Birthright Legislation Q&A

If enacted in New Jersey, the Adoptee Birthright Bill will make an uncertified copy of an adopted person’s birth certificate available to certain adults who can establish their identity as the adopted person himself/herself, a direct descendant, a sibling, a spouse, an adoptive parent, a legal guardian or other legal representative, or a government agency for official purposes, but not to the public at large.  This will allow adoptees the same access to original birth information that non-adopted persons have.  Birth certificates, regardless of the person’s adoption status, are never considered public documents.  The State Registrar is always required to authenticate the identity of any person who requests a copy of a birth certificate.  Also, birth parents will for the first time be given a reliable means of expressing their own wishes in advance about being contacted.  (See information about the contact preference form, below.) 

The real issue addressed by this legislation is a question of rights – not contact between adults. Many adopted persons have been making contact with birth parents for generations, even with a closed records system. This legislation will not change that fact.  The legislation will, however, put an end to the outdated and discriminatory system of violating the right of New Jersey’s adult adoptees to have a copy of their own birth certificate.  Every citizen has the right to be treated equally under the law.

No.  The laws of the state of New Jersey have never guaranteed a right of lifelong anonymity to birth parents.  Neither the U.S. Constitution nor the N.J. statute defines privacy as a right of a parent to remain unknown to their offspring.  (See N.J. Statutes 26:8-40 and 9:3-52)

Four courts have upheld access legislation, noting that birth parents’ right to privacy does not supersede the right of adopted adults to access their own private information.  Further, adoptee’s access to birth records does not violate birth parents’ right to privacy.

The U.S. Court of Appeals for the 6th Circuit noted, “the Constitution does not encompass a general right to nondisclosure of private information.”

The Tennessee Supreme Court concluded, “that retrospective application of legislation allowing disclosure of adoption records to adopted persons…does not impair the vested rights of birth parents…nor does it violate the right to privacy…”

The Oregon Circuit Court and the Oregon Court of Appeals stated, “the Oregon legislature…did not create a contract with birth mothers to guarantee them that their identities would not be revealed to their adopted children without their consent.”

In 2000, Alabama restored to adult adoptees unrestricted access to their original birth certificates.  That same year, Oregon upheld access legislation and provided a contact preference option.  In 2004, New Hampshire passed similar legislation, which became effective January 1, 2005, and Maine’s access legislation became effective January 1, 2009

Apparently some did, although they should have known better.  Any promises of anonymity made to birth parents were verbal in nature and not given on a consistent basis.  The relinquishment documents have never contained any statement concerning birth parent anonymity.  Such documents stated that the birth parent might never reclaim her child or attempt to locate the child or contact the family.  The law never mentioned anonymity for birth parents. Many agencies and attorneys revealed the child’s/birth parent’s name to the adoptive parents at the time of adoption, and often the birth parent’s name was left on the adoption decree given to adoptive parents.  Adoptees often were given this information by their parents. 

In a 1994-95 survey of 1,274 adoptive parents in 743 adoptive families, the New York State Citizens Coalition for Children found that “approximately 40% of adopted children knew the name of their birth mother, and 23% knew the name of their birth father.”  The US Department of Health and Human Services recently published Adoption USA: A Chartbook Based on the 2007 National Survey of Adoptive Parents.  The findings represent children under age 18 who were adopted and living with neither biological parent.  “Over two-thirds of privately adopted U.S. children (68 percent) have had contact with their birth families following the adoption,” they found.  (Source:  National Center for Health Statistics)

Birth parents have no “constitutional right to anonymity.”  Birth parents do not sign a contract guaranteeing them anonymity or a right to privacy.  There can be no right, morally or constitutionally, to conceal the fact of parentage from one’s own child.  If there were such a right, how could paternity suits be allowed?  In fact, the law has recognized paternity suits for centuries.  Why does the law give relinquishing birth mothers the right to hide from their children, but withhold that right from fathers who chose not to parent?

No.  Historically, adoption records in this country were closed primarily to protect the adopted child and his new family from public scrutiny and from interference or harassment by birth parents – not to protect birth parents from discovery by their adult offspring. The sealing of the original birth certificate occurs only upon finalization of adoption.  If a child placed for adoption is never legally adopted, as sometimes happens, the original birth certificate is never sealed.  Clearly, the intent of sealing the original birth certificate was not to create a right for birth parents to keep their identity secret from their own offspring.

In New Jersey, specifically, the adoption records were first sealed when Assembly Bill 188 was enacted into law on November 19, 1940.  Fortunately, as is often the case with new legislation, the bill itself was accompanied by a statement explaining the underlying purpose of the Legislature in enacting it.  Assembly Bill 188, and its accompanying sponsor statement, is preserved on microfilm in the N.J. State Library in Trenton.  To see a photocopy of the actual 1940 statement, click here.  As you can see, the records were sealed to protect the adoptive parents and the child against the birth parents (or anyone else) who might use the information in the records to embarrass or harm them.  The N.J. adoption law was further amended in 1953.  In N.J.S. 9:3-17, the Legislature again stated that its policy was to protect the child and the birth parents against interference from birth parents.  For a copy of that law, click here.  The notion that sealing of records in New Jersey was ever intended to “protect” birth parents from being identified by their adult children is nonsense. 

Under current law, birth parents have no protection from unwanted contact.  The current law provides for release of confidential adoption files and identities of birth parents to adult adopted persons at the discretion of the courts.  As such, there always have been and continue to be mechanisms by which this information is released without birth parent consent.

For the few who may not want to be found, the proposed bill will provide all birth parents (past and future) the opportunity to make their wishes known regarding contact.  For the first time, birth parents will have a voice regarding contact with their son or daughter.

N.J. DYFS Adoption Registry statistics show that 95% of birth parents welcome contact.  In countries and states where access is available, a majority of birth parents welcome reunion.  A study from the U.K. (Triseliotis, Feast and Kyle) reports findings that an overwhelming majority (94%) of non-searching birth mothers were very pleased or pleased that the adopted adult had contacted them.

A birth parent may at any time fill out, and give to the State Registrar, a form indicating whether they would prefer direct contact, contact through an intermediary whom they may name, or no contact.  They may change their preference at any time.  They will also be required to simultaneously submit a completed family history form, which will include medical, cultural and social history information.

The State Registrar will prepare a statement recommending that the person requesting the certificate contact the approved agency or the intermediary who facilitated the adoption before making contact, as well as preparing other information regarding counseling resources and the use of an intermediary to make contact.  These will be prepared in advance and be available in appropriate offices and online.

When an adult adoptee or other authorized adult requests a copy of the adoptee’s original birth certificate, the State Registrar will provide a copy of the completed contact preference form and the family history form, if on file, along with the birth certificate.  The Registrar will also provide a copy of the other prepared information concerning contact and resources, described above.

We believe adult adoptees will honor a request for no contact, thus avoiding more rejection from their birth parent.  In the unlikely event that a reluctant birth parent is contacted, they may simply say “no,” as any other adult who hears from someone with whom they don’t want contact.

According to the Evan B. Donaldson Institute,  “there has been no evidence that the lives of birth mothers have been damaged as a result of the release of information to the children (now adults) whom they relinquished for adoption.”

In Does Opening Adoption Records Have an Adverse Social Impact?  Some Lessons from the U.S., Great Britain and Australia, 1953-2007, E. Wayne Carp, PhD found, “…there exists a vast gap, especially between the articulated fear by birth parents and adopted adults that their privacy would be invaded and their families disrupted if adopted adults were given the right to access their birth records and the reality that few or no offenses were committed.”

The bill also provides for access by a direct descendent, a sibling, a spouse, an adoptive parent, a legal guardian or other legal representative, or a government agency for official purposes.  Before releasing a copy, the State Registrar is required to authenticate their identity and relationship to the adopted person.  All must be 18 years of age or older.  This treats adopted people the same as non-adopted people.

It is important to note that pending legislation does not make adopted persons’ records open to public inspection.  Rather, it allows a copy of the original birth certificate to the adopted adult himself/herself and those others who are close family members and/or most likely to have a legitimate need for it, just like for people who have not been adopted.  The legislation supports the right of all persons to freedom from general public scrutiny of their private information.

No.  Birth information and contact with the birth family does not replace one’s relationship with adoptive parents, but rather leads to a more complete identity for the adoptee.  Many therapists believe the process of finding the past is so helpful to the adoptee that it strengthens their relationships with their adoptive family.

Research from the U.K. “demonstrated that the loyalty and love adopted people felt towards their adoptive parents and family did not lessen as a result of the search and reunion process. Indeed in some cases adopted people reported that it enhanced the relationship as the search and reunion had helped them identify all the positive aspects of the relationship they had with their adoptive parents.”  (See Julia Feast, Policy, Research & Development Consultant, British Association for Adoption & Fostering)

No.  Kansas, which always allowed access to adult adoptees, consistently has far lower abortion rates than the nation as a whole.  From 2000–2005, the U.S. abortion rate declined 9%.  Access legislation went into effect in Alabama and Oregon in 2000.  Since that time their abortion rates declined 16% and 25%, respectively.  (Source: Guttmacher Institute)

Furthermore, Oregon Right to Life chose not to oppose adoption reform because they were satisfied that the abortion rate would not rise with the passage of the measure.  This has proven to be true.

New Jersey abortion rates have consistently been above the national average.  If Alabama and Oregon’s trends following access legislation correlate with New Jersey, abortions will decrease following passage of such legislation.

Abortion is a decision not to be pregnant, while placing a child for adoption is a decision not to parent.  When a woman is considering an abortion, accessible adoption records are the last thing on her mind.

No.  Since 1987, the number of adoptions annually has remained relatively constant, ranging from 118,000 to 127,000.  (Source:  Child Welfare Information Gateway)

Alaska, a state with full access, has the highest adoption rate per capita of children under 18 (3.9%) compared with the national average of 2.5%.  In Kansas, also a state with full access, the adoption rate is 3.0%.  New Jersey is 2.3%.  (Source:  2000 Census)

Today, access to information – rather than secrecy – influences birth parents to choose adoption. Adoptions that permit information sharing have risen from 36% in 1987 to 80% today.  (Source: Evan B. Donaldson Adoption Institute)

Research conducted by Henney McRoy, Ayers-Lopez and Grotevant in a longitudinal study by the Universities of Minnesota and Texas could find no adoption agencies doing confidential adoptions among the agencies they researched.  This shift in practice has occurred primarily because of birth parent demand for some degree of openness that ranges from mediated open to fully disclosed.  The two Minnesota agencies that lead the state in the number of infant adoption placements do only “fully disclosed” adoptions in their infant programs while other Minnesota agencies are moving toward more disclosure.

In Great Britain and New Zealand, more adoptions took place after records were opened than before.  Studies indicate that the rate of adoption is not adversely affected when original birth records are available to adults.

Ever since Alex Haley wrote Roots, genealogy has captured the fancy of the American culture. The desire to know the facts of one’s history is an attempt to understand the age-old questions: Who am I? Why am I?

In 2004, the U.S. Surgeon General launched a Family History Initiative and declared Thanksgiving Day to be annual National Family History Day.  He encouraged Americans to use their family gatherings as a time to collect important family health-history information that can benefit all family members.

Current medical information, often missing in adoption, can be a life-threatening omission. Older adoptees are particularly vulnerable since over 3,000 known genetically inherited diseases exist, many of which emerge with age.

Renown adoption researcher and author, David Brodzinsky, PhD, characterizes the interest in one’s origins as “…a health extension of the universal search for self that we all engage in… adoptees and non-adoptees alike…The need to know about these individuals, and perhaps meet them, is not only normal, but for many adoptees essential for their emotional well-being.”

Mental health providers confirm the importance of accurate and truthful biological/genetic information for adopted persons to form healthy attachments and a strong sense of self, which is key to emotional maturity.

Under the sealed records laws, medical information available to adopted persons is as old as they are because the information was taken before they were born.  If the Adoptee Birthright Bill is enacted, current medical information will be included in the family history forms and subsequent updates.  Birth parents who indicate a preference for no contact by the adopted person (on their contact preference form) will be requested by the State Registrar to update their family history information every 10 years until the birth parent reaches the age of 40 and every five years thereafter.  When an adult adoptee or other authorized person requests a copy of the original birth certificate, the family history information provided by the birth parent will be provided to them along with the birth certificate.  In any event, it will be possible for birth parents to be contacted directly or through intermediaries and asked about current family medical issues.

The State Registrar estimates that over 150,000 adoption records have been sealed in New Jersey.

If this legislation was made prospective, it would not take effect for 18 years.  It would only help persons born and adopted after the bill is enacted.  Living adopted persons born in New Jersey up to the date of the bill’s enactment would be prevented from receiving their vital information. What other legislation is being proposed to take effect 18 years from now?

The mutual consent registry concept requires both parties to separately submit identical information so they can be matched up.  Deceased people cannot register.  Aged, ill or institutionalized people probably cannot register.  A person who feels mistreated and distrustful of the “system” is not going to register.  Birth parents who signed the standard relinquishment form giving up all rights and promising not to attempt to contact their child may not understand that they are even permitted to register.  Some adoptees have little desire to identify their birth parents until their interest is triggered by life events such as their own marriage, the birth of their own child, illness of themselves or their child, etc.  Other adoptees never have any interest at all.  A mutual consent registry cannot work if only one party registers.

Registries established within the reform movement or on the internet have had a small measure of success in reuniting those separated by adoption.  However, state mutual consent voluntary registries have a median success rate of 2%.  (Source:  American Adoption Congress – data collected 1993, 1996 and 1998). 

For a registry to work, the date and place of birth must be accurate.  In New Jersey, adoptive parents have had the option of asking the adoption court to change the birthplace on the amended birth certificate so it looks like the child was born where the adoptive parents reside.  A birth parent has no way of knowing if the place of birth has been falsified.  A registry for those adoptees is useless.  If enacted, the Adoptee Birthright Bill will abolish this practice.

Mutual consent voluntary registries without accompanying right-to-know legislation are ineffective and obstructive.  Non-adopted people do  not have to join a registry to obtain their information or to learn who their relatives are.

In 1938, records relating to adoption were sealed from public scrutiny.  In 1940, New Jersey passed legislation to “make secret all proceedings relating to adoption.”  The reasons cited were:  “…to keep the information from the prying eyes of the public, to protect adoptees and adoptive parents from embarrassment should the birth parent ‘turn up at some future date and possibly even to do harm,’ and to eliminate the possibility of illegal use of the information.” There was no mention about promising life-long confidentiality to birth parents.

In 1953, New Jersey prefaced the revised adoption statute with a public policy statement desiring to “protect the child from…interference by his natural parents…, to protect the natural parents from hurried or abrupt decisions to give up the child; and to protect the adopting parents…from later disturbance of their relationships to the child by the natural parents.”

Again, there was no mention about promising life-long confidentiality to birth parents.  No such agreement has ever been produced by anyone, anywhere, even when requested by a court of law.  The N.J. statute has long allowed adoptive parents the right to keep the child’s birth name on the amended birth certificate.

The courts of N.J. have always had the authority to open adoption court records “for good cause” and to unseal original birth certificates without notice to – or participation by – birth parents.  “Good cause” has never been defined.

N.J.SA 26:8-40.1 does not say anything about guaranteeing birth parents’ confidentiality. 

The Uniform Adoption Act, published in 1953, provided that court records be sealed and withheld from inspection except by court order. Original birth records, in conformance with the provisions of the Uniform Vital Statistics Act of 1942, were to be sealed and opened only “upon the demand of the adopted person, if of legal age, or by an order of the court.”  However, the vital statistics act’s provision for adult adoptee access was deleted without explanatory comment in the 1959 successor to the act…issued by the U.S. Public Health Service….  The 1969 revision of the Uniform Adoption Act omitted altogether the earlier adoption act’s provision regarding sealing birth records, also without explanatory comment.¹ (emphasis added).

So the idea of “life-long anonymity” or “right to secrecy” became verbalized only in the 60’s. “Laws closing adoption records to the parties were enacted not as a shield to protect birth parents from their adult children’s ever learning their identity, but as a sword to prevent them from interfering with the adoptive families raising their children.”²  (emphasis added)  The current laws provide for release of confidential adoption files and identities of birth parents to adult adopted persons at the discretion of the courts.  As such, there always have been and continue to be mechanisms by which this information is released without birth parent consent. Most birth parents, then and now, want privacy from the general public and from snoops of all kinds.  That is true privacy, and this legislation would do nothing to infringe upon it.   Lastly, sealing of the original birth certificate occurs only upon finalization of adoption.  If a child is placed for adoption and is never legally adopted, but languishes in the foster care system, the original birth certificate is never sealed.  Clearly, the intent of sealing the original birth certificate is not to ensure birth parent confidentiality.

1 Elizabeth J. Samuels, JD, The Strange History of Adult Adoptee Access to Original Birth Records

We are not mad at birth parents.  Without them we would not exist.  Nor are we mad at adoptive parents or adoptees.  In fact, NJCARE consists mostly of birth parents, adoptive parents and adoptees.  We are annoyed that institutional opponents have for more than 30 years twisted, warped, ignored, lied about, misinterpreted and denied the plain purpose of a law that was intended to benefit and protect newly formed adoptive families.  And they have been getting away with it for years.  They have, successfully so far, created a make-believe special right for birth parents to permanently hide their identity from their own children.  Then they have insisted, and continue to insist, that this so-called right be enforced against the will of the vast majority of birth parents who would welcome contact from their relinquished children.  The NJ Catholic Conference of Bishops, the NJ Bar Association, the NJ ACLU, and NJ Right-to-Life are far more committed to maintaining birth parent anonymity than birth parents themselves.

The history of adoption has not been all sweetness and light.  Historically, adoption has had a dark underbelly including kidnapping, buying and selling babies, forced and forged  relinquishments and conspiracy amongst people otherwise appearing to be respectable–people such as physicians, lawyers, clergy and others.  Numerous books and articles have addressed this history.   A good example can be found in a recent article by Mirah Riben which appeared in Dissident Voice, on June 18, 2013 called The Last – and Least Recognized – Americans Denied Equal Rights. Dare we mention widespread press reports of decades of profitable baby exportation from countries such as Ireland with the connivance of church and government officials?  A healthy baby has a significant cash value.  Given this history, we at NJCARE cannot help but question the motives of institutional opponents who fight so hard to keep secrets.

We argue so insistently against so-called birth parent privacy rights, because we know that they are a sham which others, not birth parents themselves, are using to hide the truth.