seeker.com/relative.htm
6) Seeking Missing Sibling, www.the-seeker.com/relative.htm
7) Adoption Sites, www.the-seeker.com/adopt.htm
8) news:alt.adoption.searching
Larry Helm Spalding
ACLU Legislative Counsel
Tallahassee, Florida
The responses above were addressed by Shea Grimes from Bastard Nation:
Thanks for forwarding these interesting responses. I hope this will be a step
in the right direction, of opening a dialogue between various chapters, adoption reform
groups, and the National Chapter on the issue of open records. I would appreciate it if
the following
information would be passed on to this group, since there is so much misinformation and
faulty assumptions about the issue. Good heavens, apparently one of your respondents has
come to her opinion based on Ann Landers' column!
Upon reading through the comments, it seems like most of the opposition to open records
for adult adoptees is based on a singular, but very faulty, premise. That is that
birthparents were promised or guaranteed anonymity at the time of relinquishment. That is
false on
a variety of levels. First of all, most states did not seal records until the 1940's and
50's. Alabama sealed records in 1991!!
Many of the adults now seeking access to their birth certificates were
relinquished when records were still open. Secondly, in NO state are records sealed upon
relinquishment.
They are sealed when the child is adopted, IF the child is adopted. If, as these people
claim, those who relinquish a child are "guaranteed" anonymity, clearly records
would be sealed upon relinquishment so that for a child in foster care or in the
intervening months and often years between relinquishment and finalization, the
birthparent's names are not public record. Because records were sealed to protect the
*adoptee* from the stigma of illegitimacy and not the birthparents' identity, there is no
attempt made to hide the
birthparents names. The names of the birthparents are even printed in the newspaper in
legal notices of the finalization hearing, as a matter of law!
It also appears that none of the respondents are aware of Doe v. Sundquist, which
shattered the notion that there was any right to privacy that extends to birthparent
anonymity. I am particularly astounded by the response that drew an analogy between open
records for adult adoptees and the reporting of names of those with HIV. How bizarre!
Birth certificates belong to the person for whom they have been issued, and as I allude to
above, the courts have already ruled that there is no right to anonymity from one's
offspring.
There are also some scattered references to concerns that birthparents would not
relinquish if records were open, the abortion rate would rise, etc. The data obtained
through states that already open records as well as the rest of the free world, most of
whom
opened records decades ago, debunks the myth that open records is a deterrent to adoption.
Lastly, there is confusion about what open records would *do*. Certainly it would
not 'force' any unwanted contact on anyone to any greater degree than already occurs.
People who want to search and find can already do so in most cases. that is what makes the
whole
"confidentiality" argument so laughable. How in the world do people think all of
those reunion shows happen? As I state above since records were never intended to be
sealed to protect the birthparents' identities, the paper trail is fairly wide and long.
This is about
the right of adoptees to access their original birth certificates regardless of whether
they want to search or have already done so.
And in response to the issue relative to the Ann Landers comments above, the one who originally wrote it said:
Thanks for the response and the background.
Thanks also for the rebuttal from the proponent. It was quite informative and leads me to
conclude that if I were going to vote on this issue, I would need to know a lot more about
it than I do now.
Adoptees' Rights to Their Original Birth Certificate
Adoptees's Rights - Your Opinions
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