"THE IDEA OF ADOPTION:
AN INQUIRY INTO THE HISTORY OF ADULT ADOPTEE ACCESS TO BIRTH RECORDS" By
Elizabeth J. Samuels,
Rutgers Law Review #367, 2001, 59 pages
(The following Conclusion is taken from pages 24-26 of the online copy that can
be found at:
http://www.americanadoptioncongress.org/legislation.htm)
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V. CONCLUSION
In sum, adoption law did not proceed in a simple, single step from a period in which court and birth records were closed to the public to a period in which the records were permanently closed to all of the parties. Instead, a more complete and accurate history of the law reveals interim periods, lengthy ones in many states, in which court records were closed to all, while birth records, as recommended by social service and legal authorities, were closed to everyone except the adult adoptees whose births they registered. 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 the children. This rationale was ubiquitous into the 1960s, and it is only later that an additional rationale achieves widespread currency: the rationale of protecting birth parents' lifelong privacy by prohibiting adult adoptees' access to birth records.
The observation that "law is culture" [FN431] is nowhere more apt than in this history of adoption law. The earliest laws prohibiting adult adoptees' access to birth records reflected not an instrumental goal of protecting birth parents from discovery by adult adoptees but instead *435 a social understanding of adoption as a perfect and complete substitute for creating a family by childbirth. As a widespread legal regime of partial secrecy developed--with court records sealed and birth records closed to all except adult adoptees--negative social meanings became attached to adult adoptee interest in birth families, and the understanding became firmly established that lifelong secrecy was an essential feature of adoptions in which the birth and adoptive parents did not know one another. The potency of this understanding was apparent from the 1960s onward, when it was increasingly threatened by radical social change. The understanding itself and the social meanings associated with it were increasingly discounted and were directly challenged by the individual actions and group advocacy of adoptees and birth parents. At the same time, in defensive constructions of the understanding and meanings, adoptees' interest in birth families came to be seen as being in conflict with birth parents' right to or guarantee of lifelong anonymity, and a substantial minority of states moved to extinguish adult adoptees' legal right to access birth records.
It is no wonder that to many adoptees and birth
parents the law has seemed painfully incongruent with experience. Those adoptees
who have sought and been unable to obtain identifying information, either
through a variety of private channels or through public registries, have felt
acutely the stern social opprobrium of sealed birth records laws. Birth parents
who have supported adoptees' opposition to closed records have felt,
understandably in light of the history recounted here, that lifelong anonymity
was a harsh consequence of their circumstances rather than a benevolently
bestowed protection. The pain caused by having one's deepest feelings met with
official censure is conveyed by open records advocates' quotation of a florid
but fervent statement by a government authority. In an unpublished trial court
decision reversed by the South Carolina Supreme Court, the judge wrote:
The law must be constant with life. It cannot and should not ignore broad
historical currents of history. Mankind is possessed of no greater urge than to
try to understand the age-old questions: "Who am I?" "Why am I?" Even now the
sands and ashes of the continents are being shifted where we made our first
steps as man. Religions of mankind often include ancestor worship in one way or
another. For many, the future is blind without a sight of the past. Those
emotions and anxieties that generate our thirst to know the past are not
superficial and whimsical. They are real and they are "good cause" under the law
of man and God. [FN432]
Although the movement of the states toward greater openness *436 has been slow and cautious, it has been nationwide and its pace has been accelerating sharply in recent years. [FN433] The numerous passive and active registries are being supplemented or supplanted by the growing number of states opening all records, re-opening records not closed at their inception, opening records prospectively, or opening all or some records subject to disclosure vetoes by birth parents. These changes both reflect and foster the difficult process of deconstructing lifelong secrecy. It may be expected that one day the number of states opening birth records will reach a critical "tipping point," [FN434] a point after which a majority of states will reject lifelong secrecy as expeditiously as they once embraced it.
Footnotes:
[FN431]. Geoffrey P. Miller, Circumcision: A Cultural-Legal Analysis, N.Y.U. PUB. L. & LEGAL THEORY (1999), available at http://www.ssrn.com. The kind of analysis Professor Miller performed could provide another productive way to examine the history of birth records access. He examined how the legal and cultural meaning of circumcision has changed from the late nineteenth century through the present. He used a set of polarities around which our culture's concept of the good is organized: purity and pollution, health and harm, self and others, natural and unnatural, beauty and deformity, gender-appropriate and gender-inappropriate, order and chaos, good and bad, and true and false.
[FN432]. Bradey v. Children's Bureau, S.C. Ct. Com. Pl., Apr. 9, 1979, quoted in
Harrington, supra note 262, at 38.
[FN433]. The trend toward more open birth records represented by the laws
described and cited in this Article is not negated by a recent rash of "safe
haven" or "Baby Moses" laws, designed to address the small number of cases
nationwide in which newborn babies are abandoned and often die as a result.
These laws typically provide for a parent of a newborn to leave the child
anonymously at designated locations. As of the fall of 2000, fourteen states had
passed such laws and approximately twelve others had considered doing so. These
laws have been criticized on the ground that the children will never be able to
learn the identity of their parents or information about their medical
histories. See Michael S. Raum & Jeffrey L. Skaare, Encouraging Abandonment: The
Trend Towards Allowing Parents to Drop Off Unwanted Newborns, 76 N.D. L. REV.
511 (2000); Jacqueline L. Salmon, For Unwanted Babies, a Safety Net; More States
Offer "Havens" to Deter Abandonment, but Critics Abound, WASH. POST, Oct. 20,
2000, at A1.
[FN434]. See MALCOLM GLADWELL, THE TIPPING POINT: HOW LITTLE THINGS CAN MAKE A
BIG DIFFERENCE (2000) (analyzing the spread of social phenomena from a
mathematical perspective).
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