The Last – and Least Recognized – Americans Denied Equal Rights

Prejudice may not … be the basis for differential treatment under the law” even if it does not rise from “malice or hostile malice.

— President Obama’s Administration, 28, 2013

All Americans have a right to “equal protection” under the law. Yet one class of people are so marginalized they are not even recognized as a discriminated against minority.  The least known or even thought of in a discussion of civil rights are adopted persons.

We do not think about adoptees in this way because adoption is viewed as a social good that serves babies and children. Laws regarding adoption seem to have ignored the fact that adopted children become adult citizens who vote, serve their nation, pay taxes, marry and do everything all other citizens do, yet remain infantilized under the law, denied full equal status with their non-adopted peers in regard to access to their own original and true birth certificate.

Comprising an estimated two percent of the population, adopted persons are a discriminated minority with laws that apply only to them while denying them the same rights as non-adopted persons. No others – not even convicted felons – are denied access to their own birth certificates.

While all other American citizens can research their genealogy generations back, exposing long held “dirty” secrets, more than forty states disallow adopted persons knowing the names of their mother and father. These restrictive provisions prejudicially distinguish adoptees, in violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”

After 30 years of unsuccessful attempts to reverse laws in New Jersey that deny adoptee rights, on June 13, 2013, Senator Diane Allen, NJ, introduced yet another bill in committee that would allow the state’s adopted adults to receive their birth certificate upon request. The Senator stated: “It’s a civil rights issue and it’s appalling to me we treat people this poorly. We have made them a separate class, an inferior class, because they were adopted.”

Adoptees’ denial of equal access to their birth certificate causes them disadvantage and creates potential harm to them and their offspring by disallowing them the means to acquire updated family medical history as well as putting them at risk of unknowingly committing incest.

Yet, as of this writing, only seven American states grant adult adoptees unrestricted access to their own original birth certificates (OBC) that all other citizens take for granted. Each time an adoption occurs in the United States, including step-parent adoption, the adopted person’s true and accurate record of their birth, their OBC, is sealed from them even though it is the record of their birth. This authentic document is replaced with a new certificate of “birth” with falsified data that changes the name of the individual without their request or knowledge, and identifies the adoptive parents as the parents “of birth.”

If you or I falsify vital records or identification, it’s a crime, yet every state other than Alaska and Kansas commit such state fraud, issuing a totally new birth certificate – often years after the birth took place. Called “amended” certificates, but with nothing indicating that they are not original or have been altered in any way, they can, and often do, also change the date and place of birth, and even the race of the individual.

The History

Sealing adoption records is a relatively recent development in our nation’s history. Prior to 1940, all parties to adoption had access to birth certificates and adoption-related court documents, with adoption agencies assisting separated relatives to locate one another. In the mid-twentieth century, states began to enact statutes that severed the legal bond between the birth parents and the child.

Professor Elizabeth Samuels, University of Baltimore, School of Law, attributes adoption records closure to post-World War II societal attitudes that labeled “unwed” mothers as socially deviant sinners and the children born to them “illegitimate.” Adoption by married couples served to eradicate this “impure” past.

Other historians believe the well-intentions argument for secrecy in adoption to be more of a smoke screen. Instead they point to lack of transparency as serving adoption practitioners. American adoption history, in fact. shows that unscrupulous baby brokers such as Georgia Tann and Bessie Bernard, a Brooklyn housewife, part of a baby-peddling ring in the 1940’s, pushed for secrecy in adoption to protect their methods of obtaining children for profit.

Tann, charged with stealing 5,000 children from their families, provided children for high paying clientele including celebrities, judges and politicians who gratefully helped by destroying and covering up records, as well as pushing for sealed records to become the standard of practice.  Barbara Bisantz Raymond, author of The Baby Thief says that Georgia Tann “…began falsifying adoptees’ birth certificates in 1928. She did so to cover her crimes, but claimed that it spared the shame of being known to have been adopted — and, often, born outside wedlock.” She ran her fraudulent adoption ring for decades because “saving children” resonates with the public, and sealed birth records virtually guarantees little or no accountability.

The 1940s and 50s was a time when shame and secrecy extended to infertility. Thus, sealing of adoption records  served well the only fee-paying party to the transaction. Adoption was able to be presented to prospective adopters, who had fears about the idea, as a way to have a child that would be the same “as if” the child were born into their family. Social workers routinely instructed adopters not to reveal the truth of adoption as it might cause the child to feel less a part of the family. “Amended” birth certificates made it all possible. As a result, many adults born and adopted then were never told that they were adopted. The only “birth” certificate they have provides no indication of the document having been amended leaving them in the dark, giving false medical history and exposing them to unknowingly committing incest.

Most find out eventually and if they are lucky, find a sub group within the adoption community known as Late Discovery Adoptees (LDA) where they can get support to deal with having everything they have believed to be true taken from them; their lives turned upside down. Some experience shock, others feel a sense of confirmation; many feel betrayed to learn that their extended families knew and conspired in the conspiracy of silence

All of this lying and secret keeping occurred despite child welfare experts of the 1950s recommending that OBCs remain available to adult adoptees. Initially, most states sealed adoption records from the public, or all persons except the adoptee. By 1960, 28 of the 48 then-existing states created legislation obliterating the adopted child’s past by sealing his original birth certificate from the adoptee himself.

Pennsylvania sealed their adoption records in 1984 and Alabama did so in 1991. By 1990, only three states allowed adult adoptees to see their original authentic birth records on demand – and by 1998 only Kansas and Alaska, which never sealed adoption records, still allowed unconditional access. State by state description of access and restrictions is available on the American Adoption Congress website.

All the while, a grassroots movement was forming to oppose these restrictive and prejudicial laws.  Jean Paton (aka Ruthena Hill Kittsona) social worker, and author of Orphan Voyage, herself twice adopted, began writing and speaking out for adoptees’ right to equality in 1949. Not long after Paton began her fight on the West Coast, Florence Fisher founded the Adoptee Liberation Movement (ALMA) in New York. During the 1970s local search and support groups organized across the country and flourish today online

As a result of this modest grassroots adoptees rights movement, a small handful of states have restored adoptees rights, many with limited access and provisions such as age limits, or veto rights for parents of birth that do not apply to non-adopted citizens. Such conditions maintain inequality.

For and Against

In 1978 the Department of Health, Education and Welfare (HEW) commissioned a panel of adoption professionals to draft model legislation as a guide for states to reform their adoption laws. Released in 1980, the Draft Model State Adoption Act recommended that all adoptees be given free access to their OBC at the age of majority. This has yet to occur.

The prestigious adoption think tank, The Evan B. Donaldson Adoption Institute concludes that, “Barring adopted adults from access to their OBCs wrongly denies them a right enjoyed by all others in our country, and is not in their best interests for personal and medical reasons. Alternatives such as mutual consent registries are ineffective … [and] the vast majority of birthmothers don’t want to be anonymous to [their] children…”

The Institute recommends all states unseal original birth certificates for all adult adoptees, retroactively and prospectively, and states with restrictive access amend those limitations. The American Adoption Congress (AAC) likewise supports full unrestricted access for adoptees as does Bastard Nation, the Adoptee Rights Coalition and dozens of state adoptee rights organizations.

The HEW model state adoption act spawned backlash in the form of new lobbyists for the mega billion dollar adoption industry such as the National Council for Adoption (NCFA), who in turn formed alliances with Catholics, Mormons, and Evangelical Christians to keep adoptions secretive. Paid to keep adoption agencies and practitioners – which operate more lucratively under the veil of secrecy – in business, they claim publically to be concerned for protecting the rights of mothers to remain anonymous. However, such protection was never a reason for sealing the records.

State records reveal birth certificates were sealed to protect the adoptive family from interference by birth families, exposure to embarrassment, or blackmail. Protection of the confidentiality of birthparents was never mentioned as a concern or reason to seal the records.

Adoption occurs in two steps. First, there must be obtained, voluntarily or involuntarily, a relinquishment of parents rights by the parents of birth. It is not until  adoption, not relinquishment, that adoption records are sealed. Parents who have relinquished their rights to a child are not party to the adoption proceedings and not notified when, or even if, an adoption takes place. If a relinquished child remains in foster care, if the adoption is never filed or finalized properly, or the child dies before such an event takes place, the record of his original birth remains open to the public. Thus, relinquishing parents could never have been given promises of secrecy.

There might be an assumption of confidentiality from public knowledge of the birth and surrender of rights, but not anonymity from their own flesh and blood. No one has a “right” to anonymity, or the protection of a secret and it is impossible to guarantee either. In today’s Internet world, anyone can be found and any secret revealed. Adoptees are reunited every day, despite sealed birth certificates, and are welcomed 90% of the time. Many birth mothers support the rights of adoptees. In 1998 Oregon, mothers who relinquished took out a full page advertisement denouncing claims they were promised anonymity, helping to pass initiative Measure 58 allowing adoptees unrestricted access in that state.

Mothers who fear being discovered can change their name, or, if found, simply tell their child to leave them alone. Sufficient laws exist to protect us all from harassment, stalking and unwanted contact. Specific laws that apply only to adopted persons and their original parents are unnecessary and treat adoptees as assumed guilty or dangerous and their mothers and fathers in need of special protections that apply to no other adults.

Adoptee rights are opposed by the Right-to-Life movement and Catholic adoption agencies because of an unsubstantiated belief that, if the secrecy were removed, women would choose abortion over placing their child for adoption. The fact is that in states that have granted adoptees equal access to their OBC, there has been no increase in abortions or decrease in adoption placements, and the vast majority of mothers who relinquish children for adoption today request open adoption with ongoing communication between birth and adoptive families.

Others opposing adoptees’ right to access, astonishingly including some state chapters of the ACLU which is split on the issue.  In some states they side with protecting the alleged “rights” of relinquishing parents likely to serving their attorney members whose livelihoods are derived from adoption as well as members who seek to adopt and prefer no “intrusion” in their lives by natural parents. Their fears, while understandable, deny the civil rights of their children. In other states ACLU has come out in favor of lifting the restrictions and creating equality for adoptees.

Equality for All

Gays, long denied rights because their status was thought to be a lifestyle choice, are being granted marriage equality state by state, in large part because they are out-of-the-closet in large numbers and in public positions, marching and demanding their equality while adoptees remain for the most part invisible and silent.

Adoptees – who certainly had no part whatsoever in choices made about their adopted status – remain largely unseen and unheard of as a civil rights movement. Not faced with the violence the LGBT community is subjected to, makes it easier to passively accept their denial of rights. Many have internalized societal edicts that demand their gratitude. They are told that their natural curiosity, and even their need for updated family medical history, is a slap in the face to those who raised them. Their fear of hurting their adopters and the possibility of being rejected or abandoned – again – often results in waiting until adoptive parents have died to search, or doing so in secret and even some who search and reunite are reluctant to speak out  for adoptee rights lest they appear to “bite the hand that feeds them.” With no intent or malice on the part of adoptive parents, some adoptees have compared their experience to those who suffer Stockholm Syndrome.

Yet adoptees, together with adoptive and birth parents, have been fighting their oppression and as a result, as of this writing  seven states – Alabama, Alaska, Kansas, Maine, New Hampshire, Oregon and Rhode Island – allow adopted persons unrestricted access to their original unaltered birth records. Another small handful of states have granted limited access, and the fight continues in the remainder of states.

Secret keeping in adoption no longer serves the best interests of children. It instead serves a mega-billion dollar entrepreneurial industry that caters to the demand for children for adoption by those willing to pay tens of thousands of dollars per child. State legislators need to see past the smoke and mirrors presented by industry paid lobbyists and reverse these draconian policies and regulations. In addtion, the federal government needs to deem it unconstitutional for states to discriminate against adoptees, and unlawful to continue to falsify birth certificates in a day and age that no longer stigmatizes children born to single moms.

How can we as a nation continue to allow these injustices? How can we promote adoption as a loving option when each adoption that goes forth condemns yet another citizen to discrimination, maintaining them as second-class citizens, forever infantilized and under suspicion of causing harm for having been born?  How can we pledge our allegiance to a nation that does not provide liberty and justice for all of its citizens equally?

Jean Paton, founder of the adoptee rights movement, wrote: “Here… is a possibility for freedom or for slavery that perhaps has been overlooked. . . “

Mirah is author of two internationally acclaimed books, more than 200 published articles, and cited in twenty professional journals having been researching, writing and speaking about American and global child adoption, restoration of adoptee rights, as well as contract anonymous conception and surrogacy since 1980. More at her website and Wikipedia. Read other articles by Mirah, or visit Mirah's website.