TESTIMONY OF JAMES M. HAMILTON
H.F. 848
BEFORE THE HOUSE HEALTH AND HUMAN SERVICES POLICY
COMMITTEE, MARCH 14, 2013
Madame Chair, committee members, my name is James M. Hamilton. I am here today as both an adoptive father and an attorney, to ask you to approve HF 848 as introduced and to send it to the floor with your recommendation that it pass.
As an adoptive father, I have spent a considerable amount of time over the past 20 years educating myself on the issues faced by adoptees and their families, biological and adoptive. It was early in that process that I first learned of the existence of sealed birth certificates. Frankly, it had never occurred to me when my son was adopted that his original records might be
withheld from him by the state.As an attorney, the idea of sealed records appalled me. What possible justification could there be for treating adult adoptees any differently than the rest of society? I’ve not found any.
Let me begin with a bit of history.
Every birth in Minnesota is memorialized by a birth certificate. A second birth certificate is issued for any minor adopted in Minnesota. Since 1917, Minnesota has sealed the original birth certificates of those born and adopted in this state. Initially, the information was locked away only from the general public. Over the years, however, the law was changed to prohibit anyone from seeing the original birth certificate, parent or offspring, adult or child. Under current law, some adult adoptees have access to their original birth certificates, some don’t. It all depends upon when they were born and whether one of their biological parents has told the state not to release that information to them.
The Legislature last considered correcting this injustice in 2008. That bill would have changed the situation slightly, allowing any adoptee at least 19 years of age to obtain an uncertified copy of his or her original certificate upon request, provided that one of the birth parents had not already vetoed the adoptee’s right to that information.
The 2008 bill was vetoed and rightfully so. Neither the existing law, nor the vetoed bill makes sense to this adoptive father. Why my son should be denied the right to obtain a copy of his original birth certificate from the state, while I have the absolute right to my own, is a mystery to me. Both of our births were public events, like that of virtually every other person in this state. Yet, the Legislature decided decades ago that some adults in this state should be denied access to this most fundamental personal information: who they are and where they came from. No one should have the right to tell the state whether my son may have access to this information. Yet our current law and the failed attempt to modify it placed that right in the hands of the man and woman who conceived him. Why? Because he was adopted after being born.
Had he been placed in foster care, he would have the same rights I do. Whether he was born inside or outside of marriage, he would have the same rights I do. Whether he had been raised by one parent or two, he would have the same rights I do. But because he was adopted, the State of Minnesota has granted either of his biological parents the power to deny him the right enjoyed by every other non-adopted person in Minnesota: the right to know from whence he came.
The legal argument for opening these records is very straightforward: every citizen should have the same right to access government held data on himself or herself. Period.
What are the legal arguments against opening these records?
Some contend that adoptees should not have unconditional access to their original birth certificates because birth parents were in some way promised that their identities would be forever secret. Yet, no Minnesota statute ever has made such a promise. The only two courts in this country ever asked to rule on that proposition have held to the contrary. See, Jane Does 1 et al v. State of Oregon, http://www.publications.ojd.state.or.us/docs/A107235.htm, December 29, 1999 (rejecting claims that an Oregon open records law violated privacy and confidentiality rights guaranteed by Oregon’s Constitution and state and federal guarantees against impairment of contract) ; Doe v. Sundquist, 106 F3d 702, 705 (6th Cir), cert den 522 US 810 (1997) http://caselaw.findlaw.com/tn-supreme-court/1079339.html, (rejecting similar claims).
Some may contend that Minnesota law is different, because we have permitted a birth parent to direct the state not to disclose the original birth certificate. They may even claim that permitting release of that document over their objections constitutes an invasion of their right of privacy.
Let’s consider those arguments for just a moment. A right is universal. A privilege is permission granted to a limited class of people. What our current law has offered biological parents is a privilege. When the state grants a privilege, it may modify or revoke that privilege. We see this principal in operation in every session, as laws are enacted changing the age and conditions under which one may drive a car, buy an alcoholic beverage, qualify for various government aids, etc.
The legislature’s initial decision to grant biological parents the privilege of barring release of their off-springs’ original birth certificates was a policy decision. So, too, is the decision to bring that privilege to an end.
You may hear claims that those who have exercised their statutory privilege have obtained a vested interest in non-disclosure and that the retroactive extinction of that privilege violates the Minnesota and United States’ Constitutions. At this point in time, that is solely a matter of opinion. No court in this country has ever addressed such a claim, much less held that the repeal of a law such as this violates any aspect of the Constitution.
I will not waste your time today with specific arguments that might be made on either side of this issue. I will only say that the law regarding the retroactive effect of a statute is far too complex and the outcome in this case far too uncertain, for this committee to attempt to forecast what our courts will do. It is the legislature’s job to establish public policy; it is the courts’ job to determine whether the legislature’s policy decisions have infringed on any right held by any individual.
Fortunately, my son was born in a country that does not seal original birth certificates. He already has a certified copy of his. He knows his origins. But thousands of others adopted in Minnesota since 1917 (and their descendants) will never know theirs, so long as Minnesota continues to meddle in their private lives.
Ninety-one years of such meddling is more than enough.As an adoptive father and as an attorney, I ask you to approve HF 848 as introduced and to send it to the floor with your recommendation that it pass.
Thank you.
James M. Hamilton
St. Paul, MN
