Sealed Adoption Records: Knowing and Noing!!

Following is a paper on "Sealed Adoption Records" that I wrote for a law school class in 1985. It discussed the historical development and state of adoption record laws and litigation in the United States at that time, predicted that the controversy over sealed records would continue to escalate, and offered suggestions for resolution of the sealed record issue. It also contains some personal reflections on being adopted.

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I am making it available on the web because I think it may be helpful to some in
providing a historical context to frame and better understand the current battle
over the sealed records issue. It is presented in its ORIGINAL FORM, WITHOUT UPDATE.
It does not reflect the legal developments relating to adoption records which may
have occurred since it was written. This does not represent a fatal weakness,
however, because the changes that have occurred are not major and are in keeping
with the expectations laid out in the paper. If I were to re-write it today, I would
update the statutory and case law sections, and clean up the grammar and writing
style. However, the basic thrust and conclusions would remain the same. The dynamics
of the adoption triad and its place in the general culture have not changed in any
unforeseen way.

Finally, this paper was scanned to file and OCR'ed; it was not retyped. In the
optical character recognition process some errors are almost certain to occur. In
this particular case, the program had a bad habit of converting 3's to 5's (eg. 335
became 555). I have attempted to catch and correct these errors in the body of the
paper, but I have not yet had time to proof read the Notes/Citation section.
Therefore, be cautious in using the citations.

If the issues in the paper are of interest to you. If you would like to discuss them
further. If you have suggestions, disagreements or questions. Please feel free to
drop me an email at stoors@hotmail.com.

SEALED ADOPTION RECORDS: KNOWING AND NOING!!

Douglas S. Loomer
Family Law Seminar
Wayne State University School of Law
December 19, 1985

I. A BRIEF HISTORY OF ADOPTION

"The Lord hath said unto me: 'Thou art my son;
this day have I begotten thee.'" Psalm 2:7.1

With these words the psalmist declared the adoption of Israel's king as the son and
personal representative of YAHWEH his god.2 It was already an ancient theo-political
dogma. Its origin, and the origin of adoption in general, lies shrouded in the mists
of pre-history.

The earliest records of many civilizations reveal that adoption was a well-known
practice by the time that man first began to write. The oldest known codification of
law, the Code of Hammurabi which dates from approximately 2270 B.C., contained
provisions for the regulation of adoption.3 Adoption was a favorite subject in
myth.4 The Egyptian practice of adoption is witnessed in the Biblical account of the
adoption of Moses by the daughter of Pharaoh,5 and the Romans practiced adoption as
a means of insuring lineal descendants.6

In the United States, however, adoption by right of law is a relatively recent
phenomena.7 This oddity arises out of the fact that our legal system is based to a
large degree upon English common law, and the English, with their strong emphasis
upon "blood lines", made no provisions for adoption.8 This is not to say, however,
that adoption did not exist at all in early United States history.

Both the French and the Spanish practiced adoption, and early French and Spanish
settlers brought the institution of adoption with them when they came to the New
World. French and Spanish influences in states such as Mississippi and Louisiana
resulted in the presence of an American common law adoption tradition which predated
the development of American adoption statutes.9 Ultimately, these states led the way
in enacting the formal adoption statutes upon which the majority of modern American
statutory adoption schemes are based.10

While these American adoption statutes retain provisions similar to those found in
the European and ancient Roman adoption traditions, it is essential in understanding
the American adoption scheme to note that it is premised upon an additional and
novel consideration; the "best interest of the child"'.11 Unlike traditional
adoption laws, which were structured for the benefit of the adopting parents, the
American statutes purport to make the interests of the adoptee paramount.

This prioritizing of interests is significant because adoption involves four
distinct parties, 1) the adoptee, 2) the biological parents, 3) the adoptive
parents, and 4) the State. These parties may have varying interests, needs and goals.

There are over 5 million adoptees in the United States.12 Each adoptee represents a
family situation in which something went very wrong, and where the nurturing
environment which is so desirable for the rearing of a child became fractured and
unworkable.13 The primary goal of American adoption is to provide these children
with the opportunity to grow and mature in a stable home situation, and thereby
increase their chances for health, happiness, and wellbeing.

However, adoption also serves a variety of secondary purposes. It may relieve the
adoptee's biological parents of a responsibility that they are unable or unwilling
to accept. It may provide a parenting opportunity for adoptive parents who are
unable to conceive. Additionally, through the institution of adoption the state is
spared the financial burden of providing for the needs of children who might
otherwise become its wards.14 Consequently, adoption is encouraged as a means for
constructively dealing with numerous personal and social dilemmas.

Unfortunately, while adoption provides many benefits, it is seldom a cure-all.
Parties involved in the adoption process are in reality making the best out of a
difficult situation (or a number of difficult situations), and there are tensions
implicit within the process which may ultimately defy resolution. An example is
the "sealed records" controversy.

II. THE SEALED RECORDS DILEMMA

When a child is adopted, it is standard procedure for a new birth certificate to be
issued. On this new certificate the adoptee's new name appears, along with the names
of his adoptive parents. All references to the adoptee's birth name, the name of the
adoptee's birth parents and the fact of the adoption, are omitted. The original
birth certificate is then placed in a confidential court file; it is sealed and
becomes unavailable to the adoptee unless he or she is able to demonstrate "good
cause".15 When the adoption is finalized, all legal relationships between the
biological parents and the adoptee are severed, and "for all practical purposes, the
child is born again to the adoptive parents through the legal fiction of adoption."16

In theory, the adoptee (following adoption) stands in a legal relationship to his
adoptive parents equal to that which he or she would have as their biological
offspring.17 However, a growing number of adoptees are challenging the reality of
this equality.18 It is their contention that state adoption policies, which mandate
the sealing of adoption and birth records, deprive them of a right common to all non-adopted children; the right to know their biological heritage.

It is illustrative of the inherent tensions involved in the adoption process to note
that the generation of adoptees who now oppose the sealed records adoption policy
are the children of the generation of adoptive parents who pressed the legislatures
for the policy's enactment. Prior to the active lobbying efforts of adoptive parents
organizations in the 1940's, the majority of states maintained open adoption records
policies.19

It was the belief of those who proposed the sealed adoption records policy that it
served the best interest of the parties involved in the adoption process. Through it
adoptees are protected from those who might pry into the potentially embarrassing
circumstances surrounding the adoptee's birth.20 Thus, many adoptees are saved from
the stigma of bastardy. In addition, sealed adoption records serve to reinforce a
stable adoptive environment by insulating the adoptive family from intervention by
the biological parents.21 Finally, the sealed adoption records policy protects the
anonymity of the biological parents; in many cases it acts as a promise to the
biological parents that a secret and unwanted pregnancy will not become known to
their family and friends. This also benefits the adoptee by encouraging the
biological mother to choose to carry her fetus to term, rather than seek an
abortion.22

In their attack upon the policy of sealed adoption records, today's adoptees suggest
that these policy justifications are flawed, because they ignore one crucial fact;
adoptees grow up.23 Adoptees suggest that the sealed records policy fails to account
for the fact that what might be best for the adoptive child, may become
counterproductive for the adoptee when he or she is grown.

Upon becoming adults, many adoptees find that they experience a growing desire to
know more about the circumstances surrounding their birth and adoption. Adoptees
typically seek to explain this desire in at least one of three ways.

For many adoptees the knowledge that they have a biological heritage which lies
beyond their reach is a heavy psychological burden. For them the sealed records
policy becomes not a seal of safety, but a seal of sorrow.24 In their minds the fact
that their records are sealed stands between them and a resolution of their deeply
felt need to settle this question mark concerning their identity. One adoptee
reflected upon a records clerk's refusal to permit her to see her file:

"I am inside the building, I thought. I am those records
and I am sealed, buried alive. The society that withholds
those records is telling me that I have no right to myself.
Yet (the clerk) stood there casually holding my file."25

Some psychologists believe that the adoptee's inability to confront his or her
biological origins may result in severe and long lasting psychological trauma.26
Such injury may occur in spite of healthy and nurturing relationships with adoptive
parents.27 Additionally, at least one study has shown that only a relatively small
portion of adoptees become well-adjusted adults.28 It is suggested that many
adoptees who are bothered by questions concerning their biological heritage
experience a lack of personal continuity, strong feelings of isolation, and
difficulty in reaching normal identity resolution.29 On the other hand, some
authorities dispute these conclusions and assert that psychological problems
encountered by adoptees are rarely a specific outgrowth of their perceived need to
know their biological heritage.30

Though expert opinions may differ, it is undisputed that many adoptees feel a need,
even a compulsion, to discover the facts concerning their biological ancestry. For
some, this desire is heightened by pressing needs to obtain medical information.31
In most cases the medical information given to adoptive parents, and even that
contained in adoption records, is sketchy at best.32 For adoptees encountering
medical problems, this lack of relevant information can be debilitating. It makes
genetic counseling of young couples impossible when one is an adoptee, and may have
a chilling effect upon the right to procreation of those adoptees sensitive to the
possibility that they may carry recessive tendencies toward any number of
diseases.33 Many adoptees, therefore, seek access to their adoption and birth
records with the hope of alleviating their medical fears (be they imagined or real),
and moving ahead with their lives.

A final motivating factor in some adoptees' requests for access to sealed adoption
records arises out of the current state of probate law. While it is often claimed
that adoption places the adoptee in the same legal relationship to his adoptive
family as any biological offspring,34 in many states this simply is not true.
Traditionally, adoptees could inherit from but not through their adoptive parents,
and through but not from their biological parents.35 This means that the adoptee has
no right of inheritance from his or her adoptive grandparents or adoptive collateral
relatives, but may inherit from his or her biological grandparents or biological
collateral relatives.

While some states have revised their probate laws and provide a full severing of
rights between the adoptee and his or her biological relatives, and a total legal
incorporation of the adoptee into the adoptive family structure,36 most states have
not. At least twelve states allow the adoptee to inherit from either family.37 The
obvious result of this situation is that adoptees in many jurisdictions may be
prohibited from receiving their legal inheritance, because sealed adoption record
policies bar the discovery of their biological heritage.38 This implicit statutory
conflict underscores the fact that the traditional American statutory adoption
scheme did not envision a situation in which adoption records would be sealed
against the adoptee.

III. THE SEALED RECORDS CONFLICT: DEULING INTERESTS

Desires for identity resolution, medical information, and equality of inheritance,
combined with frustrations over sealed records policies, have led to a groundswell
in the growth of adoptee rights organizations across the country since 1970.39 These
organizations exist for the purpose of providing emotional and informational support
for adoptees in search of biological roots, and many are actively involved in
challenging the sealed records laws in the courts and the legislatures.40 Challenges
to the existing sealed records statutes in the legislatures have taken several forms.

Some groups have proposed that existing records laws be repealed, and replaced with
Universal Adoption Record Disclosure Laws.41 While the exact content of these
suggested laws varies, they generally provide that adoption records be sealed during
the childhood years of the adoptee, and opened once the adoptee reaches majority.
Adoptees claim that such laws would protect both the adoptive parents and the
adoptee from outside intervention throughout the important developmental years,
allowing the adoptive family time to develop strong bonds of love and affection, yet
permit adult adoptees to gain important biological information, should the need
arise.42 It is further maintained that adoptive parents should not be threatened by
these statutes, since they will have had an opportunity to create deep and lasting
relationships with their adopted children prior to the opening of the adoption
records.43 As of this writing, no state has adopted a universal disclosure law.44

A second legislative approach taken by adoptees in dealing with the issue of closed
records is to propose Limited Medical Access Laws.45 These statutes divide the
adoption records into two parts: identifying information, and non-identifying
information.46 Adoptees are given access to only the non-identifying information
upon request. Ideally, the non-identifying information portion of a record would
include the following data regarding the adoptee's biological parents: (1) age at
the time of the adoptee's birth; (2) education completed at time of adoptee's birth
and future education plans; (3) heritage background, including ethnic, race, and
religious background; (4) physical appearance, including height, weight, build, eye
and hair color, skin complexion and coloring; (5) existence of any other blood
siblings, their sexes, and ages at the time of the adoptee's placement and whether
they were surrendered for adoption; and, (6) health reports including allergies,
blood types, and known family diseases.47

While these types of statutes have been adopted by a number of jurisdiction, many
adoptees claim that they are of little benefit. Aimed at alleviating general
curiosity and providing medical history, they are usually prospective, and even when
applied retroactively, seldom contain medical information in sufficient detail, or
in necessary areas.48 Further, what may seem to be important information at the time
of adoption may prove irrelevant to an adoptee twenty or thirty years later. The
only real source of pertinent information, in many cases, is the biological parent
of the adoptee, and these statutes are of no help to the adoptee seeking to locate a
biological parent.

The final legislative prong of the attack upon the sealed record statutes is the
Adoption Registree.49 This legislation provides adoptees and biological parents the
opportunity to register with the state, indicating their desire to establish
contact. When the state receives a match between the adoptee and the biological
parent or parents, notice is sent to all parties indicating the fact, and
preparations may be made for meeting. This system is being adopted in a growing
number of states.50

The major strength of such a system is that it enables contact between the adoptee
and the biological parent only if that contact is desired. This ensures that the
biological parent's right to privacy 51 is not violated by an unexpected, and
perhaps unwelcome, adoptee. However, for some adoptees this isn't enough. In certain
situations adoptees may not know in which state they were adopted, or their
biological parents may not respond, due to ignorance of the existence of the
registree, or death. In these cases the adoptee is forced to pursue other options if
he or she wishes to continue the search.52

In addition to pursuing statutory means to unsealing records, Adoptees have
attempted to argue a number of positions in the courts in order to justify requests
for access to otherwise sealed records. In almost every instance, they have been
unsuccessful.

A number of adoptees have asserted a right to examine sealed records, on the basis
of a First Amendment freedom of information. The adoptees' argument, essentially, is
that without knowledge of their biological heritage, they are forced to remain
disoriented and insecure about their self-image and their status as full members of
society. Therefore, they claim, the sealed adoption record laws interfere with a
constitutionally guaranteed right to receive important information.53 This claim
assumes that the Constitution seeks to establish an atmosphere which promotes
a "'marketplace of ideas",54 allowing the free exchange of information, and enabling
every citizen to participate knowledgeably in government and society.55

Thus far, however, the courts have been unwilling to extend freedom of information
protection to adoptees requesting access to sealed records. Take for example, In re
The Application of Annetta Louise Maples,56 where the Missouri Supreme Court
balanced the interests of the adoptee against the interests of the biological
parents in privacy, and the state's interest in promoting the adoption status quo.
The adoptee lost.

Freedom of speech presupposes a willing speaker,57 and the courts have been
reluctant to allow the right of free speech to be extended in order to compel an
unwilling speaker to divulge information.58 In denying adoptees any right to receive
information from sealed records, the states have assumed (correctly or incorrectly)
that biological parents are unwilling speakers.59 On this basis the court in Mills v
Atlantic City Dep't of Vital Statistics,60 ruled that an adoptee's first amendment
right to receive vital information was not so absolute as to overcome the biological
parent's right to privacy, even where the biological parent had expressed no desire
to exercise the privacy right. This judicial presumption of an intent of non-
disclosure on behalf of the biological parents is, in effect, irrebuttable.61 The
adoptee would not be asking to see the sealed records if he or she knew the
whereabouts of the biological parent, and not knowing the whereabouts of the
biological parent, the adoptee has no means of ascertaining whether the parent is
open to the proposed disclosure. This Catch-22 destroys any value that the freedom
of information argument might have as a means for an adoptee to gain access to
sealed adoption records.

Adoptees have also attempted to gain access to sealed records on the basis of a
Ninth Amendment substantive due process right. In these cases, adoptees have
asserted that the constitution guarantees all persons a number of unenumerated
substantive rights, and that among these is the right to know one's biological
heritage.62 Adoptees argue that this right falls within the constitutionally
guaranteed right of privacy.

However, in Roe v Wade the Supreme Court indicated that the guarantee of personal
privacy would only extend to those rights which were deemed to be "fundamental"I.63
State courts have uniformly failed to find that an adoptee's right to knowledge
regarding his or her biological heritage is "fundamental".64 If whatever right the
adoptee might have to this knowledge is not fundamental, the states need only
demonstrate that the challenged statute bears a reasonable relationship to a
permissible state objective.65 This is easily done, because the legislatures base
sealed record statutes upon their evaluation of these statutes as the best mechanism
for protecting the parties to adoption.66 Consequently, Ninth Amendment due process
challenges have been useless to adoptees seeking sealed records information.

In a number of cases, adoptees have attempted to overcome sealed records statutes by
asserting that they violate Fourteenth Amendment equal protection provisions.
Adoptees argue that they are discriminated against on the basis of their adopted
status, since all non-adoptees may freely view their original birth certificates.67
However, this constitutional argument has also proved less than convincing to the
courts.

The Fourteenth Amendment does not require that everyone be treated equally; it only
requires that state actions which discriminate be reasonable.68 Only when the
discriminatory action affects a fundamental right,69 or a suspect class,70 will the
court evaluate its reasonableness using "strict scrutiny".71 Adoptees' attempts to
utilize a Fourteenth Amendment argument have failed because they are unable to
establish that they are a "suspect class" identifiable by an "immutable
characteristic determined solely by an accident of birth", and historically
discriminated against.72 In Alma Society, Inc. v Mellon,73 and Mills,74 the courts
concluded that the status of the adoptee was not an accident of birth, but rather a
statutory act of the state, and that adoptees are, therefore, not a suspect class.
Since adoptees are not a suspect class, state discriminatory actions against them
need only be shown to have a "substantial relation" to a permissible state goal.75
As with due process violations, equal protection violations by the states are easily
justified; they are tied to the state's attempt to further the institution of
adoption, by protecting the privacy of the parties.76 Hence, Fourteenth Amendment
arguments have failed to aid adoptees in their efforts to, obtain access to sealed
records.

In contrast to the Constitutional attacks upon sealed records statutes by adoptees,
heretofore outlined, adoptees have also attempted in several cases to use the sealed
records statutes themselves to justify receipt of the desired information. Most
adoption statutes contain provisions which allow adoptees access to sealed files if
they can demonstrate "good cause".77 Many adoptees have attempted to utilize these
provisions to gain entrance to their files; a few have been successful.

Generally, it is difficult for an adoptee to demonstrate sufficient "good cause'" to
justify the unsealing of his or her records.78 Curiosity will not suffice; there
must be a compelling need. In addition, the court will normally inquire into the
effects which disclosure will have upon the other parties to the adoption, and weigh
these effects against the adoptee's need.79

Courts have sometimes found "good cause" to exist in the following situations: 1)
where religious beliefs require an individual to trace blood relatives;80 2) where
inheritance rights are at issue;81 3) where there is a strong showing that the
adoptee is suffering mental trauma as a result of the information being withheld;82
and, 4) where there is a pressing medical need and locating the biological family of
the adoptee is likely to be beneficial;83 It is important to note, however, that
such cases are of limited precedential value, since the decision to open the records
or leave them shut is supposed to be made on a case-by-case basis.84

Traditionally, the burden to show "good cause" has been upon the adoptee. However,
in an unprecedented decision, the New Jersey court in Mills85 propounded an approach
in which the burden for showing good cause shifts from the adoptee to the biological
parents once the adoptee reaches the age of majority. This effectively creates a
presumption of accessibility for the adult adoptee wishing to see his or her
records. The presumption of access would operate to allow the adoptee to open the
records, unless the biological parents were able to establish good cause for denying
access.

While Mills was touted as a landmark case by many adoptees' rights groups when it
was released in 1977, as of 1985 no other court has joined the Mills court in
adopting a shifting burden approach. As a rule, the weighty burden of showing good
cause remains with the adoptee, and prohibits this type of action from being of any
benefit to the majority of those seeking access to sealed adoption records.

IV. SUMMARY AND CONCLUSIONS

In a nutshell, it is fair to say that the statutory structure of the adoption
process, and the judicial interpretations relating to that process, effectively
insure that the vast majority of American adoptees have no access to the records
relating to their adoptions. The adoptee has no guaranteed right to know his or her
origins. This situation results in large measure from the efforts of adoptive
parents organizations in the 1940's. As a result of lobbying pressures, the
traditional American policy of open adoption records was reversed in all but two
states. The rationale behind closing the records was that it would protect the
process and the parties, and encourage adoption, by insulating: the child from the
stigma of bastardy; the biological parents from possible embarrassment; the adoptive
parents from intrusions; and, the state from the need to build more orphanages.

In the 1970's, adoptees, frustrated over their inability to obtain information
concerning their biological roots, began to ban together for support, and to
challenge the sealed records policies of the states. They justified their actions by
pointing out needs for medical information, identity resolution, equality of
inheritance rights, and release from mental trauma. Adoptees also pointed to other
countries having open records policies, for proof that such policies do not damage
the adoption process. Attacks upon the sealed records statutes by these groups have
done little to change the status quo. Efforts to introduce open records statutes
have failed across the board. Attempts to get sealed records statutes declared
unconstitutional have been fruitless.

Adoptees have, however, won minor victories through: 1) the introduction of statutes
allowing limited access to non-identifying sealed record information; 2) the
establishment of voluntary contact registrees; 3) and one New Jersey court decision
which called for a dramatic change in the presumptions regarding enforcement of
sealed records statutes (a shifting of the burden of demonstrating good cause as to
why the file should be opened or sealed from the adult adoptee to the biological
parent). The effect of these victories has, however, been slight. For most adoptees
wishing to gain information about their biological roots, the only really viable
means is costly and time consuming private investigation.

What should be done?

In approaching this question, it is essential to consider the nature of adoption as
an institution. It is a useful, but imperfect, tool for coping with a number of
social ills. It begins in personal tragedy (death, illegitimacy, poverty, sterility,
etc.), and attempts to bring some measure of order and sanity out of chaos and
confusion. It involves a number of parties, all of whom may have conflicting
interest. Like any institution, it responds most in its resolution of these
differing interests to the party with the loudest voice and the biggest clout. For
the past thirty years this has meant that the interests are weighted in the favor of
the adoptive parents. This is not necessarily justice; it is reality. Given the
inherent tensions within the adoption process, this writer sees very little hope of
either the courts or the legislatures coming to any perfect solution. No matter how
you cut it, someone's rights (needs/desires/hopes/fears?) will be compromised.

For now, the rights of the adoptee occupy the position of least power and
importance. Given the history of litigation in this area, it is unlikely that
adoptees will better their position in the courts. Therefore, the logical step for
those interested in supplanting the sealed records statutes is to pressure the
legislatures. As the stigma of bastardy continues to lessen, and the number of
adoptee yuppies increases, the odds are that the sealed records statutes will exit
just as they entered; by the power of the purse, and the pressure of the polls.

V. PERSONAL REFLECTIONS

I can't help adding a bit of an unorthodox, personal note, as an adoptee. Throughout
this paper I have tried to make my analysis of the issues and the law as unbiased as
possible. In looking back over it, I note that my effort at objectivity was somewhat
less than a complete success (I also note, as I hope you have, that the paper would
be over the page limit minimum even without this last section). Be that as it may, I
would now like to offer my completely biased, and subjective opinion (as an
interested party), as to what the best resolution of the sealed records conflict
would be.

Let me suggest a statutory change which would parallel the judicially created law in
Mills (the New Jersey case). I would seal the records following adoption, but inform
all parties that, barring intervention by the biological parent(s), or the adoptee,
the records will be unsealed when the child reaches age 21. The biological parents
and the adoptee would be given the option of allowing the records to open at that
time, or of giving prior-notification (at some time between the adoptee's 18th and
21st birthdays) of a desire not to have the records opened. If the biological parent
(s) choose to file to keep the records closed, the adoptee would be allowed to
challenge the decision in court, on a "good cause" basis. The decision
concerning "good cause" would be made strictly on the merits, with no presumptions.

I believe that such a scheme would have the following benefits.

It would ensure that information was not kept from adoptees or biological parents by
accident. Only an affirmative indication by either party that they did not want the
records open would bar access. As the statutes now stand, both the adoptee and the
biological parent(s) may desire access to the records, but neither may get it or
give it.
It would ensure that the decision regarding access would be made at a time
disassociated from the actual adoption. I believe that this would give the parties
an opportunity to make these important decisions after careful and objective
reflection. As the situation now stands, biological parents often make irrevocable
decisions concerning access to their children's lives and futures under the stress
of an unwanted pregnancy. It is reasonable to believe that their feelings concerning
disclosure might be different in 20 years. The fact that this is true in many cases
is made evident by the existence of birth parent search groups whose aim is to help
biological parents locate the adoptees they gave up years before.
In the end, this proposal would also allow disagreements between biological parents
and adoptees, as to the opening of the records, to be settled by the courts on the
merits of the particular situation. I would hope that this measure would not often
be necessary. I suspect that if one party knows that the other does not wish the
record open, he or she will be less likely to sue than if the party blocking the
access was the state.
The major drawback that I can see in a system like this is that it provides no room
for input by the adoptive parents. I confess that this is intentional on my part. It
seems to me that they will have had eighteen to twenty-one years in which to provide
input. If the foundations for a lasting relationship have been laid during those
years, it seems unlikely that it will be adversely affected by the adoptee obtaining
access to his or her records. If that foundation is not built by then, I question
whether it ever will be.

Finally, let me simply share some thoughts as to how it feels to be an adoptee (I
suppose this is justified under the doctrine of equity).

The desire to know the circumstances surrounding one's adoption, and the desire to
discover who one's biological parents are and what they look like, is a strange
thing. As far as I can tell, it has nothing to do with being unhappy or maladjusted.
It certainly does not grow out of a lack of love for one's adoptive parents. It just
is.

For me personally, it has never been debilitating. I have never felt an unyielding
compulsion to search out my roots. I don't experience a sense of aimlessness and
isolation. The desire to know doesn't bowl me over. It just sits there, quietly,
waiting for me to notice.

I have gone for days, weeks, months (years?) at a time without even remembering that
I'm adopted. But, then in some quiet moment (maybe when I'm upstairs at night
tucking in my two-year-old), I wonder, "who do I look like" (who does she look like)?

When I think about it objectively, it really shouldn't matter. Who cares who they
were, or what they look like? I am me. I am all the people I have known, and loved,
and learned from. Knowing what they are won't make me more or less than I have
become. But, I would like to know.

Three years ago, before I had ever heard of sealed records statutes, I sent away to
Colorado for my birth certificate. They sent me back a copy of the post-adoption
certificate. No news there.

I asked my parents about the adoption, and learned from my mother that my birth name
was Craig Carey. Dad said all the he knew was that they got me from a "bunch of
nuns". I wonder how many Carey's there are in the U.S.?

Some days I think that I should contact an adoptee support group. Maybe they could
show me how to go about searching. Would it really be worth the effort? Maybe
tomorrow.

NOTES

1. Adoption formula used by the Psalmist in a coronation hymn.

2. Bright, THE HISTORY OF ISRAEL 562 (1967).

3. The Code of Hammurabi reproduced in Kocurek & Wigmore, EVOLUTION OF LAW, SOURCES
OF ANCIENT AND PRIMITIVE LAW 589 (1964), states:

Section 185: If a man take a child in his name, adopt and rear him as a son, this
grown-up son may not be demanded back.

Section 186: If a man adopt a child as his son, and after he has taken him, he
transgress [sic] against his foster-father; that adopted son shall return to the
house of his own father.

4. See: Donovan, infra, note 8, at 277.

5. Exodus 2:1Off.

6. H. Clark, THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES 602 ¢1968). The
Romans had two types of adoption: adoptis which was a court order regulating the
transfer of parental rights over children, and adrogatio which was used in the
adoption of adults. Modern adoption schemes are based upon the adoptis tradition.

7. Prager & Rothstein, Note: The Adoptee's Right to Know His Natural Heritage,
N.Y.L. Forum 157 (1975). This article contains a listing of every state adoption
statute, and indicates that the bulk of these were enacted between 1900 and 1929.

8. Donovan, Domestic Relations: Balancing State Law Assurances of Confidentiality In
Adoption Proceedings Against First and Sixth Amendment Guarantees, 21 Howard Law
Review 277 (1978).

9. It is often stated that there is no American common law adoption tradition, and
that adoption is strictly a creature of statute in the United States. 2C.J.S.
Adoption 5 (1972). This is not true. In addition to the fact that adoption was
practiced prior to statutory justification in those states influenced by French and
Spanish culture, adoption was common in the colony of Massachusetts, and the first
adoption statutes were actually codification of American adoption practices dating
from as early as 1693. Heyden, Seal of Sorrow, 9 Human Rights 28 (1981).

10. Gaylord, The Adoptive Child's Right to Know, Case and Comment, March-April,
1976, at 54. The state of Mississippi passed the first American Adoption Statute in
1846.

11. Donovan, supra, at 278. The "best interest of the child" standard in family law
was first propounded by Justices Brewer and Cardozo. Justice Brewer, while sitting
on the Supreme Court of Kansas, reversed the precedential stand that custody issues
should be left to the discretion of the parents. Chapsky v Wood, 26 Kan. 650 (1881).
Justice Cardozo adopted this standard in Finlay v Finlay, 240 N.Y. 429; 148 N.E.2d
624 (1925).

12. N.Y. Times, Jan. 15, 1976, sec. 6 (Magazine) at 15. The over 5 million adoptees
make up roughly 2.5% of the total population of the United States. If one adds to
this the biological parents, the adoptive parents, the grandparents (adoptive and
biological), and the siblings of the adoptees, the figure rises to 57.5% of the
total United States population that has been directly effected by adoption.

13. Of the more than 5 million adoptees in the United States, over 60% were born out
of wedlock. The balance become available for adoption due to parental death,
abandonment, financial difficulties, or intervention by the state. Hanley,
reasonable Approach to the Adoptee's Sealed Record Dilemna, 2 Ohio N.N.L.R. 550
(1975).

14. In re Anonymous, 590 N.Y.S.2d 779, 781 (Sur. Ct. 1976).

15. Unlike many areas of law, adoption is governed by state law rather than federal.
The general statutory practice followed in forty-eight of the States (excluding
Alabama and Kentucky) closes the adoption and birth certificate files to adoptees
and makes it virtually impossible for them to obtain information concerning their
biological parents, even after the adoptees reach the age of majority. An exception
is made for adoptees who are able to demonstrate "good cause", however, this
standard is very exacting and is left within the discretion of the court. The
adoptee must show a genuine need for the information, not simply a desire. Sparks,
infra, note 16, at 578, 589. In addition, the effects of disclose upon third parties
is given great weight, and an adoptee's showing that his or her mental well-being is
in question may be allowed access to the records if the biological parents are
deceased, but will probably not be allowed access if they are living. Lupack, infra,
note 17, at 216. An example of this may be found in The Michigan Adoption Code sec.
710.67.

16. Sparks, Adoption: Sealed Adoption Record Laws -Constitutional Violation or a
Need for Judicial Reform?, 55 Oklahoma Law Review 575 (1982).

17. Lupack, Sealed Records in Adoptions: The Need for Legislative Reforms 21
Catholic Lawyer 211 (Summer 1975),

18. Hanley, supra, at 542. Lasniks A PARENT'S GUIDE TO ADOPTION 11 (1979).

19. Bradbury, Show and Tells 4 Family Advocate 14 (1981).

20. Over 60% of American adoptees were illegitimate at birth. Hanleys supra, at 550.

21. In re Roqer B., 418 N.E.2d 751, 754 (Ill. 1981) (adoptive parents should be
given opportunity to create stable family relationship). In re Saqe, 586 P.2d 1201,
1205 (Wash. Ct. App 1978).

22. Matter of Application of Anonymous, 89 Misc.2d 152; 590 N.Y.S.2d 799 (Sur. Ct.
1976). Bradbury, supra, at 19.

23. Sparks, supra, at 579.

24. Heyden, Seal of Sorrow, 9 Human Rights 28 (1981). Many adult adoptees report
that they experience great curiosity concerning the circumstances of their adoption,
why their biological parents gave them up and what their biological parents look
like. For some adoptees these questions become consuming, and an inability to answer
them may result in psychological trauma. For more on this see the discussion at
notes 26 through 29.
25. Ricciardello, Adoptees' Right to Identity - A Ninth Amendment Approach to the
Sealed Birth Certificate Statute, 27 South Dakota Law Review 122, 15& (Winter 1982).

26. Sorosky, Baran & Pannor, Identity Conflicts in Adoptees, 45 American Journal of
Ortho-Psychiatry 18, 18 (Jan. 1975). A number of studies suggest that adoptees are
more prone to psychological maladjustment than are children raised by their
biological parents. Goodman, Silberstein & Mandell, Adopted Children Brought to
Child Psychiatric Clinic, 9 Archives Gen. Psychiatry 451 (1965). Simon & Senturia,
Adoption and Psychiatric Illness, 122 American J. of Psychiatry 858 (1966). Simmons
& Work, Emotional Problems in the Adoptee, 10 Archives Gen. Psychiatry 109 (19&4).

27. Sorosky, supra, at 24.

28. Lasnik, supra, at 94. The research for this study was compiled by Margaret
McDonald Laurence in Washington, D.C. and Chicago. She concludes that anxiety
over "blood ties,' is a major inhibitor in the psychological development of many
adoptees, and that a failure to resolve questions concerning birth and biological
history often leads to an inability to achieve identity resolution.

29. Benet, THE POLITICS OF ADOPTION 5 (1976).

30. Sorensen v Churchill, 212 N.N. 488 (S.D. 19 ),

31. Bradbury, supra, at 16.

32. Green, Do the Adopted Have a Right to Know?, I Family Advocate 24, 28 (1979).
The scarcity of significant medical information in adoption and birth records often
means that an adoptee's access to these records is only a means toward the end of
actually contacting his or her birth parents in order to obtain more specific
information.

33. Sparks, supra, at 58&.

34. 2C.J.S. Adoption sec. 155 (1972). Lloyd, Sealed Adoption Records: The Right
to "No!", I Legal Medicine 292, 294 (1979).
35. 60 ALR3d 651. 2C.J.S Adoption sec. 140 et. seq. (1972).

36. For an example of this see the Michigan statutory scheme at MCLA 700.110.

37. Bradbury, supra, at l&.

38. While this motivation for probing a biological history may be open to criticism
as self-serving, one might question whether the average person confronted with a
sudden and unexpected legacy from a distant collateral relative, or "Dutch Uncle",
would refuse the gift on the grounds that they didn't know the giver.

39. Giltin, Attempts to Resolve the Conflict, 4 Family Advocate 18 (1981). Among the
leading organizations dedicated to advocating the adoptee's right to adoption
information are The AsSociation for the Protection of the Adaptive Triangle,
Concerned Birth Parents United, and the Adoptees liberty Movement Association (ALMA
which claims a membership of over 10,000). It should be noted that while the focus
of this paper is upon adoptees and their concern with sealed record statutes, there
is also a growing movement among biological parents (especially birth mothers) aimed
at challenging the validity of sealed records laws. An example of efforts in this
direction may be seen in the organization Concerned Birth Parents United (mentioned
supra). Many birth parents who have given up children for adoption express strong
desires and needs to resolve lingering concerns and guilt over the wellbeing of
their adopted children. For them sealed adoption record laws mean that they will
never receive answers to these intense personal questions. Pannor, Sorosky & Baran,
Opening the Sealed Record in Adoption - The Human Need for Continuity, 51 Jewish
Communal Service 188, 194 (1974).

40. Glitin, Supra, at 19.

41. Lloyd, Supra, at 293.

42. Bodenheimer, New Trends and Requirements in Adoption Law and Proposals for
Legislative Change, 49 So. Cal.L. Rev. 16 (1975).

43. Many adoptive parents fear that contact between adult adoptees and their
biological parents will damage the relationship between the adoptive parent and the
adoptee. Consequently, adoptive parents often see attempts by adoptees to contact
their biological parents as betrayals, or blame themselves for somehow failing to
provide the adoptee with enough love. Lloyd, supra, at 297. However, most adoptees
claim that searches for biological parents do not reflect a lack of love for their
adoptive parents, and at least one study has shown that relationships between
adoptive parents and adoptees are usually strengthened once the adoptee is able to
confront the past and resolve unanswered questions. Levin, The Adoption Trilemma;
The Adult Adoptee's Search for His Ancestral Identity, 8 Balt. L.Rev. 496, 504
(1979).

44. As mentioned in note 15, supra, both Alabama and Kentucky have open records
statutes, however, these statutes pre-date the current attempts to implement open
record legislation. These states were unwilling to enact Closed records statutes in
the 1940's when adoptive parents groups were pressing for a change from the
traditional open records policy to a closed records standard. See note 19, supra.

45. Rucker, Texas Adoption Laws and Adoptees' Rights of Access to Confidential
Records, 15:155 St. Mary's Law Journal 180 (1985).

46. Tartanella, Sealed Adoption Records and the Constitutional Right of Privacy of
the Natural Parent, 54 Rutgers L.Rev. 451, 486 (1982).

47. Rucker, supra, 180. For an example of such a statute see the Michigan Adoption
Code sec. 710.25 et. seq.

48. Green, supra, at 28.

49. For an example of such a statute see the Michigan Adoption Code sec. 710.68.

50. At least twenty-five states have adopted similar measures. Gitlin, supra, at 18.

51. Roe v Wade, 405 U.S. 458 (1972). The U.S. Supreme Court has defined the "right
to privacy" as the most "fundamental" of all human rights.

52. While this paper focuses upon the legal issues relating to the sealed records
statutes, it should be noted that most adoptees who search for their biological
parents ultimately resort to privately funded investigations. Lacking access to
their birth and adoption records they often hire persons who specialize in such
searches, or conduct the searches themselves. This is not illegal, but it may be
very expensive and time consuming. It is not unheard of for adoptees to invest as
much as $10,000 in a search for a biological parent. Bradbury, supra, at 14. It
should also be noted that not every reunion between adoptees and biological parents
proves to be pleasant. In one study in which adoptees were interviewed after having
made contact with a biological parent, 80% reported that they had found the
experience "helpful" or "of some help", but 20% were ambivalent or wished that they
had not made the contact. Triseliotis, IN SEARCH OF ORIGINS: THE EXPERIENCES OF
ADOPTED PEOPLE 39 (1975).

53. Amendment I of the U.S. Constitution reads in part, "Congress shall make no
law...abridging the freedom of speech, or of the press."

54. Chase & Ducat, CONSTITUTIONAL INTERPRETATION 1165 (2d ed. 1979).

55. In Red Lion Broadcastinq Co v. FCC, 395 U.S. 567, 590 (1969), the Supreme Court
held that the First Amendment protects not only the right to give information, but
also the right to receive it. See also, Stanley v Georgia, 394 U.S. 557 (1952).

56. 563 S.W.2d 760 (Mo. 1978}. For a similar decision see, Application of Paul
Robert Gilbert, 563 S.W.2d 768 (Mo. 1978).

57. Virqinia State Bd. of Pharmacy v. Virqinia CitizensConsumer Council, 425 U.S.
748, 756 (1976).

58. Gotkin v Miller, 379 F.Supp. 859, 862 (E.D.N.Y.), aff'd, 514 F.2d 125 (2nd Cir.
1975).

59. There is evidence that some biological parents fear contact from adoptees. In
situations of illegitimacy it may be devastating for a birth parent to be suddenly
confronted by an adoptee, especially if the fact of the birth has been kept secret
from a spouse and family. Pochin, WITHOUT A WEDDING-RING: CASEWORD WITH UNMARRIED
PARENTS 117 (1969). However, studies show that many biological parents desire such
contacts. Sorosky, supra, at 6. Florence Fisher, president of ALMA (see, note 59)
claims that in the over 600 reunions between adoptees and biological parents in
which she has been involved, all but three of the biological parents indicated that
they wanted to be contacted by the adoptee. People, Aug. 18, 1975, at 25.

60. 572 A.2d 646, 652 (N.J. Super. Ct. Ch. Div. 1977).

61. Willis, The Current Status of the-Right of Adults Adoptees to Know the Identity
of Their Natural Parents, 58 Wash. U.L.Q. 677 (1980).

62. The argument here is very similar to that made by the petitioner in Roe v Wade,
410 U.S. 115 (1973). Adoptees essentially are suggesting that the substantive right
to privacy be extended to include the adoptee's right to view birth records, because
the ability to make important life decisions (procreation, marriage, etc.) may be
greatly effected by the information gained from the records. Sparks, supra, at 58&.
Klibanoff, Genealogical Information in Adoption: The Adoptee's Quest and the Law, 11
Fam. L.Q. 185 (1977).

63. Id., at 152. The court defined fundamental rights as those either explicitly
found within the constitution, or implicit within the concept of ordered liberty.
See also, Snyder y Massachusetts, 291 U.S. 97, 105 (1954).

64. In re Roger B., 418 N.E.2d 751, 755 (Ill. 1981). Mills, supra, note 60, at &50.
In re Linda F.M., 409 N.Y.S.2d 658, 644 (Sur. Ct. 1978).

65. Belle Terre v Boraas, 416 U.S. 1,8 (1974). In this famous zoning case, the
Supreme Court indicated that their method for evaluating state actions which
infringe upon non-fundamental rights would be to apply a means/ends analysis to the
action. If the means is reasonable and the end permissible, then the state action
will not be overruled. This basically means is that the court will not sit in
judgment on the states' choice of methods to accomplish state goals unless the
methods are completely unreasonable.

66. See cases, supra, note 64.

67. Klibanoff, supra, at 190.

68. Brite, Discovery Rights of the Adoptee - Privacy Rights of the Natural Parent: A
Constitutional Dilemma, 4 U. San Fern. V.L. Rev, 65,68 (1974).
69. See, note 65.

70. Frontiero v Richardson, 411 U.S. 677, 685-687 (1975).

71. When applying strict scrutiny, the court will examine the state's justification
for the discrimination, and it will only be allowed if the state is able to
demonstrate that it is a compelling reason. Gills, supra, at 655. Opponents of
sealed records laws suggest that they would never pass a strict scrutiny test,
because it can be demonstrated that they do not particularly protect the adoption
process. Countries and states having open records laws (eg. Finland, Israel,
Scotland, Alabama, Kentucky) have found that the open records policies do not
demonstrably effect the integrity of the adoption process. Heyden, supra, at 50.
72. See, note 70.

73. 601 F.2d 1225 (2d Cir.), cert. denied, 444 U.S. 995 (1979).

74. Supra, at 655.

75. This standard is illustrated in Reed v Reed, 404 U.S. 71 (1971).

76. See cases, note 64.

77. Giltin, supra, at 18.

78. See, note 15.

79. Id. (1969). However, in San Antonio School Dist. v. Rodriguez, 411 U.S. I
(1975), the court limited this freedom by stating that while citizens are guaranteed
a freedom of speech, they are not necessarily guaranteed the most effective medium
of speech.

80. In re Gilbert, 565 S.W.2d 768, 770 (Mo. 1978).

81. Massey v Parker, 569 So.2d 1510 (La. 1979). Chambers v Parker, 349 So.2d 424
(La. App.'1977), cert. denied, 351 So.2d 170 (La. 1977). Kirsch v Parker, 585 So.2d
584, 587 (La. 1980).

82. Mills, supra, at 655. In re Anonymous, supra, at 782.

83. Chattman v Bennett, 595 N.Y.S.2d 768 (N.Y. App. Div. 1977). Mills, supra, at
655. In re Female Infant, 5 Fam. L. Rep. (BNA) 2511 (1979),

84. In re Spinks, 252 S.E.2d 479, 482 (N.C.Ct. App.1977).

85. Supra, at 654.

Credits: Douglas S. Loomer