Elizabeth Samuels Testimony

Testimony of Elizabeth Samuels in support of New Hampshire SB 335

1420 North Charles Street

Baltimore, MD 20910

April 6, 2004

Representative Edward P. Moran

Chairman

Children and Family Law

New Hampshire House of Representative

Concord, New Hampshire

Re: Hearing on Senate Bill SB 335; Tuesday, April 6, 2002

Dear Chairman Moran and Members of the Committee,

Thank you again for the opportunity to testify on this bill and to submit written comments after the hearing.

I am an associate professor at the University Of Baltimore School Of Law, where I teach courses in the areas of constitutional law and family law.� I have conducted extensive research on the legal history of adoption records and have published the first and only comprehensive article about this little known legal history.� The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records, 53� Rutgers L. Rev. 367-437 (2001).� I attach an �op ed� piece summarizing this work, which appeared in The Washington Post.

I am writing the Committee to offer brief comments in writing about the legal history of adoption records, history that I hope the Committee will bear in mind and that I believe lends support to support to the passage of Senate Bill 335.�

When adoption records around the United States were closed to inspection by the parties to the adoption as well as the public, they were closed to protect adoptive families from possible interference or harassment by birth parents, not to protect birth parents� privacy.� Adoption laws, from the beginning to the present, have not provided birth parents with a guarantee of lifelong anonymity.� As a governor�s commission in my state found in 1980, lifelong anonymity was not offered to birth mothers; it was imposed upon them.

In the 1940s and 1950s, many states followed the recommendation of adoption and vital statistics experts to make adoption court records and original birth certificates generally available only by court order, but to keep original birth records available on demand to adult adoptees.� This was the recommendation of the first Uniform Adoption Act, promulgated in 1953.�The position of the United States Children�s Bureau was that an adopted adult has a �right to know who he is and who his people were.�� Despite the experts� recommendations, many states did begin to close original birth certificates to adult adoptees as well as to all other persons.� By 1960, 26 states had done so, although in several of those states, court records remained available after that date to either adoptive parents or to adult adoptees.� Even in the states in which access to both court and birth records became available only by court order, the reason given for closing records to the parties was the need to protect adoptive families from birth parents, not to protect the privacy of birth parents.�

Of the states that in 1960 still explicitly recognized adult adoptees� right to original birth certificates on demand, four states closed the original birth records in the 1960s, six states closed them in the 1970s, and seven more did so only after 1979.� New Hampshire law sealed the birth records in 1973.� (Since 1990, when Alabama closed these records, Alabama, Oregon, and Tennessee have again made records available to adult adoptees on demand.)� In Alaska and Kansas, the records have never been closed, remaining available on demand, and in South Dakota they have remained available on demand to a court.

During the years states began closing birth records to adult adoptees, did birth mothers seek to keep their identities forever unknown to their children?� The evidence from my research is that birth mothers who sought confidentiality sought to conceal their pregnancies from their parents, or from other members of their communities, rather than to conceal their identities forever from their children or to foreclose for themselves any chance of learning how their children fared in life.�

As the governor�s commission in my state found in 1980, the birthmother �had no choice about future contact with her relinquished child;� �[s]ecrecy was not offered her, it was required . . . as a condition of the adoption.�� This historical account is consistent with the common understanding today that many birth parents are more open to the idea of placing their children for adoption if there will be some degree of openness in the adoption arrangements.� It is also consistent with the evidence that opening records leads to neither increased abortion rates nor decreased adoption rates, and may in fact have just the opposite effects.

This historical account of the reason for closing records to the parties to adoption is also consistent with what studies and surveys conducted since the 1980s have shown about the attitude of birth parents toward providing adult adoptees with access to birth records.� Overwhelmingly large majorities of birth parents, from more than 85 percent �����to more than 95 percent either do not oppose, approve of, or actively support adult adoptee access to original birth certificates. �Many birth parents as well as adult adoptees spend years, and considerable sums of money, searching for information.� While many birth parents and adult adoptees are successful in their searches for information, as countless newspaper and television stories attest, some adult adoptees who search for information remain unsuccessful and frustrated because they lack access to their original birth records.

In any event, the laws sealing court and birth records have never guaranteed lifelong anonymity for birth parents.� In virtually every state, from the beginning to the present, adoption records have been accessible by court order without notice to or participation by birth parents.� It has typically been up to the adoptive parents, not the birth parents, whether to change the child�s name from the name on the original birth certificate.� In independent or private adoptions, adoptions not arranged by agencies, the adoptive parents� lawyer or the adoptive parents themselves typically have documents that identify the birth mother or the birth parents.

States� legal systems in which adult adoptees have access to their original birth certificates have been operating successfully, including those systems in which records have always been open and those in which formerly closed records have been opened to adult adoptees.

Sincerely yours,

Elizabeth J. Samuels

Associate Professor of Law

University of Baltimore School of Law