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


Making confidential records available to the public. This red herring was tossed out by a Maryland senator in an effort to kill SB 331. It, along with other tropes and emotional ploys, worked. None of these bills seek to "throw open to the public" adoption records or original birth certificates. Adoption records are not subject to Sunshine Laws. There is a significant and obvious difference between confidentiality from the general public and anonymity from one's own offspring.

Medical history. Over 6000 genetically-linked diseases have been identified, and one would hope that the persons who gave us life would also be willing to provide important, potentially life-saving information. But parents lie to their children about their health all the time, and HIPAA laws protect them in doing so. No state can force a parent to anonymously update their medical history in a state-run registry as an alternative to disclosing their name to their child. (Note, the right to withhold one's medical information is legitimate; as noted above, the desire to withhold one's name from their child, though a legitimate interest, is not a fundamental right.)


Search and reunion outcomes. Some advocates try to make the claim that records access has nothing to do with searching for birth family. While in some cases, an adoptee seeking records may have already found their blood relatives, legislators see through this claim and label the advocate as disingenuous. Though statistics point to the fact that somewhere between 75-90% of birth parents are open to contact from their adult offspring, that leaves somewhere between 10-25% who are not. Happy reunion stories do not offset some legislators' conviction that it is their job to protect the voiceless minority. What such legislators overlook is the fact that, as one birth/first mom I know puts it, "I'm not a scared, powerless 17-year-old girl any more. I am an adult. I can speak for myself, and define what kind of relationship I do or do not want."


Dueling disasters (aka the "If just one life is ruined - or saved..." argument). Anecdotal "what-ifs" never offer a sound basis from which to formulate policy, but it happens far too often. Laws cannot guarantee that someone will avoid pain or chance, or consequences of their own or others' decisions. Never mind that adoptees have died waiting for their court appeals to receive a ruling. Never mind that adoptees have unknowingly dated or even married a half sibling.


In a 2014 meeting with stakeholders about Colorado SB 14-051, one adoption agency Executive Director said, "Unless you can guarantee me that not one birth mother's life will be ruined by this, I can't support this bill." My reply was, "Then by that same reasoning, you must close your agency until you can guarantee me that not one child you place for adoption will be abused, molested, endure the divorce of their adoptive parents, suffer from addiction, end up in a juvenile psychiatric facility, prison, or commit suicide because they don't know who they are and are unable to form healthy bonds with others." I confess that I still choke up writing this. The agency took a neutral position on the bill.


Competing fundamental rights. The Oregon Court of Appeals (linked above) ruled that, because a woman does not have a fundamental right to have her child adopted by someone else, she cannot have a correlative fundamental right to have her child adopted under circumstances that guarantee her anonymity from her own offspring, even if she does not desire future contact.


I firmly believe that every adoptee should be able know from where and whom we came, and support the UN Convention on the Rights of the Child. I have spent 25 years working toward that goal, with the help and guidance of a great team of advocates and attorneys. However, making the leap from that concept to establishing records access as as civil right in the United States has proven problematic. As I understand it, rights are not self-evident, there are different kinds of rights, and there are three ways to create a civil right in the United States:

  1. Congress amends the Constitution. (Extremely unlikely on this issue.)

  2. The Supreme Court rules on a matter. (Federal courts have declined to consider the merits of Constitutional arguments and dismissed cases or abstained).

  3. Enough states band together to amend the Constitution. (This has never happened in the history of the US).

I have challenged leaders in the "all or nothing now (AONN)" camp to set forth a viable legal pathway by which records access could ever become a civil right, pointing out that if such an argument or pathway exists, why has no one created it in the past 25 years? The response has either been crickets or words to this effect: "You're not a lawyer and you are an enemy of adoptee rights." I have never claimed to be an attorney, but am/have been advised by some top-notch professionals, including a senior legislative drafter, the Public Policy Practice Group Chair of a national law firm, and a partner who specializes in appellate law at Denver's biggest law firm.


Face it, AONN. Records access as a civil rights issue (but not as a matter of policy and procedural rights) is dead, and it is long past time for you to stop giving people false hope. No matter how badly we want it to be true, how much we believe it should be true, there is no viable legal pathway to a Constitutional amendment or Supreme Court Ruling. Nothing would make me happier than to be proven wrong on this point, but if some secret strategy exists, waiting for the perfect moment to be rolled out, what are we waiting for? Babbling on about adoption critical theory is useless, in my opinion, but that's another blog topic in itself. What is the strategy, and when exactly will that moment come? If you cannot articulate answers to those questions, isn't it long past time to let it go?


WHAT THIS ISSUE IS ABOUT, ABSENT THE EMOTION


What produces healthier outcomes for everyone involved: policy rooted in Truth and Transparency or driven by Secrecy and Shame? The answer should be painfully obvious, but in the name of common sense:

  • A mother's innate desire is to know that her child is safe, well, and loved. This is why, as the stigma of single pregnancy has subsided along with relinquishment rates, the market has shifted increasingly toward open and kinship adoptions. Mothers I have met unanimously agree that closed adoption, in which they have no hope of knowing what became of their child, is the incentive toward abortion -- not fear of their name being disclosed to their own adult offspring. Even today, mothers, who recall being "promised" only that they would never see their baby again, still suffer from the devastating, shaming effects of being sent to maternity homes and coerced relinquishment in secret.

  • As far back as the 1940s, social workers and policy experts agreed that best practices in adoption should protect a woman from a hasty or coerced decision to relinquish; ensure (to the degree possible) a stable, loving home for the child; protect adoptive parents from adopting a child about whose background they know nothing; and minimize secretive corrupt practices and black/gray market profiteering. Though records from that era were gradually sealed from the public, most states continued to allow adult adoptees access to the original birth record for a time. In Colorado, for example, it was standard procedure for the adoptive parents to obtain a copy of the original birth certificate in order to obtain an adoption decree.

  • Today, most leading child welfare organizations have published position statements in favor of truth and transparency in adoption. Information in adoptive parents' hands means better, more effective parenting. Information in adult adoptees' hands means answers to life's core questions and freedom from the state-imposed stigma of being someone's "dirty little secret." And a mother's knowledge of what became of her child, even if she does not desire further contact, can bring her peace and closure, usually after processing some buried grief.

This issue is about how, not whether, adult adoptees should be able to access records.

Almost every state law offers a procedure by which records, including the original birth certificate, can be provided to an adult adoptee without permission of another family member. However, in many states, obtaining a court order is very difficult, and some courts have been known to elevate the statutory standard of "good cause" (which is typically not clearly defined) to "compelling need" on their own authority. One question I have posed to legislators goes something like this: "Genealogy is one of the most popular hobbies in the US, along with gardening and video games. Why is it normal and encouraged for everyone except adoptees? One challenge we face is that our adoptive family often does not include our ancestors. Imagine how you would feel if, in order to research your own genealogy as an adult, the law required a court order and/or the permission of one or both of your parents in order to do so?" We are simply talking about changing the process by which records can be obtained.

This issue is about adults, and states making a policy decision to streamline access for adult adoptees, upon proof of identification and payment of a reasonable fee, to certain vital records (excluding relinquishment counseling records, which are private to the mother) that pertain to themselves. Such access may or may not lead to a conversation or relationship between adults, who are already protected by the same laws as all other citizens.


It's that simple.


- Rich Uhrlaub, M.Ed.



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