The Definition of Insanity, or Bad Ways to Formulate Good Adoption Policy

In 1999, when Colorado advocates were struggling to pass a records access bill, state senator and Senate Judiciary Chair Dottie Wham (R-Denver), who was our bill sponsor and a highly respected icon at the Colorado capital, gave me a piece of advice. She said, "Rich, this issue is not about facts. It's about emotion."


Her insight stuck with me, and has shaped our approach to legislative change in Colorado. As evidenced in the defeat or amendment of several bills this session, the way in which advocates frame the issue at the outset can have a dramatic effect on the debate and ultimate outcome.


"I DONT CARE WHAT YOU SAY, IF JUST ONE LIFE IS RUINED...."

Much as adoptees love to rally around the idea that "these are my records, and I have an absolute right to see them," legislators live in a world dominated by the principle that it is their job to balance the interests of all their constituents. There have been a few exceptions, but an all-too-common reaction to adoptees' assertion of their absolute right to obtain "my" adoption records (though -- as one state attorney who supports our cause informed me -- said records are a creation of the state for purposes of the state) results in some well-intentioned legislator (who usually has a personal anecdote about a birth mother whose life would be ruined by disclosure of their name to their own child) asking, "What about birth parent privacy rights?"


Never mind that it is the adoption, not the relinquishment, that seals the original birth certificate.


Never mind that higher courts in Tennessee and Oregon settled the legal question following retrospective changes to laws in those states:


"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."


Once legislators become emotionally convinced that it is their duty to protect a terrified birth mother -- especially one of the miniscule, but undeniably significant number of mothers who relinquish after a date or stranger rape -- from the possibility of unwanted contact from a marauding, insensitive, selfish adoptee, the conversation is over.


Never mind that most adoptees were raised by hand-picked parents who instilled the basic human decency not to crash into your mother's life and ruin it, especially if our conception story involves one of our greatest fears.


Never mind that alleged "promises" made by adoption agencies or previous statutes were never legally or practically enforceable or guaranteed on any relinquishment document signed.


Never mind that new prospective laws implemented during the post-WWII "Baby Scoop Era" are being applied retroactively, in violation of the previous law's "promise" to adult adoptees that they would have access to their original birth certificate upon request and proof of identification.


Never mind that, unlike those whose lives are at risk because they are an international double agent or have testified against the mafia in court, having a baby in or out of wedlock is no reason to place someone into the equivalent of the Witness Protection Program.


As Senator Wham said over 20 years ago, emotion rules the issue. Therefore, our strategy must begin with neutralizing as much emotion -- including our own -- as possible.


At this point, no one should be surprised when their bill goes down in flames or is amended with some version of compromise (which, unfortunately may be necessary in certain cases on the way to the ultimate goal) as a result of this approach. Instead, we need to own the fact that it is often our own talking points that light the fuse for the explosion.


Image: Daniel Eledut


In hope of moving the conversation forward, and stopping ourselves from doing and saying the same thing over and over, hoping for a different result, I submit the following ideas for a new framework, which elevates examination of the issue to a policy level, has proven successful in Colorado, and is gaining positive response from legislators in other states.


WHAT THIS LEGISLATION IS NOT ABOUT