Supplementary Testimony to HR.2909

November 6, 1999

Congressman Benjamin A. Gilman
Chairman, House International Relations Committee
Members of the House International Relations Committee
2170 Rayburn House Office Building
Washington, DC 20515

H.R. 2909 – Second Statement of Bastard Nation to the House International Relations Committee

Dear Mr. Chairman and Members of the Committee:

Thank you for once again giving Bastard Nation (“BN”, “we” or “us”) the opportunity to comment on H.R. 2909, the Intercountry Adoption Act of 1999.

BN is a human rights organization dedicated to promoting and defending the right of American adult adoptees, including inter-country adoptees, to access personal records held on them by the Federal and state governments. Our members consist of adult adoptees, adoptive parents and birth-parents. We believe that the legally enforced concealment of personal records from the people they directly concern violates the civil and privacy rights of adopted American citizens. We also believe that such practices harm them by enabling some adoption practitioners to conceal illegal, unethical, abusive and/or mismanaged adoption practices, and by blocking adoptees and their families from access to information needed for compelling medical and personal reasons. International adoptions have been a particular area of concern for us, given that the same secrecy and unaccountability have been compounded by a nearly nonexistent global regulatory structure.

We support the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the “Hague Convention” or the “Convention”) as a means for addressing some of these concerns. If properly implemented, the Convention can only serve to increase accountability and transparency in the adoption process and, in doing so, protect the interests of American adoptees and their families; however, in its present form, H.R. 2909 falls short of proper implementation.

Our concerns with H.R. 2909 focus around Sections 401(b) and (d) and 404(a)(2) and (c). Sections 401(b) and (d) erect practical and legal barriers that will effectively preclude access by inter-country adoptive families and adult adoptees to substantially all identifying and non-identifying information, including medical information, contained in personal documents held by the U.S. Central Authority. Furthermore, Sections 404(a)(2) and (c) will impose onerous and unfair penalties on private individuals who breach the provisions contained in Sections 401(b), (c) and (d). The consequences of these practical and legal barriers, and the criminal sanctions which will accompany their breach, are harmful to American citizens. Furthermore, we are concerned that these barriers and sanctions will be perceived by the states as the enactment of a de facto Federal policy in support of secret adoptions and sealed records with respect to inter-country adoption at a time when the states are moving aggressively toward ending such policies.

In our written testimony submitted to the October 20 full committee hearings, we noted a number of specific concerns with Sections 401 and 404 of H.R. 2909. We will focus here on offering what we believe to be some additional perspectives and specific solutions to the key issues.

1. We recommend eliminating any restrictions on disclosure to adoptees and their families of information contained in records directly controlled by the Federal government’s Central Authority, while restricting the scope of 401(b)(1) to those documents controlled by the states under existing state laws.

Section 401(b)(1) seeks to devolve to the states the power to administer access over the Federally controlled personal records of American inter-country adoptees, using a mechanism that will make it difficult, if not impossible, for the Federal government to release such records without litigation. Instead of this approach, personal documents held by the Central Authority should be provided to the U.S. persons they concern or to their parents or legal guardians if those persons are minors, in the same way that Federal agencies currently make available personal information they hold to concerned individuals without restrictions imposed solely due to adoptive status or family characteristics. Such a policy will simply apply existing practice to the new Federal function of Hague Convention administration, and therefore no states’ rights interests will be compromised. Documents under state control, such as documents finalizing the adoption or re-adoption under state law, will remain under state control and subject to state access laws.

We do not dispute the assertion by many on the Committee that adoption policy is primarily the domain of state governments. In the case of domestic inter-state adoption, documents held in the state of origin (such as those attendant on the relinquishment and post-relinquishment interim care of a child available for adoption, including the Original Birth Certificate) are subject to law of the state of origin, and documents held in the destination state (such as those attendant on the adoption finalization) are subject to destination state laws. Neither the destination state nor the state of origin have any jurisdiction over aspects of adoption documentation, retention and access outside of their own respective borders, as state laws generally do not have extra-territorial effect. States have no jurisdiction over documents pertaining to an adoption or an adoptee held by the Federal government, such as documents controlled by the U.S. Department of Defense, the U.S. State Department and the U.S. Bureau of Prisons, which are frequently sought by adoptees and their families.

H.R. 2909 will overthrow this long-standing regime by giving to the states the power to regulate documents never passed to their control in the first place. State law will be put into the position of dictating to the Central Authority-an agency of the Federal government-the policy on records access with respect to inter-country adoption records held by the Central Authority under the provisions of an international treaty. This policy will have to be administered on a case-by-case basis, with the Central Authority put into the position of having to interpret state law. This represents a dramatic extension of state power, and, will, as a practical matter, result in the need for individuals seeking access to personal records held by the Federal Government to sue in both Federal and State courts to clarify state law for the benefit of the Central Authority. As most adoptees and their families would not be able to undertake such litigation, the result of H.R.2909 would be an effective embargo on records access to the U.S. persons involved in an inter-country adoption.

It should be noted that Article 16 of the Hague Convention enables the sending country to withhold identifying information if its own laws so require. This allows foreign countries to behave in a way directly analogous to the inter-state domestic adoption process, as described above, with respect to records access. By giving states further control over documents already vetted under the Article 16 provisions, state powers are being extended to the point where they begin to take on an extra-national and extra-territorial character. In addition, 401(b)(1) may have the effect of sealing documents already freely available in a foreign country, thus possibly raising First Amendment constitutional issues.

In order for the Federal government to justify the sealing of documents under its control against access by the people they concern, a Federal interest in such secrecy would have to be demonstrated. Given the Article 16 protections and the fact that state adoption and re-adoption records, including information on the adoptive parents, would remain under the purview of state laws, there is no conceivable Federal interest in enforcing secrecy with respect to Central Authority records, since, presumably, the only people with an interest in accessing such Federally controlled records on the origins, background and heritage of adoptees, would be the adoptees themselves, as adults, and, while they remain minors, their adoptive parents.

2. We recommend that Section 401(d) be deleted.

Section 401(d) prevents the release of non-identifying information unless the person requesting the information is able to prove that such information cannot reasonably be believed to be used for purposes of identification. This requires the proof of a negative, which is impossible as a practical matter, and, therefore, no non-identifying information may be released under this provision whatsoever. Section 401(d) is unnecessary, given our position that all information under Federal, as opposed to state, control, should be freely available to the U.S. persons it concerns.

Despite the stated intention of the group charged with drafting H.R. 2909 to respect the wishes of the states with respect to adoption policy, 401(d) is far more onerous than any state law. Virtually all U.S. states provide for access to non-identifying information by at least adult adoptees, and, in many cases by parents and birth-parents as well, using affirmative criteria defining the specific nature of the information to be provided.

The only other alternative would be for the Federal government to devise concrete rules explicitly specifying the form of non-identifying information to be provided in a manner analogous to the process used in most of the states. We believe that the Federal government will not wish to assume such a role, as it lacks both the infrastructure and the experience to do so effectively.

3. We recommend the exclusion of criminal sanctions for breaches of Section 401.

To suggest that an individual seeking only access to personal records or an individual providing such access should face Federal prison sentences and severe fines equivalent to or harsher than those faced by criminals involved in black- and grey-market adoptions is inconsistent with American justice. While the possibility of a $50,000 fine may be considered to be an acceptable business risk by an enterprise involved in illegal adoptions, such a fine, plus a prison sentence, would impose a far more onerous punishment on private citizens in no way involved in deriving financial gain from adoptions.

Such a difference would be inconsistent with any reasonable concept of proportionality in the administration of justice; it would also be inconsistent with practices in any of the 50 states. Despite the sustained efforts of lobbyists for the adoption industry, the states have consistently refused to pass laws that criminalize the actions of those seeking access to their personal information in adoption while not breaching other existing laws. We are extremely concerned that these same lobbyists, having failed at the state level, are now advocating such criminal sanctions at the Federal level.

4. We recommend that Congress actively solicit the views of those personally involved in the adoption process while drafting adoption legislation.

We remain concerned that the views of those who derive financial gain from the adoption process and their paid lobbyists have been disproportionately represented during the drafting and review of H.R. 2909. Adoption practitioners and their lobbyists do not, as they are prone to claim, speak for the adoption community at large, and, we have found, these interests often hold views antithetical to those of their clients-the inter-country adoptees themselves. Even where such practitioners and lobbyists claim personal engagement with the adoption process, many of their clients still view them as representatives of the industry first, and as adoptees, adoptive parents and birth-parents second.

Conclusion

We request that the honorable members of the Committee reconsider the language contained in the current draft of H.R. 2909 and amend this language to reflect the concerns and recommendations introduced above and in our earlier testimony. Specifically, we recommend the following:

1. Elimination of any restrictions on disclosure to adoptees and their families of information contained in records directly controlled by the Federal government’s Central Authority, and restriction of the scope of 401(b)(1) to those documents controlled by the states under existing state laws;
2. Deletion of Section 401(d);
3. Exclusion of criminal sanctions for breaches of Section 401; and
4. Active solicitation of the participation of those personally involved in the adoption process but who do not work in professional capacities that derive financial gain from the adoption process.

We appreciate the difficulties faced by the Committee in drafting legislation over issues as contentious as the ones touched upon by H.R. 2909; however, we urge the Committee to view the interests and rights of the true clients of that process-the adoptees-as being of paramount importance. Truly transparent, ethical, fair and client-focused adoption practices will encourage the continuing development of adoption as a positive family planning alternative.

Please do not hesitate to contact us if we can be of any assistance to you in this matter over the intercession as well as during the 107th Congress.

With kind regards,

Ron Morgan
Executive Committee,
Bastard Nation
San Francisco, California

cc:
Julie Dennis, Chairman, Legislative Committee
Albert S. Wei, Advisor to the Executive Committee