Do You See What I See? A Layman's Observations About Truth and Lies in Adoption Reform

“…and you will know the truth, and the truth will set you free.” - John 8:32

The above quote has been widely misappropriated and misapplied by adoption reform activists through the years to assert that knowledge of our roots through obtaining the truth contained in our original birth certificates will set adult adoptees free from a variety of genealogical, psychological, medical and discriminatory maladies. Though the assertion has wide appeal, the verse, when read in the context of the preceding verse, of course has nothing to do with the adoption reform movement. It’s an appealing, inspiring concept that may have some general application, but in the final analysis, it’s a soul-stirring truth claim rooted in a huge inferential leap wrapped in a misapplied scripture.

Similarly, the valid and passionately held belief (which I share) that every adoptee should have access without a court order to an unaltered copy of their original birth certificate, which should contain the true name(s) of their original parent(s) has fallen prey to embracing appealing political assumptions that, so far, are simply rooted in fiction.

How can advocates expect to win a battle for truth in adoption if the foundational assumptions undergirding their political platform are fictional?

The discussion about adult adoptees’ right to obtain a non-certified copy of their original birth certificate is heating up, and I, for one, believe it’s a conversation long overdue. Is it a civil/fundamental right rooted in principles of due process and equal protection found in the Fourteenth Amendment to the Constitution? Is it a procedural right? A human right? A policy decision left up to states that create remedial rights for citizens in order to carry out the administration of compelling interests of the state regarding a document created by the state for purposes of the state?

Last month’s blog outlined key differences between the “all or nothing now” (AONN) camp and those who I call Pragmatists, who have evolved to a different mindset after years of legal input and time in the trenches.

The AONN camp’s political platform is undergirded by two key assertions:

1) Adult adoptee access to original birth certificates is a fundamental civil right.

2) Therefore, any legislation recognizing such a civil right must “leave no one behind.”

There are some serious problems with both assertions.

Recently, after being challenged to either start winning cases or give up the claim and apologize for a cruel hoax, leaders of the “all or nothing now” (AONN) camp publicly stated that winning a Supreme Court case affirming adult adoptee access to original birth certificates has “never been part of our strategy.” Really? Even though it is the US Supreme Court that has denied, affirmed, or reversed itself in virtually every other civil rights movement in U.S. history? At least eighty-two (82) cases are summarized on the website of the Leadership Conference, which claims to be “the nation’s premier civil and human rights coalition.”

Why would anyone asserting a civil rights issue punt when it comes to appealing a case up the ladder to the Supreme Court?

Perhaps the decision not to pursue a Supreme Court ruling is rooted in the outcomes of three 1970s cases (see summaries below). Arguments that sealed original birth certificates abridge an array of fundamental rights of adoptees resulted in two dismissals and an abstention by federal courts. This presents AONN with quite a dilemma, and some AONN leaders have already started backing off the use of “civil rights” and changing the assertion to “a right.”

In the same way that it is impossible to get a bill passed through a state legislature if a committee chair refuses to calendar the bill for hearing and a vote, it seems reasonable to assume that it is pretty much impossible to get the U.S. Supreme Court to rule on a matter that lower federal courts refuse to even consider. If there is some secret, back door way to link an issue to civil rights without amending the Constitution or a ruling from the Supreme Court, this non-lawyer layman would love to hear it.

I am an advocate for truth and transparency in adoption. I want every single adult adoptee to have unrestricted access to their original birth certificate and at least certain adoption records. At the same time, I know that, no matter how much success is achieved by the adoption reform movement, even after every single original birth certificate and adoption records file held by every court and Vital Records Department in every state is once again made available by law to adult adoptees, it is not a 100% attainable goal.

I hate the fact that this is true, and it breaks my heart. But tens, if not hundreds of thousands of adoptees would still be left behind without their truth, even if they get a non-certified copy of the document.[i] Why?

  • Maternity homes routinely encouraged or required women who relinquished during the Baby Scoop Era (approximately 1940 – 1980) to use fictitious names. Unless OBC access laws are also changed to require that the custodians of maternity home records disclose the real names of women from their records, a huge truth gap remains.

  • Safe Haven laws typically allow women to leave their infants with a hospital or fire station with no requirement to be named on an original birth certificate.

  • Some records contain no names of parents, or simply cannot be found.

  • So far, only about 5-10% of those eligible to apply for their original birth certificates (and adoption records in certain states) have done so. Lack of awareness or lack of interest “leaves behind” over 90% of eligible adult adoptees.

  • Conservatively, anywhere from 200 to 5000 adoptees per state die every year, having already been left behind because of unjust laws and recalcitrant courts.

Therefore, the claim that any political strategy will result in “no one left behind” cannot be true. It sounds like a dedicated platform for solidarity, but in reality, it is not possible. It is a fiction. A false hope. Anyone who has done even cursory research about the records involved knows that the claim is impossible to achieve. A lie.

Therefore, the core strategic question becomes not whether, but how many will be left behind? And how do various state-by-state strategies affect those numbers? If you had the chance to make a cure for a devastating disease available to an estimated 99.9975% of a given population, would you do it? Genetic genealogists predict that in just two to five years, nearly everyone will be findable, making the alleged privacy protections of sealed OBCs moot. This is a separate blog topic in itself.

Next, the assertion that access to original birth certificates for adult adoptees is a fundamental civil right has been treated as an absolute - though as yet unrecognized - truth by those in the “all or nothing now” (AONN) camp for some two decades. The argument goes something like this: State sealed records laws treat adult adoptees as a suspect class and deny us due process and equal protection rights in violation of the Fourteenth Amendment to the Constitution. Like the tagline, “We leave no one behind,” the drumbeat of “Fight for adoptee rights!” promises grandiose and historic associations with great civil rights efforts rooted in the Constitution and Bill of Rights. After all, how could such a glorious underlying belief not be true?

Unsuccessful court cases have made similar arguments based on the First, Fourth, Fifth, Ninth and Thirteenth Amendments as well. But here’s the daunting truth so far about the results of such arguments, along with language from the landmark cases upholding OBC access laws in Tennessee and Oregon:

CASE

Mills v. Atlantic City

148 N.J. Super. 302 (1977) 372 A.2d 646

RULING SUMMARY (highlighting added)

No fundamental right of adoptees has been abridged

Adoptees are not a “suspect class”

State has a compelling interest in regulating access to records

• Court sets procedural criteria

• Burden of proof should shift to the state to prove that good cause is NOT present

• Neither party (adoptee or birth parent has “an absolute right.”)

Constitutional principles of equal protection do not require that all persons be treated identically. State v. Krol, 68 N.J. 236 (1975). In Torres v. Wagner, 121 N.J. Super. 457 (App. Div. 1972), the court noted that the Legislature had wide discretion in the creation and recognition of classes for difference treatment... If there is a reasonable basis for the recognition of separate classes and the disparate treatment of the classes has a rational relationship to the object sought to be achieved by the Legislature, the equal protection clause is not violated. [at 459]

CASE

Yesterday’s Children v. Kennedy

U.S. Court of Appeals for the Seventh Circuit - 569 F.2d 431 (7th Cir. 1978)

Argued Nov. 1, 1977. Decided Dec. 29, 1977. *Petition for Rehearing Denied Jan. 16, 1978

RULING SUMMARY

In August 1977, a three-judge district court granted defendants' motions to dismiss the action without prejudice on the grounds of abstention.6 The opinion reasoned that the Illinois courts could "apply the (two) statutes in such a way as to withstand constitutional attack" (mem.op. 6). To support abstention, the opinion relied principally on Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S. Ct. 1898, 52 L. Ed. 2d 513; Bellotti v. Baird, 428 U.S. 132, 96 S. Ct. 2857, 49 L. Ed. 2d 844; and Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376.7 We have jurisdiction of this appeal from that decision because the three-judge district court did not reach the merits of plaintiffs' constitutional arguments (MTM, Inc. v. Baxley, 420 U.S. 799, 95 S. Ct. 1278, 43 L. Ed. 2d 636), nor do we. Our affirmation is based solely on abstention.

CASE

ALMA Society v. Mellon U.S. District Court for the Southern District of New York - 459 F. Supp. 912 (S.D.N.Y. 1978) November 2, 1978

RULING SUMMARY

No constitutional or personal right is unconditional and absolute to the exclusion of the rights of all other individuals.

The statutes before the Court do not totally deny plaintiffs access to the information they seek. They only require that they, as members of a class in which there is an overwhelming state interest, must demonstrate good cause in order to protect the countervailing privacy rights of the natural parents. Such a limitation based upon a valid state policy of protecting the rights of others is not an unconstitutional exercise of state power.

In the last analysis, as the Supreme Court has expressly pointed out, "the protection of a person's general right to privacy his right to be let alone by other people is, like the protection of his property and of his very life, left largely to the law of the individual states." Katz v. United States, 389 U.S. 347, 350-51, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576 (1967) (footnotes omitted).

It is the opinion of this Court that plaintiffs' rights to privacy and to receive important information are not constitutionally abridged by the New York statutes but rather are permissibly limited in accordance with a valid state interest to balance conflicting rights of privacy and to protect the integrity of the adoption process, which is likely to suffer if the assurances of secrecy are not present. Constitutional principles of equal protection do not require that all persons be treated identically.

The state has more than a rational basis; it has a compelling interest in regulating the access sought here.

These views will be recognized almost in haec verba as the views also expressed by the New Jersey Court in Mills v. Atlantic City Department of Vital Statistics, 148 N.J.Super. 302, 372 A.2d 646 (Ch.Div.1977).

The Court holds that the regulations challenged here are reasonable and appropriate; the Court accordingly concludes that even if the plaintiffs had made out a constitutional right of access to their records in any circumstances their failure to accommodate the state's interests seems to the Court to require that their complaint be dismissed and accordingly the Court concludes that judgment shall be entered herein dismissing the complaint.

SO ORDERED.

CASES FROM STATE COURTS FOLLOWING RETROSPECTIVE LEGISLATION

TN (Doe v. Sundquist, 106 F. 3d 702 (6 Cir.1997), cert den. 522 U.S. 810 (1997; and

OR (Does v. Oregon) Jane Does v. State of Oregon, 164 Or. App. 542, 993P.2d 822)

RULING SUMMARIES

TN: Retrospective records access law did not impair any contractual or vested birth parent right to privacy.

OR: Adoption necessarily involves a child that already has been born, and a birth is, and historically has been, essentially a public event. In Doe v. Sundquist, 106 F3d 702, 705 (6th Cir), cert den 522 US 810 (1997), the Sixth Circuit Court of Appeals, in rejecting a similar challenge to a Tennessee law that permits adoptees access to birth records, noted:

"A birth is simultaneously an intimate occasion and a public event--the government has long kept records of when, where and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth. The Tennessee legislature has resolved a conflict between that interest and the competing interest of some parents in concealing the circumstances of a birth."

Neither a birth nor an adoption may be carried out in the absolute cloak of secrecy that may surround a contraception or the early termination of a pregnancy. A birth is an event that requires the generation of an accurate vital record that preserves certain data, including the name of the birth mother. That the state has a legitimate interest in preserving such data is not disputed here. We recognize that a birth mother may well have a legitimate interest in keeping secret the circumstances of a birth that is followed by an adoption and also that an adoptee may have a legitimate interest in discovering the identity of his or her birth mother. Legitimate interests, however, do not necessarily equate with fundamental rights. The state may make policy choices to accommodate such competing interests, just as the state has done with the passage of Measure 58. We conclude that the state legitimately may choose to disseminate such data to the child whose birth is recorded on such a birth certificate without infringing on any fundamental right to privacy of the birth mother who does not desire contact with the child.

Though these courts have taken varying views on birth parent interests, they all agree that:

  • The state has a legitimate, or even compelling interest in establishing policy regulating how original birth certificates are managed and disseminated; and

  • In doing so, the state does not abridge any fundamental rights of adoptees. Even the Oregon Court of Appeals, in its favorable ruling upholding Measure 58, framed the issue in terms of policy choices regarding potentially competing legitimate interests - not fundamental rights.

Federal courts have either dismissed or refused to consider constitutional arguments based on abstention. The truth is, this appears to be very unlikely to change. If there is some secret winning argument being held in abeyance for the perfect moment that will reverse these results, it is long past time for the AONN camp to file that brief and prove their assertion.

If the adoption reform community is going to call upon legislators to vote in favor of truth and transparency in adoption, how can we expect to be successful when our own overstated talking points don’t ring true because the language is based in practical and legal fiction? It damages advocates' credibility to triumphantly cite rulings stating that access to original birth certificates does not violate a birth parent’s fundamental right to privacy, while at the same time ignoring rulings stating that policy decisions about how adoptees obtain access to original birth certificates and adoption records made by state legislatures similarly do not violate any equal protection rights asserted by adoptees.

The mundane, state policy-driven, procedural rights approach --rather than a demand for what appears to be unwinnable fundamental civil rights -- diffuses much of the emotion around the issue and is proving to be a message that has already set over two million original birth certificate free in the past decade.

But for now, the more urgent truth is that the Empresses of AONN and their new vassal are either (political metaphorically speaking, of course) wearing no clothes or are very scantily clad (apologies for the disturbing visual), and still trying to ride a lame one-trick unicorn up the stairs of state capitol buildings. It’s time for them to dismount, pick a different horse, and put on some armor held together by the belt of truth.

If, in 50 years, a different Supreme Court grants certiorari and rules that the Fourteenth Amendment does apply to state laws regarding adoptees' original birth certificates, I'll throw a blowout party on the other side of eternity. Until then, I remain a Pragmatist, standing with those committed to supporting state-by-state advocates looking for flexible strategies that influence policies and change procedures to restore access to the greatest number of original birth certificates for the greatest number of living adult adoptees in the shortest amount of time.

Happy Holidays, whichever one(s) you may be celebrating!

[i] Some who assert that the only form of acceptable legislation must “leave no one behind” also claim that the issue has nothing to do with search for relatives, and therefore the truth of the information contained on original birth certificate is immaterial. Legislators are quick to point out the disingenuousness of this claim. Others in the “all or nothing now” (AONN) camp have asked the question “Who holds your Truth?” and stated that a birth certificate is about one thing only: Truth. So even the AONN camp appears to be divided on the issue.

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