Birthright Legislation Q&A
These are answers to frequently asked questions we received prior to the passing of the Birthright bill in 2014.
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 The legislation will, however, put an end to the outdated and discriminatory system of violating the right of New Jersey’s adult adoptees to have a copy of their own birth certificate.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.
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
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?
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.
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.
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.
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.”
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.
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)
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.
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.
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.
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 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
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.