' [Birth Mother] First Mother Forum: Challenging closed adoption records in the courts

Sunday, July 13, 2014

Challenging closed adoption records in the courts

It's time adoptees come together in a lawsuit to strike down sealed record laws. But before I go into this, some history. Over thirty-five years ago a small group of intrepid New York adoptees filed a legal action action in federal court asking the court to declare laws preventing them from examining their adoption records unconstitutional. They sought not only their original birth certificates,  but also their court records and their files at the agencies which handled their adoptions. They faced a formidable army of lawyers representing powerful interests--the City of New York, the courts, and major adoption agencies. They lost.

From that time on, adoptees have been understandably reluctant to challenge these unjust laws in the courts. Instead, they have taken their
case to unsympathetic legislators, only to be told time and time again that
the name of the woman who gave birth to them was none of their business, that the interest in privacy of unknown and unknowable women outweighed any interest adoptees might have in knowing their origins. These arguments, of course did not originate with legislators, but from those who whispered in their ears while passing on campaign cash--the adoption industry and adoptive parents. Not all adoptive parents, but an overwhelming number of them in the good ole days were against giving "their" children the truth of their origins.

The Court opinion in Alma v. Mellon,* viewed from what we know today about adoption seems almost quaint. The laws protected the "interest on the part of the Adopting parents," and the adoptive family "might be adversely affected by the release of information as to the names of the natural parents or the unsealing of the adoption records."

Further, "the confidentiality statutes promote the social policy underlying adoption laws....The major purpose of adoption legislation is to encourage natural parents to use the process when they are unwilling or unable to care for their offspring." In other words, no confidentiality, no adoption. Mothers would just keep their little bastards--or throw them in the trash.

The truth is that mothers in 1979 did not have the power to demand adoptions be closed--or open.
Lorraine, back in 1966, tried to oppose this law at the time she relinquished her child, but was told it was anonymity or nothing. Once mothers went--or were sent by anxious parents--down the adoption road, they had no power over what happened to their child. No one has ever produced any document signed a a mother guaranteeing her anonymity.

To the contrary, some mothers were required to sign papers promising never to search for their child. As a practical matter, consenting to adoption does not guarantee an adoption will take place. It is adoption--not simple consent--which triggers sealing of the records. The whole confidentiality thing is just one a big lie spread by the adoption industry eager to prevent disclosure of information in their files which might prove embarrassing, and to keep its promises to adoptive parents that the child was theirs, all theirs.

The suit was the brainchild of ALMA's fearless leader, adoptee Florence Fisher, who spent twenty years searching for her natural mother, and the organization financed the case. Adoptees argued that "lack of access to such records causes some of them serious psychological trauma and pain and suffering, may cause...medical problems, may create...a consciousness of danger of unwitting incest, and...a 'crisis' of religious identity." These arguments didn't fly. After all, the Court noted, under New York law, if an adoptee really, really needed his records, a judge could unseal them after notifying his adoptive parents.

This opinion reminds me of other court opinions that end up in the dustbin of history, noted only for their absurdity, such as a 1873 U. S. Supreme Court opinion upholding an Illinois court which refused to grant a woman a license to practice law. The Court reasoned (I'm not sure that "reasoned" is the appropriate word): "the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and women. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."

In 1979, Jimmy Carter was in the White House, marriage between members of the same sex was unthinkable, marijuana was a dangerous drug and its possession warranted years in prison, organic food, climate change, and DNA testing were unheard of. Our number one enemy was the Soviet Union. The home computer was only a glint in Steve Jobs' eye; the MAC would not be introduced for another five years. The Internet was a small system operated by the Department of Defense and beyond the ken or ordinary individuals..

Today, thanks to computers, the Internet, and social media, adoptees and their parents are reunited daily. Domestic voluntary infant adoptions as well as many foster care adoptions are open. In fact openness is the carrot which lures some vulnerable young women to give up their babies. Some first mothers proclaim their first mother status in blogs, in magazine articles, and on prime-time television--as if they had done something to be proud of.

Sixteen states allow adult adoptees access to their original birth certificates although some permit a first mother veto and others restrict access to adoptees born within certain time frames.**  Oregon and Colorado allow adoptees access to their court records. No one has shown that openness has inhibited adoption or increased abortions. There's no reported cases of a mother going off the deep end after her lost child contacted her. Many first mothers strongly support opening records in the hopes that their child can find them.

While advocates for unsealing records should continue to trek to state houses, they should also take
San Francisco Courthouse
definitive legal action to assert their rights as advocates for gay marriage have done. The best people to challenge these archaic laws are adoptees born in California which, like New York, is still locked into mid-20th century thinking. We recommend that adoptees seek only birth certificates and court records, but not adoption agency records, thereby having one less adversary. Strategically California works because it is one of the states which comprise the Ninth Circuit Court of Appeals, the most liberal appellate court in the country. On a personal note, my surrendered daughter Rebecca was born in San Francisco.

There have been attempts to pass legislation in California to open records, the last was in 2009-2010, AB 372.*** The bill had a lot of bureaucratic baggage, related to first-mother vetoes resulting in the bill being sent to the Appropriations Committee with a $16 million price tag. That anticipated cost, in cash-strapped California, killed the bill. Simple bills which allow adult adoptees to access their original birth certificates and court records have no cost to the tax payers since the adoptee pays a small fee for copies of the records.

Although we've heard rumblings, we don't know if open records proponents will try again for a bill in California. With all the confusion and dissension over the last bill, successful legislation doesn't look promising. So how about it California-born adoptees?****  Are you willing to take your fight to the courts?--jane
*601 F.2d 1225
**Alabama, Alaska, Colorado, Connecticut, Delaware, Illinois, Kansas, Maine, Massachusetts, New Hampshire, New Jersey, Ohio, Oregon, Rhode Island, Tennessee, and Washington
***PACER-Past legislative efforts.
****Some California-born adoptees are Melissa Gilbert, Jonathan Gilbert, Michael Reagan, Christina Crawford, Jean Strauss, Jeanine Baer.

Let's put to rest the myth that mothers were promised confidentiality
The promise of 'openness' lures vulnerable mothers-to-be

From the rear cover: "Birthmark explodes the myth of the natural mother who would condemn her child to a lifetime of anonymity to protect her own privacy. It is a courageous statement of a mother who acknowledges that her responsibility to her child begins with birth and does not end with adoption. Lorraine Dusky is a mother who honors her child's right to the truth."--Florence Anna Fisher, president of Adoptees' Liberty Movement Association

Michael Reagan: On the Outside Looking in 
"Caught between two families, the Reagans and Jane Wyman, but feeling that he doesn't belong to either one, Michael Reagan takes the reader through a gut wrenching childhood of presumed privilege which often works against him and which is filled with thoughts of loneliness, unworthiness, and the constant fear of not being wanted; all as seen through the eyes of a child. One can only wonder how many other adopted children have shared these feelings. Then, even when he begins to feel that he might belong and that he is really wanted, he is once again put down. Brought home from boarding school and expecting his own room he is instead made to sleep on the couch so a servant can have a room of her own."--Marvin D. Pipher, a reader at Amazon. 

Growing in the Dark: Adoption Secrecy and Its Consequences by Janine M. Baer
"Growing in the Dark, by virtue of its modest length and accessibility, can be used to educate people both within and outside of the adoption reform movement about the effects of sealed records and the faulty premises used to support them." --Barbara Busharis, American Adoption Congress Decree


  1. Jane is right. This may be the only thing that works. It should never have come to this, but nothing else is working. I say we have to band together and do this!
    Glad to be back after being sick all weekend! I missed an awful lot!

  2. Glad you're better, Julia Emily! I was worried.

  3. Thank you so much! I have never been sick like this in summer, and my entire family came down with it as well. What a weekend!
    As you know, my search angel came up empty. I am
    Now waiting for DNA test results. It does seem that my first mother wanted to hide or was forced to hide after my birth. If no one has submitted DNA to the testing site, I may be at a dead end!

  4. In upcoming months I am planning to petition my state (DC) to access my sealed OBC by enclosing notarized letters if support for the release from both my reunited natural parents.
    In the event I am denied, I figure I would have a good case because it would remove the "privacy protection" aspect entirely from the case and it would be a pure legal argument of access to one's own certificate. In the event I am denied, though, I wouldn't know how to sue plus I would fear the cost.

  5. I am also wondering how something like a lawsuit gets organized, and what it would cost. I have no idea how these things work.

  6. A lawsuit against sealed records and stolen identities should be a class action suit brought by a constitutional lawyer. That was what ALMA v. Mellon was. Not sure who Mellon was? Jane, can you enlighten us?

    1. Mellon was Irving Mellon, the Director of Vital Records for the City of New York. He, along with the other defendants, was sued in his official capacity.

  7. Mellon was NYC Director of Vital Records at the time of ALMA's lawsuit.

  8. Regarding how to go about a lawsuit. Gather together a group of California-born adoptees. Include those who have reunited and those who have not. It would be great if an existing adoptee rights organization would take this on. Find an attorney who might be interested, perhaps an adoptee.

    That attorney should be able to help you find an attorney specializing in constitutional law -- perhaps a professor at one of the prestigious California law schools.

    In other words, network, network, network until you find what you need. You will also have to raise some money along the line even if the attorney agrees to work for free. (I am not licensed to practice in California but I could help with legal research.) Money is needed for filing fees, service fees, expert witnesses expenses, court reporters, and other things.

    The most important thing -- you need to be committed and work together and be in for the long haul. These cases can take several years.

  9. Julia Emily: If ancestry.com doesn't produce results, you can also try 23andme and familytreeDNA.

  10. Once organized, crowd funding could pay the bills. There are definitely enough people involved to raise the money.

  11. Hi Steve: My friend used Ancestry and 23 and me, I believe. She was black market, and she found her father's family. She has not found anyone on her mother's side, though. So....this is what I am trying. Fingers crossed!

    Amazing that we are still arguing closed records vs open, when DNA testing has really blown any kind of secrecy out of the water completely! Sealing a record will not "protect" anyone's privacy any longer, and adoptees are finding their first families every day. So, the law is in place just to be broken. And to make it difficult for adoptees to accomplish anything above board. How ridiculous! Yet, the legislators still carry on about confidentiality. It's mind boggling!

  12. Due to the way our legal system works, challenging closed records in the courts is very risky. If we lose in Federal court, then the decision will set a legal precedent that will be near impossible to overcome. Legislation is the way to go, because we can keep trying until we win.

    Also, don't assume that a liberal court will be friendlier on adoption issues. With regard to open records, I have found liberals much harder to convince than conservatives. Conservatives generally worry about the abortion issue above all else. Studies showing that open records don't affect abortion rates ease those concerns, and the argument that government should stay out of our families resonates with them.

    Liberals worry more about the social engineering aspect of adoption... the integrity of the adoptive families and how open records might affect that aspect of adoption. My experience is that they're harder to convince because they believe in "the system" of adoption more.

    Thus, deep blue New York and California have closed records, while deep red Alabama and Tennessee have open records.

    1. A bad decision would be a bad precedent but only in the jurisdiction in which it occurred. A good decision, could break the barrier; soon many more states would change their laws either through court action or legislation.

      Legislative decisions on opening records depend more on local issues than on conservative v. liberal. Tennessee opened its records because of the Georgia Tann scandal. Alabama had only closed it records few years earlier, and the adoption industry was not powerful there. A blue state, Illinois, opened records largely because of the persistence of a legislator who was an adoptee.

      The world of adoption has changed so much since 1979, it's hard to believe that the arguments used then would sell today. At any rate, it's worth lining up supporters (celeb adoptees, adoptive parents, birth parents, adoption agencies) and attorneys. Then do the legal research and find expert opinions to bolster the case.

      It;s also important to keep trying the legislative route. From what I can tell, efforts in California has been frustrated by a lack of supporters and dissension among the handful of supporters. No matter whether the legislative route or the court route or both, advocates need to have thousands of supporters and one simple message.

      Re-framing their message would be helpful. Adoptees should have arguments for opening records other than the neurosis of some adoptees and medical problems. They need to stop giving credence to the birth mother's "right to privacy" by countering it with "most mothers don't want privacy." The fact is birth mothers don't have a right to privacy.

    2. Oh, Java Monkey, you hit the nail on the head. In this weird twist of logic, often the more conservative people understand the need to know. But wine-drinking, eco-conscious very liberal OR got it together to pass the initiative and voila! Adoptees there can get their birth records with the damn veto

      Very liberal people like to believe that roots don't matter. But what about the mother who feels her gut ripped out when she gives up a child?Oh Pish tosh...You can have another....

      --A very liberal person who knows it matters

    3. In Oregon, the ballot measure opening court records passed with 57 percent of the vote. It was opposed by the liberal ACLU and Ecumenical Ministries and the conservative LDS Church. It wasn't liberal v. conservative but common sense over imagined problems.

  13. Correction: they're not "unknown and unknowable" women: they're women. And they're always the one targeted. Look at the last line of your above reply "The fact is birth mothers don't have a right to privacy." (That's not a fact.) You single out the mother. It's always the mother, seldom the father.The privacy that many birth mothers have been given or assured of over the decades has been implied, but that makes it no less real. It's certainly real to them. We should always "give credence" to an individual's right to privacy: isn't that the basis of Griswold v. Connecticut? Privacy is paramount in our society, even if it's for a "birth mother." How about some focus on "birth fathers" for a change? Parity, what a concept.

    1. Griswald/anonymous: We have written about biological fathers/birth fathers before, in the posts below, and about several birth fathers who fought for the right to raise their own children, as in the case of Dusten Brown and Baby Veronica, as well as others:

      Adoptive father John Roberts: Not impartial in the Baby Veronica case

      After I published Birthmark, I found that some of the most virulent opponents were men. In at least on case, the man was someone famous for having lots of affairs right under his wife's nose. A few years earlier, I had turned down lunch with him.

      Father's Names on Birth certificates: More artifice than fact

      Fathers: Are they necessary?

      These are a few of the posts we have written about fathers. You can find many others using the search function in the upper left corner.

  14. P.S. I used "Anonymous" in my (very recent) comment to underscore the matter of privacy.

    1. The "mother's right to privacy argument has been rejected by the courts." Here's what the Oregon Court of Appeals said with respect to the right of privacy in upholding Oregon's law allowing adult adoptees access to their original birth certificates:

      Adoption necessarily involves a child that already has been born, and a birth is, and historically has been, essentially a public event. In Doe v. Sundquist, 106 F3d 702, 705 (6th Cir), cert den 522 US 810 (1997), the Sixth Circuit Court of Appeals, in rejecting a similar challenge to a Tennessee law that permits adoptees access to birth records, noted:

      "A birth is simultaneously an intimate occasion and a public event--the government has long kept records of when, where and by whom babies are born. Such records have myriad purposes, such as furthering the interest of children in knowing the circumstances of their birth. The Tennessee legislature has resolved a conflict between that interest and the competing interest of some parents in concealing the circumstances of a birth."

      Neither a birth nor an adoption may be carried out in the absolute cloak of secrecy that may surround a contraception or the early termination of a pregnancy. A birth is an event that requires the generation of an accurate vital record that preserves certain data, including the name of the birth mother. That the state has a legitimate interest in preserving such data is not disputed here. We recognize that a birth mother may well have a legitimate interest in keeping secret the circumstances of a birth that is followed by an adoption and also that an adoptee may have a legitimate interest in discovering the identity of his or her birth mother. Legitimate interests, however, do not necessarily equate with fundamental rights. The state may make policy choices to accommodate such competing interests, just as the state has done with the passage of Measure 58. We conclude that the state legitimately may choose to disseminate such data to the child whose birth is recorded on such a birth certificate without infringing on any fundamental right to privacy of the birth mother who does not desire contact with the child.

  15. Griswold: there is no more privacy. DNA TESTING has blown that away. Even black market adoptees are finding their bio families. Privacy and secrecy are a thing of the past.

  16. Sigh....Griswold, Your privacy ends when you bring that human into the world. Why?? Because the need for the person brought into the world to live a whole life, meaning the need for knowledge to make the best decisions they can concerning medical and social decisions is dependent on the the knowledge that ONLY the biofamilies..including mother, father and anyone else can give them. The knowledge is imperative for the adoptee to make INFORMED decisions,not only the adoptee but the adoptees children, the adoptees grandchildren. I don't much care anymore about how emotionally distraught(although I would always act with sensitivity) it may make those that know my biology because at this point in my life my children and their children's right to know is more important then the mothers privacy. Also for doctors to make good diagnoses they NEED family history. Thats common knowledge these days. Reason why most of us start with the mothers...well they are our mothers...they gave birth, logical place to start. THEn in order to complete the process of knowing our unique biology we will try to find the fathers. There is NO discrimination going on here, it has NOTHING to do with woman's rights, reproductive rights, fertility rights, it is a human right for the person born. This goes for ANY person born....no matter how they were born, who they went to , who carried them or how their "mother" got pregnant. YOUR RIGHTS STOP once that different human being has come from a mothers body. They are the ones that give birth. It is so simple in my mind, don't understand how society can't see it.

  17. Sighs all around, I'm afraid. I understand the concept of "public event," and why societies have always turned to such record keeping; it was usually a matter of property rights and contracts. It was never about human rights and emotions, because an individual's life didn't account for much until the past several hundred years. But a "whole life" is not dependent upon usurping another's privacy (yes, that's still a functioning word). And it's always the woman's privacy that is usurped. A good compromise is the updating of medical history, not of names and addresses (unless that is volunteered). Nathaniel Hawthorne called it in 1850, and little has changed, even though we try to cloak it differently. It's punitive.

    1. Updating medical information is not a good compromise. There's a lot of other information many adoptees want and deserve, like why they were given away, seeing a face which resembles their own.

      The infant adoption system grew out of a twisted morality which punished mothers and their babies for the mothers' sexual conduct. Claiming a mother's right to privacy against her own child reinforces the view that these mothers are sinners who need to hide. A much healthier approach is to send the message to these mothers by unsealing records that having a baby was not wrong.

  18. Sorry Griswold.....updating medical information, while a good idea, is NOT a good compromise. Do I walk into the passport office and tell the official "I don't have a birth certificate, but here is my updated medical info." I will be laughed out of there so quickly my head will spin.

    I WAS BORN. Just like everybody else. And I need the documents that give me correct date, time and place in order to accomplish the same things that every other citizen can accomplish. If my first mother's name (which I already know, BTW) is on the document, so be it. She gave birth to me. That's a very big thing from which to hide.

  19. The issue isn't morality or sexuality; it's parity. There's another message in Hawthorne's "Scarlet Letter." Consider its 1850 publication, two years after the Seneca Falls Convention of 1848. Morality is on the surface, but Hawthorne is also addressing women's rights. There is, he insists, no inherent parity for women.

    "These" mothers know that. They do not need to be sent a message on morality; they could author volumes on it. They could also offer a master class on parity, specifically the lack of it. Legislate that "sinners" come forth to be informed they're not sinners? That's a pejorative argument worthy of a Monty Python skit.

    Understand that "these" women are in the vanguard of a Pro-Choice movement: they choose to abide by an oral contract of confidentiality; they choose to be given the same treatment as men (the cloak of invisibility in the delivery room); they choose to have their own lives; they choose privacy.

    Read "The Stranger" by Camus. It articulates much of the Existential struggle to understand life. That's part and parcel of this issue, not a right to updated medical history or ease in the passport application process. Those issues are rationalizations. A name on a birth certificate will not alter the universal question of "why was I born?" or an individual's search for understanding. It will, however, focus a laser beam of interest on "these" women, the ones we want to step forward (into the light?) because well, we want to see their faces.

    Changes (and compromises) can be made on medical history and passport applications. Many adoptees have passports. How about voluntary disclosure of parentage on an amended birth certificate? When compromise is unacceptable, it's a clear indicator of a punitive motive. So much unhappiness and disappointment in this world; the law seldom provides justice, let alone understanding.

    1. Griswold, let's be clear. Most of the mothers surrendering their newborn infants did not choose privacy. The entire process including secrecy was foisted upon them. As Rickie Solinger wrote in "Beggars and Choosers", adoption is most often the choicelessness of resourcesless women.

      You need to understand that signing a consent to adoption does not guarantee the child will be adopted. In "Grisold", etc, the right to privacy led to the right to use birth control or to have an abortion. Using birth control did not create a right to privacy. The right to privacy does not lead to the right to adoption. Giving up a child does not create a right to privacy.

      The women who lost their children to adoption weren't in the vanguard of the pro-choice movement. In fact horror stories of young women sent off to maternity homes and forced to deliver babies without family nearby and surrender their babies to strangers was one the bases for the abortion rights movement.

      At any rate, denying a whole category of people the right to know their origins because a few women were told that the process would be a secret is manifestly unjust.,The careless words of a few ignorant social workers should not bind state legislators forever.

      Many people buying slaves in the US were promised that their slaves would remain slaves for their entire life. In fact the Supreme Court made this promise in the "Dred Scot" case. Along came the 13th Amendment and the slaves became free. Their former owners did not receive any compensation for them. No one would argue that slaves had to remain slaves because of promises made to their owners.

      Mothers who are found are not forced to step into the light or wear a scarlet A. My daughter found me and it was my choice whether to tell my family and friends about her and to develop a relationship with her. Nobody stared at me when I told them about my daughter. The typical reaction was "that's cool."

      My daughter's adoptive parents claimed they had been promised that she would never know her first parents. Would you argue that the law should have barred her from searching for me?

      There's nothing punitive about revealing the names of first parents. What is punitive is keeping them a secret, reinforcing the warped idea that having a baby while single is a sin which has to be hidden.

      You're correction-- the medical history argument is often a rationalization. It's given prominence because it's acceptable while admitting a primal bond with first parents isn't today when children are often considered fungible commodities.

      Of course a name on a birth certificate will not explain why you were born. It will, however, give you a connection with the natural course of things; it will prove you were born. Many adoptees say that until they learned about their first parents, they felt that they had been hatched; they had come from nowhere. The title character in the film "Antone Fisher" expresses this.

      Secret infant adoption was a tragic social experiment of the mid-20th century, not unlike other flawed experiments--bleeding, lobotomies, and the like--which were worse than the disease. We cannot go back and change history but at least we can make amends, starting with allowing adoptees and their first parents to have access to records pertaining to themselves and to the other.

      And by the way, I've read "The Stranger" both in French class and in English.

  20. I was born in Michigan and my adoption records are closed. Has that changed there yet?

    1. Records are still closed in Michigan. The Resources Page on FMF has a list of states which allow access to original birth certificates. http://www.firstmotherforum.com/p/blog-page.html.

      You might contact Michigan Searching to learn if there is any organized effort to get the laws changed in Michigan. http://www.michigansearching.com/

    2. I am from MI, and am in contact with the group there. With the GOP controlling the legislature, and a GOP governor, the group is generally not even trying to do anything as it is undoubtedly pointless. Instead, the state is passing laws to make adopting easier and quicker.

    3. Michigan is not only closed, it is among the most regressive and conservative states regarding adoption records. The Michigan Department of Health and Human Services has state publicly they don't even track request for adoption records, on top of legislation that creates: consent forms, "confidential intermediaries," and court orders. If you are born between 1945 and 1980, you are deemed less equal and required to have a court order. You can read the emails I published through an FOIA of how the work to keep records sealed, even for adoptees who know their birth families and have other records. http://www.rudyowens.com/adoption/.

  21. It is a shame that a large group of people do not access to the original copies of their birth certificates without hiring a lawyer. It is not right !!
    I want to join the fight to have sealed birth records opened. Also those marriage and divorce of biological parents of adopted children be opened as well.

    I have found nearly all of my biological father's people, but I cannot find a record a the marriage or divorce between him and my mother. Even the old address where I lived before I was adopted is listed in my mother's second marriage name.



COMMENTS ARE MODERATED. Our blog, our decision whether to publish.

We cannot edit or change the comment in any way. Entire comment published is in full as written. If you wish to change a comment afterward, you must rewrite the entire comment.

We DO NOT post comments that consist of nothing more than a link and the admonition to go there.