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 They've
become a standard of news features, magazine articles and
movie plots: the stories of men and women, adopted at birth,
who decide to seek out their biological parents. The urge
for reunion seems so elemental that a plethora of organizations
has sprung up to assist adoptees in their search. Today, the
Internet is replete with Web sites offering registries to
help adoptees and their birth families find each other by
matching up information such as dates and places of birth.
But
many adoptees "in search" are not able to find information
through these organizations or official state registry systems.
Their only hope is access to original records, such as their
unamended birth certificates. And this, unfortunately, is
a source of information that remains largely closed to them,
even though, as studies now show, most birth parents are open
to being found.
In
fact, most birth parents may never have objected. The general
public assumption seems to be that, from the beginning, adoption
records were closed in large part to protect the birth mother's
identity. But that isn't the case at all -- as I discovered
when I undertook to research a question arising from my own
family's experience. The child my sister had surrendered for
adoption was able to locate us in the late 1980s because my
sister had given birth in England, where records have been
open to adult adoptees since 1975.
As
I saw what profound satisfaction mother and daughter experienced
getting to know each other, I began to wonder why almost every
U.S. state had decided to close records to the adult children
of adoption in the first place. What I found surprised me.
Legal
adoption in America only came into being starting in the second
half of the 19th century, and at first all adoption records
were open to the public. When they began to be closed, it
was only to the general public, and the intent was to protect
adoptees from public scrutiny of the circumstances of their
birth. Later, as states began to close records to the parties
themselves, they did so not to provide lifelong anonymity
for birth mothers, but the other way around -- to protect
adoptive families from possible interference or harassment
by birth parents.
One
of the most prominent actors in the development of adoption
law in the mid-20th century was the Children's Bureau, an
arm first of the U.S. Department of Labor and later of the
Department of Health, Education and Welfare. In the 1940s
and '50s, the bureau advised that birth and adopters who did
not know one another should not have access to information
about each other. But it also said that original birth certificates
should be available to adult adoptees. As one of the bureau's
consultants put it in 1946, "every person has a right
to know who he is and who his people were."
In
the '40s and '50s, most state laws did permit adult adoptees
to view their birth records. But by 1960, 26 states were making
both original birth records and adoption court records available
only by court order. Twenty other states still made the birth
records available on demand, but over the following 30 years,
all those states but three -- Alaska, Kansas and South Dakota
-- closed records to adult adoptees.
Why
were states closing their records even before 1960, when the
reasons being advanced were all about protecting adoptive
families, and not birth parents? The historical record suggests
that birth mothers were in fact seeking a measure of confidentiality.
What the mothers wanted, however, was not to prevent the adoptive
parents and the children they had surrendered from discovering
their identities, but to prevent their families and communities
from learning of their situations. A powerful reason for the
earliest closings of birth records to adult adoptees may simply
have been that it was consistent with an emerging social idea
about adoption: that it was a perfect and complete substitute
for creating a family by childbirth, so the adopted child
had no other family and would never be interested in learning
about any other family.
Once
most states sealed records for everyone except adult adoptees
-- and many states foreclosed access even to them -- the record-sealing
laws themselves may have helped foster the notion that lifelong
secrecy is an essential feature of adoption. Adult adoptees
increasingly felt discouraged from seeking information about
their birth families, and those who did were viewed as maladjusted.
By the 1970s, legal comments and court opinions started to
talk about the reason for permanently sealed records in terms
of birth parents' rights to lifelong anonymity. And states
continued to pass laws foreclosing adult adoptees' access
to birth records.
Since
the adoptees' rights movements began in the 1970s, it has
encountered stiff opposition to its efforts to win legal access
to birth records. Only in the past six years have adoptees
won an unqualified right to view records in three states --
Tennessee, Oregon and Alabama. Also, Delaware joined Nebraska
in making records available if birth parents have not filed
an objection. Around the country, legislatures are considering
similar laws, but these are exceedingly limited gains for
a movement nearly 30 years old.
Recently,
celebrating Family History Month, Sen. Orrin G. Hatch encouraged
Americans to "find out more about where they came from"
because "researching ancestry is a very important component
of identity." As more state legislatures contemplate
giving adult adoptees the right to research their ancestry,
they should understand that once it was considered entirely
natural and desirable to let adoptees learn who their people
were.
Elizabeth Samuels is a professor at the University of
Baltimore School of Law.
© 2001 The Washington Post Company
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