The AAARA Resolution and Incremental Change

The adoption reform community was stunned and elated to read the January 13, 2018 resolution from the Academy of Adoption and Assisted Reproduction Attorneys (AAARA), formerly known as the American Academy of Adoption Attorneys (AAAA), endorsing "an individual’s right to know and access their full personal history, including the identity of their biological parents" and therefore, by extension, direct, unfettered access to:

1. original birth certificates;

2. agency records which relate to them and their biological family; and

3. court records of their adoption.

The Academy has come a long way from its position in 1995, when it endorsed the Uniform Adoption Act (UAA), which was promoted by the National Conference of Commissioners on Uniform State Laws (NCCUSL). The UAA endorsed the release of identifying information between adult parties only by mutual consent, and would have sealed adoption records for 99 years in every state. I remember going with a nervous, mortified, outraged group of birth/first parents and adoptees who were members of Adoptees in Search in 1995 to testify before a Colorado Task Force Committee against the UAA. We had no idea what we were doing, but we knew we had to make our voices heard. Our testimony reportedly made a difference, and Colorado ultimately rejected adoption of the UAA.

Here is a partial description from a 1995 article by law professor Joan Hollinger(1), who drafted much of the act:

"The act’s mutual consent registry is a 'user friendly' approach to the contentious issue of whether and when to disclose identifying information to and about the members of an adoptee’s birth and adoptive families. Birthparents and adoptive parents are free to remain anonymous or to maintain contact with each other. Alternatively, birthparents can indicate at any time their willingness to have their identities disclosed to an adopted child when the adoptee is 18 or older. The registry can easily be tailored to accommodate differing state policies, including the confidential intermediary services that many states now have.20

No issue was more bitterly contested by NCCUSL than the question of whether the members of birth and adoptive families should be prohibited from, allowed to, or required to know each other’s identities or maintain contact with each other. This issue polarizes the wide spectrum of views about adoption into two extremes. One extreme is that adoption reinscribes the “natural family” by creating a complete psychosocial as well as legal wall of separation between a child’s birth and adoptive families, which precludes nonconsensual communication between them. The opposing view is that, except in the narrowest of legal terms, adoption is “unnatural” and can never displace a child’s birthfamily. In this view, unless there is clear proof that an adoptee would be significantly harmed by contact with the birthfamily, openness and access to identifying information should be the norm. Because the UAA takes a middle path between these extremes, it potentially displeases those at either extreme."

Prior to her death in 2003, adoptee and adoptive mother Amy Silberberg was a "Quad-A" member, and a fierce advocate within the organization for protection of the interests of birth/first parents during the relinquishment process, as well as adult adoptee access to their heritage via original birth certificates and adoption records. The seeds that she and others planted in the organization have finally borne fruit.

The Academy also recognized the following two key societal shifts undergirding the resolution:

"The benefits of openness in adoption for all members of the adoption triad are recognized by adoption professionals and the adoption community; and

The societal norms which previously supported closed record laws have evolved and are no longer consistent with prioritizing the confidentiality of adoption records over the expressed need or desire of adopted persons to access their adoption records."

Change most often comes in stages, rather than by overnight revolution, according to veteran international political journalist and author Robert Kaplan:

"A lot of the changes are so gradual that they don't even qualify as news, or even as interesting: they're so mundane that we just take them for granted. But history shows that it's the mundane changes that are more important than the dramatic, 'newsworthy' events."

The AAARA's recommendation that adult adoptees have access to not just the original birth certificate, but also court records and -- get this -- adoption agency records that pertain to them, is not so much an overnight explosion as a reflection of what has been learned about good adoption policy over the past 25 - 30 years. Though the philosophical shift is tectonic in scope, many people I speak with today are surprised, even shocked, that so many adult adoptees still don't have such access. Culture has quietly preceded changes in the law. Not all states have experienced the same cultural shift at the same rate, which plays a significant role in why political opposition remains stronger in some states than others.

A word of caution here: much as hundreds of thousands of us would love to see what juicy/horrifying notes lie moldering in adoption agency files, the AAARA may have gone a bridge too far. I don't recommend trying to draft legislation that grants such access. One of the keys to brokering success in Colorado was an agreement to specifically exclude adoption agencies from the definition of "custodian of records" and therefore any requirement to release records. Collaboration on a mutually agreeable definition of "adoption records" [see C.R.S. Section 19-1-103(6.5)] way back in 1999 made Colorado one of three states, along with Hawaii and Oregon that now provides access to the broadest arrays of records. Note: all three states gained such broad access through incremental steps! (2)

Vital Records, Court and CDHS files generally contain the necessary documents and social/medical history we seek, while pre-and post-relinquishment counseling records, like psychiatric and medical records, are "nunya business" if you are an adoptee without a signed release from your parent. Further, even frivolous or unsuccessful lawsuits cost agencies money and they are understandably adamant about opposing anything that could expose them to potential legal defense costs. At some point, we must acknowledge that there are pieces of the past that, for the sake of political expediency, can and should be left locked in private agency file cabinets.

How influential will this resolution prove to be? Does it represent the final talking/tipping point toward a national landslide of one-shot, single-tier, no-compromise bills? Has the American adoption culture gradually moved far enough away from shame and secrecy toward truth and transparency that even former opponents can at least hold their noses and vote "Aye?" I certainly hope so. An amazing team of advocates saw it happen in my home state.

But as we've seen with similar prior declarations of human rights and endorsements from the Hague Convention, the UN Convention on the Rights of the Child, the National Association of Social Workers, the Child Welfare League of America, the American Academy of Pediatrics, the Presbyterian Church, the Episcopal Church, and numerous other influential organizations, in a society governed by rule of law, it is those with the power of legislative votes and court room gavels -- and those who are able to persuade them -- who will make the ultimate difference.

(1) Hollinger, J. "The Uniform Adoption Act" in The Future of Children (Winter 1995). 205-211.

(2) Colorado activists promoted various single-tier, unrestricted access bills that resulted in a mutual consent registry in 1983; a Confidential Intermediary Program in 1989; a prospective access bill with a birth parent nondisclosure provision and retrospective access by mutual consent or if the sought party was deceased in 1999; a 2009 Court of Appeals ruling granted adult adoptees access to records for 1951-1967 adoptions; and finally unrestricted access for all time periods in 2014-2015. Oregon's Measure 58 (1998) and Does v. State of Oregon (1999) restored access to original birth certificates in 1998, and provisions for expanded records access were included in a larger adoption bill in 2013. Hawaii passed a prospective access law in 1990 with a birth parent non-disclosure option, but pre-1991 adoptees were referred to a Confidential Intermediary Program. In 2016, Hawaii passed unrestricted, single-tier records access legislation.

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