Secrecy Continued...

by Martin Brandfon, J.D.
October 1998

How far have we come since 1935 when access to original birth certificates of adoptees first became restricted in California? The short answer is: not very far at all! In some ways access has even been made more difficult.

Janine Baer is correct that the social and political climate of the 1930's made it possible for adoption and child welfare agencies to easily pass the "closed records" legislation which still remains intact to this day. With the support of a few influential adoptive parents (some of whom were also legislators) and literally no opposition, these laws seemed to make good sense at the time.

However, the legislative purpose of the laws was never aimed at protecting the confidentiality of birth parents, as the present-day opponents to openness would contend. Our current laws, Family Code Section 9200 (which pertains to adoption case court files) and Health and Safety Code Section 102705 (which relates to birth certificates) evolved from the same exact laws of 1927 and 1935 respectively, which were designed to protect the integrity of the adoptive family by preventing access to these records by outside third parties to the adoption. They were not originally intended to limit access by any of the "parties to the action," but that was soon changed.

Amending adoptees' birth certificates, by replacing the names of the birth parents with the names of the adoptive parents after the adoption is ordered final by the court, was deemed necessary to prevent knowledge about the adoption after the court records were closed to everyone, except by order of the court. The standards necessary to obtain such a court order are very difficult for most adult adoptees: 1) for court records - "exceptional circumstances and for good cause approaching the necessitous;" 2) for birth certificates - "good and compelling cause shown..." and "to assist in establishing a legal right." Mere curiosity and claims of freedom to personal information have never been enough to establish "good cause."

Judges do have the discretion to grant these orders and in some counties at various times they have been routinely granted. Thus, there is wide disparity and unequal treatment of adoptees who file petitions for access to either the adoption court records or their original birth certificates. Unfortunately, there is also a difference in the amount of information that adoptive parents and adoptees will have and be able to obtain about the birth parents depending upon whether or not theirs was an agency or independent adoption (cf. "private" or "open"). This set of circumstance is totally beyond the adoptee's control and is arguably a violation of equal protection under the law.

One area where progress has been made occurred in 1984 with broader requirements for the collection and distribution of health and medical information between birth parents, adoption agencies, adoptive parents, and adoptees. Disclosure is given and made but only with non-identifying information.

In 1984 California also passed what amounts to a "modified,reverse waiver" bill which, like all adoption law, is not retroactive in nature. Since then, birth parents who place children for adoption may consent in advance to future disclosure of their names and identity if they check off a box on their consent form for this purpose. If the adult adoptee files a request for information, and if their birth parent (usually just the birth mother) was amenable to future contact at the time of adoption, they will be able to obtain the identity of their birth parent. The first adoptees who might have reunions due to this statute will be 21 years of age in the year 2005. (That doesn't sound too far away now!)

There was no immediate gain for adult adoptees by the amendments of 1984. The only change for us was the additional passage of a mutual consent, registry-type system at the agency or state level. If both the adult adoptee and the birth parent voluntarily sign and file their "Waivers of Confidentiality" then their identities will be released. Reportedly, only very few reunions have resulted from the use of waivers. Unfortunately, this fact has been used as evidence that adoptees and birth parents do not want to search! (Send in your waiver today!) If only one waiver is in the file the agency or State Dept. of Social Services cannot solicit the other consent. Many adoptees and birth parents are not even aware of this system but it is the present status quo for most California adoptions.

An extension of the above waiver system is the so-called "sibling registry" designed to reunite siblings who have been separated by adoption. The only hitch is that both siblings need to be at least 21 years old and at least one of them must be aware of the other's existence.

Because of much media attention and publicity surrounding search and reunion, a large majority of the public is unaware that in almost all of our states, including California, access to adoption and birth records is still kept secret, even from those directly involved and affected by the process.

In 1990, a bill for unrestricted free access to birth and adoption records for adult adoptees (and birth parents of adoptees) was introduced in the State Assembly but failed to make it out of committee without amendments which would have defeated its purpose. There is no new legislation presently pending in California which would affect a change in the above-described laws.

It has been thought and felt that the modern trend has been towards more openness in adoption practice and legislation. In reality, many adoption reform groups have lobbied and struggled for positive change in numerous states without success. This is why recent successful legislation in Tennessee has given us some hope for the future. We are also watching carefully to see what happens with the Oregon initiative on the ballot this November!

In 1980, the Model State Adoption Act held out the hope that there might be an advance in adoptees' rights and freedom. It was soundly defeated. There is now the threat that some states considering the revision of their adoption laws will ratify the Uniform Adoption Act of 1996 either in whole or part. Within this Act, the statutes which pertain to access to birth and adoption information for adoptees and birth parents are, I am sad to report, highly regressive and repressive. It also contains provisions for the criminalization of adoption search and search consultants!

I believe that it is important for us to know how and why adoption laws have been promulgated in the past in order for us to design a strategy that will result in positive change for the future. The above is intended only as an overview to begin discussion and thought; there are many more details and nuances to the statutes and their history which merit further consideration.

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