Last month, the Tennessee Supreme Court upheld a law giving adoptees 21 and older access to their birth certificates and adoption records. In Oregon, a first-of-a kind ballot initiative guaranteeing the same right is bottled up in a state appeals court. Over the years, requests to open these records have spawned pitched battles involving adoptees, birth mothers wishing to remain anonymous and anti-abortion advocates who fear that open records laws will make more women choose abortion over adoption.
An adoptee, with the last name of East, started looking for her birth mother in 1987. It wasn’t until eight years later — the same day Tennessee Gov. Don Sundquist signed a law giving adoptees access to their original birth certificates — that East learned the name of her biological mother, whom she has since contacted.
Only two states — Alaska and Kansas — have passed laws giving adoptees 18 or over unencumbered access to birth certificates. In Tennessee, adults 21 and over can access all adoption records. Another 19 states allow for limited access, depending on the current age of the adoptee, the year a person was adopted or whether the birth parents consent. These include Hawaii, Minnesota and Virginia.
For years, the fight to open records for adoptees has triggered battles between adoptees and birth mothers who want to keep their identities confidential. Right-to-privacy activists, certain adoption agencies and anti-abortion advocates such as the Christian Coalition and Pat Robertson have also joined the fight, worried that open records laws will make more women choose abortion over adoption.
“Many more women will shy away from adoption and we will find more abandoned children,” said William Pierce, president of the National Council for Adoption, a group that opposes open records laws. “Birth mothers who cannot speak up for themselves call us crying, panicked, shocked, furious. They say ‘we were promised that this would be private,'” Pierce said.
Jane Nast, an adoptive parent and president of the American Adoption Congress, said there is no documentation to prove that women will opt for abortion if open records laws are passed.
“There is something about adoption that has a special stigma on it that has been carried over from the 30s and 40s to protect the (biological) parents,” said Nast, whose organization supports access to adoption records.
Although Tennessee’s law was passed in 1995, it was blocked a year later following a federal suit filed by two unidentified birth mothers, an adoptive couple and an adoption agency. They claimed the law unfairly changed the rules for mothers who believed they would remain anonymous when they gave up their children for adoption, and that by opening those records their constitutional right to privacy would be violated. Attorneys for the plaintiffs were employees of the American Center for Law and Justice, founded by Pat Robertson.
Last month, the Tennessee Supreme Court upheld the law, which grants adoptees 21 and older access to their birth certificates and adoption records, unless rape or incest was involved. The law contains a “contact veto,” giving birth mothers the option of blocking contact with the adoptee. Adoptees violating a contact veto could face criminal charges.
“Since this law has been in effect we have not had a single birth mom want a contact veto,” said Bob Tuke, a Nashville lawyer, and an adoptive parent who served on a state commission that helped to write the adoption records statute.
About 2,070 adult adoptees have requested access to their adoption records since July 1996, according to Tennessee’s Department of Children’s Services.
“I didn’t go looking for a family, I went looking for my roots,” said East, who has since been reunited with both of her biological parents.
East said her birth mother was standoffish when they first met, but her father, who now resides in Washington State and looks just like her, “wants to be ‘daddy.'”
“Finding a birth family answers the gnawing question that has always been there — why you were given up. That is a very comforting thing for an adoptee to know,” said Jane Nast, of the American Adoption Congress.
“You know what your medical history (is), what your nationality is, where you were born. There are a whole lot of things to know about your birth families’ current medical history.”
In Oregon, a court battle similar to Tennessee’s is underway. In a first-of-a kind ballot initiative, Oregon voters passed Measure 58 last November by 57 to 43 percent, which would allow an Oregon-born adoptee 21 or over to get a copy of their birth certificate on request. But, six anonymous birth mothers filed suit to block the new law on grounds it betrayed confidentiality and violated their right to privacy.
The law has been put on hold while the Oregon Court of Appeals considers the case. It plans to issue a ruling on the case, which was dismissed by a lower court, in January.
“Presented with a clear choice, the voters were behind us,” said Ron Morgan of Bastard Nation, a group of adopted people dedicated to opening birth records. Bastard Nation sponsored the Oregon initiative.
“Our civil rights are violated by sealed records laws, because all other people have access to their birth certificates,” Morgan said. The group is also planning a ballot initiative in Washington State.
In Delaware, an open records law went into effective in January that allows Delaware-born adoptees age 21 and older to apply for a copy of their original birth certificate. Massachusetts, Connecticut and New Jersey are also considering granting adoptees more access to birth and adoption information.
Montana made its open records law contingent on when the adoption took place. Birth records before July 1, 1967, are totally open, while those generated from July 1967 to Sept 30, 1997, can only be accessed with a court order. As is the case in Tennessee, biological parents in Montana can veto the access of records.
Most states have set up registries that allow adoptees and their birth parents to search for each other. But most of these registries are “passive,” meaning they work only if the adoptee and the birth parent both put their names in the registry.
Nast is no fan of registries. “They are not fair — they are like Russian roulette. You have to know about them and (both parties) have to be alive,” she said.
New Jersey, North Carolina and the District of Columbia currently have no provisions for accessing records by law or through a registry.
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