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Pennsylvania Bastard on the PA Adoption Advisory Committee (This feature appeared in the Fall 1999 issue of the Bastard Quarterly.)
Minority Report, Subcommittee on Search and Information of the PA Joint State Government Commission Advisory Committee on Adoption Law Submitted by Cynthia Bertrand Holub, Member of the PA Advisory Committee on Adoption Law The following is a minority report from the Subcommittee on Search and Information of the Advisory Committee to the Joint State Government Commission on Adoption Law. I have felt it necessary to write this report because otherwise the sole voice on that subcommittee for the unconditional right of adult adoptees to the original, unaltered records of their births will not have been heard outside that subcommittee. While I understand the aim of arriving at consensus on this, as other issues, there can be no consensus and no compromise where the matter of a fundamental right is concerned, and I will not be silent because I was outvoted. I would not want my silence to be interpreted as approval. One of the reasons I write this is to point out that the very make-up of this subcommittee precluded anything other than adjustments within the parameters of the present sealed records system. Indeed, several members of the subcommittee, including its Chair, function as confidential intermediaries for the court and for adoption agencies, and thereby earn their livings from the sealed records system. I am casting no aspersions on the ethics or good intentions of these individuals, with whom I have worked and whom I respect, but one simply cannot expect people to embrace a position which would put an end to their own livelihoods, or to be able to divorce themselves enough from the tenets and assumptions of their own profession to look at this issue from an entirely different perspective. These individuals are accustomed to viewing adopted persons as their clients when they petition for searches to be done on their behalf; they see themselves, therefore, as an essential element in the present system and can envision no other. My persistent efforts to draw the discussion to the arena of civil rights met with failure, as these individuals could not imagine the issue in terms other than searching for biological relatives. All adoptees so not wish to search; however, all adoptees have a right to the original records of their births. The matter may be simply stated. Adult adoptees are being denied their right to access the official government records of their births, their original birth certificates, in the same manner as all other adult, non-criminal citizens. This is a violation of our right to due process and equal protection under the law, as delineated in the fourteenth amendment to the U.S. Constitution. It is time for this discrimination against an entire class of citizens because of the circumstances of their birth to end, and for the era of shame which led to the sealing of our birth certificates in the first place to end as well. The primary objection which was raised to restoring this access to adult adoptees (which we were deprived of as recently as 1984 in PA) is that such an act would violate a birthparent's right to privacy. There are several ways to look at this argument. One of the most compelling is that the original sealing of records was not done to protect birthparents' privacy. In nearly all states adoption records were open to the parties of record to an adoption, and original birth certificates available to adult adoptees, until right after World War II. (E. Wayne Carp, "Family Matters: Secrecy and Disclosure in the History of Adoption : Harvard U. Press, 1998) The reason for sealing these records was primarily to protect the adoptee and the adoptive family from public scrutiny and access to private information such as illegitimacy, which it was feared could be used for purposes of blackmail. The right to anonymity of the birthparent was nowhere defended; indeed, many adoption decrees (mine included) included the last name of the birthparent as part of the birthname of the adoptee. In addition, we must look at when original birth certificates are sealed. If there were a concern for birthparent privacy, they would be sealed at the time of relinquishment or termination of rights, but they are not. Those records are open until the finalization of an adoption, which may be months or years after an adoptee's birth, or indeed, they may never be sealed if an adoption does not take place. In many states, birthparents' names were published as a matter of record in legal publications. There has always been a provision for opening records at the discretion of the court for "good cause", so no promise of confidentiality could have been absolute. The paper trail to an adoption is such a long one that thousands, perhaps millions, of adoptees now search for and find their birthparents, with or without their original birth certificates. The sealing of records came about for many reasons, but one of the most important was a new psychological paradigm which arose during the 1940's. According to psychoanalytical theory, unwed mothers were neurotic and acting out unhealthy fantasies by producing an "illegitimate" child. It was deemed healthiest for mother and infant for there to be an early, irrevocable break. In the days when it was essential for middle class status to have a chaste daughter, families colluded with agencies in creating the climate of secrecy in which birthmothers were encouraged to go on with their lives as if nothing had happened, and adoptees were considered blank slates upon which their new families could write. (Rickie Solinger, "Wake up Little Susie: Single Pregnancy and Race Before Roe v. Wade" : Routledge, 1992) No one considered the rights of the adoptee. Nowhere else in American law is a contract or agreement between two parties, one which may not ever have been put into writing, held to be binding upon a third. Nowhere else is an agreement about a minor held to be binding when that minor reaches majority. We look with amazement at cultures which arrange marriages while the parties are still children, but we do not hesitate to hold adult adoptees to some alleged agreement made in their infancy, and about which they had no say. Some say we need to keep the promises that were made. Aside from the fact that I have never, in long experience in the adoption reform movement and a great deal of research, seen a relinquishment document which promised any sort of confidentiality, we need to look at those "promises," if indeed such were given. How can someone promise that a law will never change? A statute is not a promise. I know of many birthmothers who were told that their children would be able to access their records when they grew up, and indeed, until 1984, when original birth certificates were sealed to adult adoptees in PA, this was the case; which promises shall we honor? And, most importantly, is this a promise that had a right to be made? If not, it should not be upheld. How could adoption agencies and others have made a promise by which adoptees would be deprived of their rights? Yes, if records were opened to adult adoptees, some might use them to search, although that is not the issue here. And yes, some birthparents might be upset. I do not, however, think the possible embarrassment of some outweighs the civil and constitutional rights of the six million adoptees in this country who are accorded second class citizenship in this regard. One might as well argue that many white people were "promised" by statute that they would never have to drink from the same fountain or sit at a lunch counter with a black person; many were deeply discomfited when that "promise" was broken by the Civil Rights Act, but we certainly do not believe it was a "promise" which should have been upheld. We must look at the right to privacy. It was intended to apply to the protection of citizens from government interference, not to the shielding of adult citizens' identities from one another. The Sixth Circuit Court has ruled in the TN case of Doe v Sundquist that opening records to adult adoptees does not violate the right to privacy of birthparents. (The Court of Appeals, Engel, Circuit Judge, held that (1) statute [which would allow disclosure of previously confidential adoption records] does not violate federal constitutional right to familial privacy, if such right exists; (2) statute does not unduly burden adoption process; (3) right to avoid disclosure of confidential information does not exist : 943 F.Supp. 886; 106 F.3d 702) This decision was let stand by the Supreme Court. Original birth certificates are not being made public, but released to those for whom they were originally issued, the adoptee. Other objections can be met, as well. Some have used the scare tactic that opening records to adult adoptees would cause young pregnant women to have abortions rather than have their children discover their identities when they grow up. This is false; those states (Kansas and Alaska) and countries with open records do not have higher abortion rates than those with sealed records. There is also no correlation between opening records to adult adoptees and adoption rates in those states and countries. Maintaining the sealed records system perpetuates the stigmatization of illegitimacy and adoption. Things which are shameful are kept hidden and secret. Adoptees are not shameful. It is a great disappointment to me that the Sub-Committee on Search and Information (which I believe should have been named Records Access, since it is not only about searching) will not go on record as supporting the rights of adult adoptees to the original records of their births. However, this struggle will not end here. It is only a matter of time before the United States enters the ranks of most of what we used to call the Free World in granting adult adoptees access to their birth records. Respectfully submitted, Cynthia Bertrand Holub Y Cynthia Bertrand Holub is the Education & Training Chair for Bastard Nation and also sits on BN's Executive Committee. Cyn works as a librarian and lives with her husband and children in Philadelphia, Pennsylvania. Her writings on adoptee-rights issues have appeared frequently in local and national press. (This feature first appeared in the Fall 1999 issue of the Bastard Quarterly.) Copyright 1999 Bastard
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