Sealed Records and Adoption Reform

by Shea Grimm

My recent response to a thread on ‘Politicking About Adoption’ brought a lot of responses and generated a lot of interest about the history of adoption reform, the players, and the future. This post is an attempt to put in a more formal, organized way, some of the issues that I touched on in that first post. There is no way around it, this post is full of opinions. I have tried to make it clear when I am reciting factual history and when I am straying into the area of the purely subjective. I like to think that my opinions are informed, educated, and intelligent, and based on a strong foundation of research and experience. Nonetheless, I would not presume to try and pass them off as facts or objective journalism (is there such a thing?). This is merely one person’s view. This is in no way meant to be comprehensive. I don’t have the time now for a tour de force on every issue in adoption reform and who has their hands in it, although I will try to add to this document as time goes by.

Table of Contents

1. Sealed Records and Adoption Reform: An Historical Perspective
2. National Committee for Adoption (NCFA)
3. Concerned United Birthparents (CUB)
4. American Adoption Congress (AAC)
5. Legal Challenges
6. Uniform Adoption Act (UAA)
7. Open Adoption
8. The Present and the Future
9. Perspective
10. Other Players in Adoption Reform

Sealed Records and Adoption Reform: An Historical Perspective

In the beginning, there was ritual. Adoption as a practice is certainly as old as the human race. Tribal societies performed complex rites simulating the rebirth of an adopted child into his adoptive family, and in the ‘modern’ societies that sprung from their tribal ancestors, these tribal rituals were supplanted by legal ones. There are guidelines for adoption written in the Babylonian Code of Hammurabi, the oldest set of written laws, and the practice of adoption gradually became the institution of adoption, as the legal guidelines evolved through the Holy Roman Empire, the kingdoms of Europe and Asia, and finally, the United States and the Americas. While sealed records are a relatively new twist on a very old system, there is little doubt that adoption at its roots was intended to exist on a base of death and rebirth. The adoptee was, and is meant to be, reborn, as if they are dead to their original family, and their original family is dead to them. This idea is articulated in state adoption statutes and court rulings, and perhaps it is this deep-rooted notion of rebirth that is so intrinsically a part of the system of adoption, that sealed records and falsified birth certificates came to be seen as a natural extension of the system, a furthering of the ritual in a modern legislative age. Perhaps a century ago, sealed records were not needed to ensure that ‘the play’, the theatre, the ‘willing suspension of disbelief’ as BJ Lifton puts it, would continue, and it was only when adoptees began to speak out, and their birthparents answered, that those who had the most at stake, the producers of the play, the tableaux of death and rebirth, began to feel a desperate need for some legislative insurance. Regardless of the reasons, in recent history, sealed records have become the norm rather than the exception. The burden of silence, which used to rest on the adoptee, his adoptive parents, and his birthfamily, and used to depend on a climate of shame, has now been codified through falsified documents and draconian logic. As birthparents and adoptees, in particular, became less and less willing to remain silent, and wielding the club of shame became less and less effective, interestingly enough, sealed records laws became even more strict, and recently legislation was drafted that would actually criminalize searching. This state of affairs has left behind some compelling questions. Who is it that wants sealed records? Who wants adoption reform, what kind, and why? Who doesn’t, and why? Who has the most to lose from the alteration of the status quo?

My opinion is that the issue of sealed records is one of fear and power, those universal motivators. I believe that agencies fear that opening records will reveal past transgressions as well as threaten their future incomes. While the first fear might be warranted, there is nothing to suggest that adoption rates fall at all when adoption records are opened to adult adoptees, nor that the abortion rate rises. I also think that as with any entrenched power structure, change is fought against. In addition, since the perception (and I believe it’s accurate) is that adoptive parents oppose open records, and since adoptive parents are the clients of these agencies, they want to protect their client’s interests. If the high demand for a few babies were to drop down to more ‘normal’ levels, then agencies would be less likely to get away with charging the astronomical fees that some currently do. I also believe that many adoptive parents, especially those that actively support closed records and closed adoptions, are insecure with their status as adoptive parents. Despite improvements in education of the public, agencies, birthparents, and prospective adoptive parents, many adoptive parents still choose to see the issue of searching and birthparents in general, in terms of loyalties, gratitude, and their own success or failure as parents. Removing the option to search allows them some measure of comfort, control, and power.

National Committee for Adoption

The National Committee for Adoption, now the National Council for Adoption, is inarguably, the leading force in sealed records and the adoption status quo. It’s no surprise, since they were formed for the express purpose of maintaining the sealed status quo, and in fact, for strengthening it. The year was 1978, Carter was in the White House, and sealed record systems were firmly entrenched worldwide, but most particularly in the U.S. Carter convened a panel of independent experts in the field of child welfare to address the issue of ‘special needs’ adoption, and to draft some model state legislation. The panel instead came up with a Model State Adoption Act that threw open records to adult adoptees, and instructed adoption agencies to serve as intermediaries in searches by birthparents for their adopted children. It is at this point, that a very telling period in modern-day adoption reform commenced. In response to this legislation, whom do you suppose formed a lobby group designed to defeat it? Hearing the arguments of the sealed records supporters, one would assume that legions of birthparents would have rallied to try and uphold their promised and desired confidentiality. Or perhaps legions of adult adoptees would organize to send a message of their happiness with their silenced status. Well, that didn’t happen. Instead, it was the Edna Gladney Home, an agency in Fort Worth Texas, who went to its supporters, comprised mainly of adoptive parents, to raise money for a lobbying organization to defeat the open records provisions of the Model State Adoption Act. The result was the National Committee for Adoption. The NCFA and at its helm, William Pierce, convinced Senators such as John Tower and Jeremiah Denton to argue that open records threatened adoption, and when Reagan took over the White House, the original Model State Adoption Act had been supplanted by an anemic version that did away with the open records provisions, as well as many other reforms. The shortened act formed the basis of the Uniform Adoption Act currently making the rounds in several state legislatures.

Concerned United Birthparents

While birthparents were not, in general, rallying around the sealed records bandwagon, they were forming groups. In the 1970’s, a woman named Lee Campbell started a group for birthmothers in Boston called Concerned United Birthparents. CUB was formed to give women and men, birthparents, a voice where before they had none, and to get adoption records opened. After the novelty had worn off among the media and the general public, and it became clear that CUB was a group with a political agenda to be reckoned with, it comes as no surprise that CUB came under attack. The NCFA and the adoption establishment needed to paint CUB as a group of mentally unstable fringe radicals who were in the minority even among their fellow triadians. Some of the more extreme positions among CUB members were seized on and paraded around as a specter to an already frightened and confused community of adoptive parents and families. An NCFA vice-president, Mary Beth Seader, has been quoted as saying,

“Many of the pregnant women that [we] counsel are terrified of choosing adoption, because they’ve seen or read some CUB propaganda. The members of the anti-adoption groups come from real pain”, she reflects, “but it has made them into predators. They have never worked through the normal process of grieving, which moves from anger to acceptance of loss. Their message is that they have suffered the one unrecoverable loss of a lifetime and that the only treatment is to undo all adoptions. The troubling thing is how they pose as support groups, when they are really just the opposite. Their purpose is to fasten onto women who are in the same vulnerable and formative stages they were once in. They suck them into their passionate obsession, so that they, too, will get stuck in pathological grief that lasts a lifetime.”

Scarier even than the obvious exaggeration and venom in Seader’s portrayal is the notion that the NCFA ‘counsels’ pregnant women. Regardless, CUB became synonymous with ‘anti-adoption’, and the label has stuck. There is even some evidence that CUB members began to believe their own press clippings. Certainly many prominent CUB members have voiced support for a system that would replace adoption with a system of guardianship. Stories from CUB meetings from birthmothers who felt bullied into touting the party line of coercion and deception when they felt neither coerced nor deceived, are not terribly uncommon. Officially, however, CUB maintains that it does not want to do away with adoption, just with adoption as it is now, a position that is shared by many adoptees and birthparents. What is the motivation for many birthparents (and some adoptees) who want to do away with adoption? My opinion is that it is an attempt on the part of some very wounded birthmothers and others to try and make certain that what happened to them (coercion, sometimes kidnapping, assorted other terror that resulted in perhaps the most painful event in a person’s life, the loss of a child) never happens to anyone else. The problem is that for many people, adoption works. It works for the birthparents, it works for the adoptive parents, and it works for the adoptee. You don’t have to do away with it to fix it. IMO.

Regardless of what you think about CUB, or what their motivations are, there is little doubt that CUB has provided a forum for individuals who had been hiding in shame and fear behind the sealed system of adoption for decades, and in doing so, a new generation of adoptees grew up knowing that birthmothers could care, could remember, could think about the children they had left behind, and could be looking for them, too. In addition, CUB is always at the cutting edge of legislation, and is usually one of the first (if not *the* first) groups to launch efforts against the most egregious legislative campaigns, like the Uniform Adoption Act.
You can reach CUB at:

Concerned United Birthparents (CUB)
Libbi Campbell
Harvard Square
P.O. Box 396
Cambridge, Massachusetts 02138

American Adoption Congress

The AAC, perhaps unsurprisingly, came to be in the year of 1978, as the Carter panel was releasing its recommendations, and the Gladney home was brewing its counterattack. The AAC was formed as a non-profit umbrella organization to bring together the multitude of search and support groups and birthparents organizations that were established all over the country. As a non-profit group, the AAC has always had as its primary purpose, education; education about open records, open adoption, the problem of surrogacy arrangements, and other adoption reform issues. The nemesis of the NCFA, and its counterpart in the arena of progressive adoption reform, the AAC is largely composed of adoptees. The AAC has not fulfilled many people’s expectations, as instead of open records, intermediary systems have flooded the United States, with intermediaries and their groups settling in as AAC members. Many began to question the purpose and character of AAC, and political infighting only added fuel to the fire. A couple of recent mass reorganizations resulting in a new board of directors with many new faces has quieted the critics as they wait to see what the ‘new and improved’ AAC has to bring to the party.

Legal challenges

Many times over the years, adoptees have questioned the nature of sealed records with regard to their civil rights. Denied access to even the most basic of information that 98% of the population takes for granted, many adoptees can’t help but compare themselves to another historically disenfranchised group who had their identities stripped, and who were bought and renamed. Class action suits have been brought by adoptees who felt this way, including two suits brought during the very active reform period of the late 1970’s. Yesterday’s Children, an adoptee activist group, filed a class action suit in 1975, claiming that sealed records violated their constitutionally protected rights as articulated in the First, Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States. They lost on jurisdictional grounds, with the court appearing to hold that the issue of sealed records was not one of constitutionality, and belonged to the states. Yesterday’s Children appealed all the way to the United States Supreme Court, who declined to hear the case in 1978.

ALMA filed a class action in New York in 1977, arguing that sealed records violated the Equal Protection Clause of the Fourteenth Amendment, and further, likened sealed records to slavery, and thus concluded that the system violated the Thirteenth Amendment. ALMA also lost.

Uniform Adoption Act

The Uniform Adoption Act was drafted by the National Conference of Commissioners on Uniform State Laws, and formally accepted as a uniform proposal in 1994, despite outrage and condemnation from national organizations as diverse as the Child Welfare League of America, National Association of Social Workers, Adoptive Families of America, Catholic Charities USA, American Adoption Congress, Concerned United Birthparents, National Adoption Center, Adoption Exchange Association, Children Awaiting Parents, and the Joint Council on International Children’s Services. The Uniform Adoption Act seals adoption records for 99 years, criminalizes searching, shortens revocable consent periods that many states have already enacted, to a dismal 8 days from the birth of the child (not relinquishment, *birth*), does not define non-identifying information, and creates a muddled mutual consent registry that virtually ensures that no exchange of information, even between willing parties, will be made. The act allows a birth parent to relinquish a child without the consent of a birthfather if she states that his whereabouts are unknown or that she does not know the birthfather’s identity. The sections on preplacement evaluations of prospective adoptive parents are clearly intended to make it easier for couples to adopt rather than ensure that the best interests of the child are being served. In fact, the entire UAA, as evidenced by its supporters and detractors, is clearly meant to make it easier to adopt by increasing the number of babies available through shorter consent periods, lack of adequate birthfather notification controls, removing barriers to transracial adoption, terminating former contact agreements between original families and their children, and making it easier and more attractive to adopt with easier homestudies that are effective for 18 months rather than the 30 days that is now standard practice, sealing records and making it difficult for adoptees to search, and in general altering the system so that it works in favor of the prospective adoptive parent, against the adoptee, against the birthfather, and against the birthfamily in general.

Perhaps the climate that the UAA was enacted in can best be summed up with a story from one of the drafting sessions. Originally in the drafting process, records were to be sealed for 70 years, until an adoptive parent in attendance expressed concern that under that scenario, conceivably a 70 year old adoptee could still locate a living 88 year old birthmother.

The Uniform Adoption Act, like all model acts, can be introduced and passed in whole or in part by the state legislatures. To date, the UAA has been roundly rejected by the states, which is encouraging. Nonetheless, it would be preferable to see the progressive adoption reform movement launch their own model adoption act instead of playing this game permanently on the defensive.

The full text of the Uniform Adoption Act, as well as position papers on it from some organizations, can be found at Kevin McCarty’s FTP site, ftp://ftp.netcom.com/pub/km/kmc/adoption/law/uaa/.

Open Adoption

A common problem in the arena of adoption reform, is the insistence of some on equating open records with open adoption. Many adoption reformers hold as their primary goal, open records for adult adoptees. While many support the idea of open adoption, to my knowledge, no one has attempted or is even seriously considering any ‘open adoption only’ laws. There is a push lately towards making open adoption agreements more enforceable. Currently, penalties for breaking open adoption agreements are either monetary, or non-existent, and I know of a number of people, including myself, who wish to change that. I personally would not support a push for ‘open adoption only’ laws, and I doubt that there are many who would.

The Present and the Future

In nearly every state, groups are continually working to fight passage of the Uniform Adoption Act and any of its provisions. In addition, most states have permanent grassroots movements that track legislation, and many members have seats on appointed legislative drafting committees. Tennessee recently passed an open records bill, Ohio has been trying, and New Jersey’s been trying. Many Canadian groups have had great success in their provinces, which should form a model for future U.S reform. Most of these bills that are being tossed around focus on either registries, intermediaries, or open records. Of course on the Federal level there’s House bill 3286 that recently passed that addressed the Indian Child Welfare Act, transracial adoptions, and a tax credit for adoptive parents. A class action lawsuit is also in the works. It is my opinion that lawsuits, and large scale political groups like the NCFA and the AAC will ultimately not be the sources of lasting and progressive adoption reform. I look more to the small grassroots groups who are slowly affecting change through education, activism, search and support, legislation, and lobbying. I encourage everyone on the side of progressive adoption reform to join your local grassroots group or form your own, and resist efforts at an umbrella organization linking us all together. We’ve done the most through small, like-minded groups focused on one objective at a time. I also advocate a return to the ‘pure’ objective of truly open records, eschewing the idea of making ‘intermediate’ steps with intermediary systems, mutual consent registries, medical registries, and reverse registries.

Perspective

In the media age, it is sometimes easy to mistake happenings in adoption and adoption reform, and questions about closed adoption and sealed records, (certainly entirely different things, but inextricably linked) as a New Age, flavor of the month, derivative of pop psychology. The fact is, questions about the effects of closed adoption and sealed records are probably as old as adoption itself. Certainly in the 1920’s and 30’s, professionals in the field were publishing on the subject. In the 1920’s, psychiatrist Florence Clothier’s comments eerily resemble the modern day ‘primal wound’ (as articulated by Nancy Verrier) theories;

”A deep identification with out forebears, as experienced originally in the mother-child relationship, gives us our most fundamental security. Every adopted child, at some point in his development, has been deprived of this primitive mother. This trauma and the severing of the individual from his racial antecedents lie at the core of what is peculiar to the psychology of the adopted child.”

Clothier was hardly a singular voice at the time, and her similar concerns have been echoed more recently, in varying degrees, from famed anthropologist Margaret Mead to modern day psychoanalyst Erik Erikson, and a host of other professionals in the field of social work, mental health, and anthropology. The debate is not new, it is not a fad, and it is unlikely to go away.

Other players in Adoption Reform

Yesterday’s Children
77 Homer Street
Providence, Rhode Island 02903

Adoptive Parents for Open Records
Carol F. Gustavson
9 Marjorie Drive
Hackettstown, New Jersey 07840

Adoptees’ Liberty Movement Association
Mrs. Florence Fisher, President
P.O. Box 154
Washington Bridge Station
New York, New York 10033

National Organization for Birthfathers & Adoption Reform
Jon R. Ryan
P.O. Box 50
Punta Gorda, Florida 33951-0050