Birth Records Weren’t Closed for the Reasons You Might Think
By Elizabeth J. Samuels
(Originally published in the Washington Post, Sunday, October 21, 2001; Page B05. Reprinted With Permission of the Author)
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 adoptive parents 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