The arguments against open records haven't changed much in the past 20 years, which is both good and bad news. The good news is that if after 20 years the dedicated opposition hasn't found new reasons to keep records closed, then we can surmise that we knowwhat we will face when an open records bill Is being considered in a state legislature. The bad news is thar after 20 years we haven t managed to sufficiently deal with the arguments against open records. Triad members have failed to take this highly emotional issue and place it firmly in thepublic policy arena.
Open records is a civil rights issue put forth by a "minority class" of citizen; the adoptee. One of the problems with this descaption is that until recently, the adoptee in question was mainly white, middle class and educated-not what society typically envisions as a minority." As a result; it was easy for opponents of open records to brand searching adoptees as spoiled, middle class or merely curious individuals who were looking forsomething to occupy their time.
The arguments that the search and reunification movement have primarily used (until recently were easily discounted by legislators and opponents alike. The advocates of open adoption records explained that we needed to search to find our identity. The opposition replied "grow up". We explained that the lack of information about birth families was emotionally disturbing to many adoptees. The opposition stated that those who held this point of view were pathological and angry adoptees, a minority The movement talked about the positive effects of reunion, while the opposition brought forth an angry birth mother who claimed her life was ruined by a telephone call from her child. If we are to ever change public policy and provide equality to adopted individuals, we must address the opposition's objections in the public policy arena. There are six main objections to open records put forth by opponentsand one solution.
Opposition Statement: Opening adoption records will set the precedent of allowing anyone to obtain the records of professionals, e.g., doctors, and other private records.
Rebuttal; Opponents to open records frequently use the argument that if adoption records are opened, public policy will be setting the precedent for access to traditionally private records such as those kept by therapists, doctors,
lawyers, hospitals and adoption and social service agencies to anyone who is curious. To counter this argument, we must clarify which records wewant to open.
Adoption records are generally maintained on several levels by the adoption agency or attorney; the state department of social services, the courtand of course, the bureau of vital statistics. If we approach open records as a civil rights issue, then we want to be the same as everyone else and not have extraordinary rights. Every state offers individuals who are not adopted access to their vital statistics, e-g., birth and marriage certificates, andaccess to court records about themselves.
If we want to be equal to the rest of society, then we must define open records as access to original birth certificates and court records. By using this definition we overcome the argument that we are allowing adoptees access to confidential records and are setting a dangerous precedent. The precedent for U.S. citizens to have the right to copies of vital statistics and court files about themselves is already set in public policy.
By denying adoptees access to birth certificates and court records about themselves public policy creates a minority class of citizen whose civil rights are being violated by nature of their adoptive "class" and over which they have no control.
Opposition Statement We guaranteed birth parents confidentiality.. public policy never retroactively changes the rules. Opening records will be breaching a contract made by placing parents years ago.
Rebuttal: Opponents to open records use the "right to privacy" as their primary weapon in defeating access to records legislation. Frequently they mention the adoption contract. This contractostensibly guaranteed the birthparent privacy. The signing of the Emancipation Proclamation byAbraham Lincoln deemed it unconstitutional to have contractual agreements concerning the ownership of human beings. Therefore, we cannot make contracts which limit or deny individualrights without the consent of all parties to the contract. In adoption, the adoptee is supposed to adhere to a verbal or implied adoption contract of which he or she was not a participant.
Certainly, we cannot deny that the civil codes have implied confidentiality for those involved inadoption However, the precedent of retroactively negating contracts which are found to violate the civil rights of class of people has already been set. Individuals who purchased neighborhoods in the 50's, 40's, and 30's and signed contracts which prohibited them from selling or renting to minorities found their contracts worthless in the post-civil rights era of the 1960's. In examining the adoption "contract" we must also look at the criteria birth families had to meet in order to place their children. If adoption was the path they chose or were forced to accept for their children, privacy was part of the adoption package, not an option parents could embrace or deny.
The...Emancipation Proclamation.. deemed it unconstitutional to have contractual agreements concerning the ownership of human beings. Therefore we cannot make contracts which limit or deny individual rights without the consent of all parties to the contract.
Birthparents were, by signing away their parental rights, accepting a nonnegotiable condition of confidentiality The system assumed" that confidentiality was desired and needed to protect adoption.
Opposition Statement: Only two percent of all adoptees search; therefore, there is no need for open records as the demand is so small.
Rebuttal: Opponents to open records claim that only 2% of all adoptees want to search- a minority within a minority. Their estimate is probably correct. On a yearly basis it is estimated that between 2% and 4% of all adoptees search, but a different 2% every year. This means if 2% or 250,000 different adoptees search each year, in 10 years the number would total 2,500,000 The tremendous growth in the number of search and support groups is further evidence that not only adoptees. but relatives and others touched by adoption, are increasingly interested in searching, so these estimates may be very conservative. And, one may also argue that 100% of adoptees search. It may not be a literal search, but it is a meaningful one none the less. It begins when the child first asks herself or others, why was I adopted?
Who are my birthparents? Where are they now? Even if estimates of 20/o of all adoptees attempting searches are correct, the argument Is Ir-If only one African American wanted to attend a Mississippi University years ago, should that negate their right to do so? Percentages and numbers don't matter when addressing civil rights issues. relevant. Statistics are not important. If only one African American wanted to attend a Mississippi University years ago, should that negate their right to do so? If only three Hispanic workers wanted humane living conditions in the grape arbors, should that negate their right? Certainly not. Percentages and numbers don't matter when addressing civil rights issues.
Opposition Statement Birthparents generally don't want to be found... opening records will ruin lives.
Rebuttal: Equal access to vital statistics and court files and searching for birthparents are two totally separate issues. Proponents of open records hurt their cause when they confuse the two issues. An adoptees decision to search has nothing to do with his or her right to obtain vital statistics and court files that concern him or herself. All state civil codes already provide, in statute, protection from harassment and invasion of privacy which apply to any citizen acting inappropriately. We must acknowledge that all birthparents are not thrilled at being found, but after 40 years of existence the search and reunification movement can point to a good track record of "backing off" when rejection does takes place. Open records legislation concerns adults, adults who can respect a birthparent who says, not now" or "no thank you."
Opposition Statement: if we open records, birth mothers will abort their children rather than place them for adoption, Open records will encourage abortion not adoptions.
Rebuttal: Recently the "far right," most notably the Right to Life movement, has been strenuously opposing access ro records. Their opposition stems from the misguided notion of "adoption not abortion". "If we deny women confidentiality they will then abort their children." An article published in the May, 1991, American Psychiatry journal by Paul K. B. Dagg, M.D. shows just the opposite. Dn Dagg did an overview of eight longitudinal studies of women denied abortions prior to Roe E Wade. All of the studies were in agreement that approximately 5% of women denied abortions chose adoption for their children. We know from informal studies that when women who have placed a child through a confidential adoption arrangement become pregnant again, they choose abortion because they found the confidential conditions of adoption unbearable.
We must stress that an abortion is a decision not to be pregnant and adoption is a decision not to parent. Sensibly when a woman is considering an abortion, open adoption records are probably the last thing on her mind.
Opposition Statement Open records will discourage birth parents from placing their children for adoption.
Rebuttal: In the past twenty years the "open adoption" phenomena has taken wing. The majority of infant adoptions which occur in the United States are private and open to some degree. One of the reasons open adoption has become popular is at the insistence of placing parents. Prospective adoptive parents frequently complain that most of the placing parents they meet insist on a degree of openness in their adoption. It would seem that open records and open adoption would, therefore, encourage adoption rather than discourage parents from placing their children.
Public policy must also recognize that there is a degree of responsibility to a child by a placing parent beyond making an adoption plan. Even if confidentiality is desired at the time of placement, the child's right to information at a later date must be observed
© 1997 TxCARE
Texas Coalition for Adoption Reform & Education
E-mail: txcare@txcare.org
Snail Mail Address:
TxCARE
PO Box 832161
Richardson, TX 75083-2161
Last updated March 7, 1997