How far have
we come since 1935 when access to original birth
certificates of adoptees first became restricted in
California? The short answer is: not very far at
all! In some ways access has even been made more
difficult.
Janine Baer (article)
is correct that the social and political climate of
the 1930's made it possible for adoption and child
welfare agencies to easily pass the "closed records"
legislation which still remains intact to this day.
With the support of a few influential adoptive
parents (some of whom were also legislators) and
literally no opposition, these laws seemed to make
good sense at the time.
However, the legislative purpose of the laws was
never aimed at protecting the confidentiality of
birth parents, as the present-day opponents to
openness would contend. Our current laws, Family
Code Section 9200 (which pertains to adoption case
court files) and Health and Safety Code Section
102705 (which relates to birth certificates) evolved
from the same exact laws of 1927 and 1935
respectively, which were designed to protect the
integrity of the adoptive family by preventing
access to these records by outside third parties to
the adoption. They were not originally intended to
limit access by any of the "parties to the action,"
but that was soon changed.
Amending adoptees' birth certificates, by replacing
the names of the birth parents with the names of the
adoptive parents after the adoption is ordered final
by the court, was deemed necessary to prevent
knowledge about the adoption after the court records
were closed to everyone, except by order of the
court. The standards necessary to obtain such a
court order are very difficult for most adult
adoptees: 1) for court records - "exceptional
circumstances and for good cause approaching the
necessitous;" 2) for birth certificates - "good and
compelling cause shown..." and "to assist in
establishing a legal right." Mere curiosity and
claims of freedom to personal information have never
been enough to establish "good cause."
Judges do have the discretion to grant these orders
and in some counties at various times they have been
routinely granted. Thus, there is wide disparity and
unequal treatment of adoptees who file petitions for
access to either the adoption court records or their
original birth certificates. Unfortunately, there is
also a difference in the amount of information that
adoptive parents and adoptees will have and be able
to obtain about the birth parents depending upon
whether or not theirs was an agency or independent
adoption (cf. "private" or "open"). This set of
circumstance is totally beyond the adoptee's control
and is arguably a violation of equal protection
under the law.
One area where progress has been made occurred in
1984 with broader requirements for the collection
and distribution of health and medical information
between birth parents, adoption agencies, adoptive
parents, and adoptees. Disclosure is given and made
but only with non-identifying information.
In 1984 California also passed what amounts to a "modified,reverse
waiver" bill which, like all adoption law, is not
retroactive in nature. Since then, birth parents who
place children for adoption may consent in advance
to future disclosure of their names and identity if
they check off a box on their consent form for this
purpose. If the adult adoptee files a request for
information, and if their birth parent (usually just
the birth mother) was amenable to future contact at
the time of adoption, they will be able to obtain
the identity of their birth parent. The first
adoptees who might have reunions due to this statute
will be 21 years of age in the year 2005. (That
doesn't sound too far away now!)
There was no immediate gain for adult adoptees by
the amendments of 1984. The only change for us was
the additional passage of a mutual consent,
registry-type system at the agency or state level.
If both the adult adoptee and the birth parent
voluntarily sign and file their "Waivers of
Confidentiality" then their identities will be
released. Reportedly, only very few reunions have
resulted from the use of waivers. Unfortunately,
this fact has been used as evidence that adoptees
and birth parents do not want to search! (Send in
your waiver today!) If only one waiver is in the
file the agency or State Dept. of Social Services
cannot solicit the other consent. Many adoptees and
birth parents are not even aware of this system but
it is the present status quo for most California
adoptions.
An extension of the above waiver system is the
so-called "sibling registry" designed to reunite
siblings who have been separated by adoption. The
only hitch is that both siblings need to be at least
21 years old and at least one of them must be aware
of the other's existence.
Because of much media attention and publicity
surrounding search and reunion, a large majority of
the public is unaware that in almost all of our
states, including California , access to adoption
and birth records is still kept secret, even from
those directly involved and affected by the process.
In 1990, a bill for unrestricted free access to
birth and adoption records for adult adoptees (and
birth parents of adoptees) was introduced in the
State Assembly but failed to make it out of
committee without amendments which would have
defeated its purpose. There is no new legislation
presently pending in California which would affect a
change in the above-described laws.
It has been thought and felt that the modern trend
has been towards more openness in adoption practice
and legislation. In reality, many adoption reform
groups have lobbied and struggled for positive
change in numerous states without success. This is
why recent successful legislation in Tennessee has
given us some hope for the future. We are also
watching carefully to see what happens with the
Oregon initiative on the ballot this November!
In 1980, the Model State Adoption Act held out the
hope that there might be an advance in adoptees'
rights and freedom. It was soundly defeated. There
is now the threat that some states considering the
revision of their adoption laws will ratify the
Uniform Adoption Act of 1996 either in whole or
part. Within this Act, the statutes which pertain to
access to birth and adoption information for
adoptees and birth parents are, I am sad to report,
highly regressive and repressive. It also contains
provisions for the criminalization of adoption
search and search consultants!
I believe that it is important for us to know how
and why adoption laws have been promulgated in the
past in order for us to design a strategy that will
result in positive change for the future. The above
is intended only as an overview to begin discussion
and thought; there are many more details and nuances
to the statutes and their history which merit
further consideration.