Testimony on HR.2909

October 20, 1999

House Committee on International Relations
Representative Benjamin Gilman, Chairman
2170 Rayburn House Office Building
Washington, DC 20515

Re: H.R. 2909 – Intercountry Adoption Act of 1999, 106th Congress

Mr. Chairman & Committee Members:

Thank you for providing us with this opportunity to express our concerns regarding H.R. 2909, the Intercountry Adoption Act of 1999 (“HR2909” or the “Bill”). Bastard Nation is an incorporated national not-for-profit organization dedicated to preserving and restoring the rights of adoptees.

1. Executive Summary and Recommendation

   We believe that the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the “Hague Convention”) should be enabled by the United States in a manner such that the rights of intercountry adult adoptees to know their identities will be protected and affirmed. We are concerned that certain provisions in HR2909, detailed below, will impose by law a form of secrecy on the adoption process which is, by its nature, is unfair and discriminatory toward Americans adopted from foreign countries and which undermines the goal of accountable and transparent conduct by adoption practitioners.

   We have the following areas of concern:

   1. Title IV, Section 401(b)(1) and 401(c)

      Section 401(b)(1) subjects American adoptees from foreign countries to discriminatory restrictions which violate their civil rights, as well as the intent and letter of the Hague Convention, by subjecting them to the arbitrary discretion of state governments regarding whether or not they should be allowed access to Federal government documents concerning their identities. Furthermore, Article 401(c) compounds the injury done to American adoptees by 401(b)(1) by specifically excluding adoptees as a group from rights accorded to other American citizens under Sections 552 and 552a of Title 5 of the United States Code.

   2. Title IV, Section 401(d)(2)

      Section 401(d)(2) imposes criteria for the release of non-identifying information to American adoptees that appear to link the release of such information – including vital medical information – to the judgment of Federal government officials that such information may, in fact, be used “identify the adopted child or any birthparent.” Such criteria make unfair presumptions about the use of such information by adoptees, as well as subject adoptees to the potentially arbitrary decisions of others in determining access to their personal records.

   3. Title IV, Section 404(a) and (c)

      Section 404 appears to impose more stringent penalties for the unauthorized release of personal information to American adoptees than for the crime of selling human babies for profit by a non-accredited agency or individual. A public official who, for whatever misguided reason, wilfully chooses to go against the draconian and unjust provisions on records access set forth in Section 401 would be facing up to a year in Federal prison, while a child exploiter involved in the illegal sale of a human being would only be facing a $25,000 fine. This is an outrageous and arbitrary imbalance that we believe would not survive a challenge in a court of law.

   4. The hearing process for HR2909

      We are concerned that no apparent effort was made to invite American citizens personally affected by international adoption, including adoptees, adoptive parents and birthparents and the voluntary organizations representing them, to submit testimony to the Committee regarding HR2909, despite the fact that the Bill may have a direct impact upon their lives and the lives of all Americans touched by adoption. As a consequence, we are gravely concerned that HR2909 reflects not the will of the American people but rather the desires of private interests and associations to promote their own quasi-commercial activities.

2. Recommendation

   We urge the Committee to amend Sections 401 and 404 of HR2909 to protect the right of adult intercountry adoptees to freely access any Hague Convention-related information held on them by American government agencies where such access would not explicitly contravene Article 30 of the Hague Convention in respect of the wishes of the country of the child’s origin. Failing amendment of Section 401, we request the Committee to reject HR2909 in its entirety. We also request that in the future the Committee makes appropriate efforts to provide timely notification of relevant hearings and pending legislation to American citizens personally concerned with the international adoption process so that they may participate more meaningfully in the legislative process.

3. Concerns
   1. HR2909, Title IV, Section 401(b)(1) and (c)

      Adult adoptees everywhere deserve the information held on them by public agencies and courts concerning their identities, heritage and development. We believe that American intercountry adoptees have an interest in seeing their access to such information legally preserved instead of prohibited, and we also believe that this interest takes precedence over whatever foreign interests HR2909 seeks to protect by prohibiting such access. It is our view that the Federal government should not be maintaining secret files on American citizens in the absence of a national interest for doing so, nor should the Federal government allow state interests to dictate such policies with regards to records under Federal control. However, Section 401(b)(1) and (c) seem to have the effect of legally requiring the maintenance of such secret files, and of imposing potentially arbitrary criteria for access to those files by the American citizens that they concern.

      Furthermore, we believe the language in Section 401 of HR2909 directly contravenes Article 30 of the Hague Convention, which empowers but does not require the country of a child’s origin to withhold certain identifying information on the child’s biological parents and, when read in conjunction with Article 7 of the Convention on the Rights of Child, restricts the right of such a foreign country to withhold information to instances where disclosure may result in harm (strictly defined) to the biological parents or harm to the best interests of the child. A state government in the receiving country may not, under the terms of the Hague Convention, unilaterally decide on the form and extent of restrictions, without any limitation as to the purpose, implementation and scope thereof. We are also troubled and perplexed by the mechanism through which states will advise the Federal government as to what Federally controlled Hague Convention records may be released to adoptees. In Tennessee, adoptees will, subject to certain restrictions, have access to virtually all adoption records. In Oregon, voters have decided that adoptees should have access to their unaltered and unamended Original Birth Certificate. In California, records access rules vary by county and are very oriented to the rights of adoptive parents to control that access. In Kansas and Alaska, records are open and available to adoptees. In Florida, very few records are open and accessible to any participant in the adoption process. Section 401(b)(1) appears to have the effect of subjecting inter-country adoptees adopted by families from each of these states to radically different treatments with respect to records controlled and maintained by the Federal government under the terms of a treaty entered into by the United States with foreign powers, all in apparent contravention of that treaty. Such differential treatment of American citizens is arbitrary and unjust.

      Our system of government requires that all citizens deserve to be accorded equal dignity and respect under the law. Specifically restricting the legal ability of adult intercountry adoptees to access their personal files and exempting them from the Freedom of Information Act of 1966, as amended, violates the dignity of such adults, and is discriminatory. Section 401(c) provides such an exemption, and it does so arbitrarily and needlessly. We believe Exemption 6 of the Freedom of Information Act would protect Hague Convention adoption records from being released to anyone other than the individuals they directly concern, since such documents are clearly “medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” However, Section 401(c) also circumvents the provisions of the Privacy Act which explicitly grants all other American citizens access to personal information the government holds on them. Thus this provision represents a violation of an adoptee’s right of privacy as a U.S. citizen. For the purpose of implementing the Hague Convention, placing restrictions on access that are more restrictive than those imposed by the sending country is needless, arbitrary, and violates the principles of open government and the privacy rights of US citizens. The U.S. Government has no business curtailing the privacy rights of US citizens out of concern for the anonymity of non-US citizens.

      In addition, Section 401 appears to go against the will of the American people in respect of the treatment of the government-held records of adoptees. State legislatures have enacted or are considering the enactment of laws to allow domestically adopted adults access to certain adoption records. Oregon and Tennessee have recently enacted legislation permitting access to identifying information. On Friday, September 27, 1999, the Tennessee State Supreme Court ruled that such legislation is permitted under their state constitution, dismissing attempts by plaintiffs to overturn the state law in question (Doe v. Sundquist). This follows a ruling by the U.S. 6th Circuit Court on 2/11/97 upholding the same law, as well as by the refusal of the U.S. Supreme Court on 10/6/97 to grant certiorari to those opposed to the law in their petition to stop it from going into effect. On July 16, 1999, a lower court in Oregon issued a similar ruling (Doe v. Kitzhaber) relating to that state’s new law permitting adult adoptees to access their Original Birth Certificates – a law which was approved by 57% of Oregon voters in a state initiative in November, 1998. Furthermore, recent public opinion surveys conducted by organizations such as CNN have shown that a vast majority of Americans support the ending of adoption secrecy laws. HR2909 threatens to make these gains meaningless for intercountry adoptees. It is unclear why the sponsors of this legislation appear to be going against the national trend toward greater openness. The right of adoptees to information regarding their identities and heritage is widely recognized and mandated in a number of international instruments. These instruments include the Hague Convention (Article 30), the U.N. Convention on the Rights of the Child (Article 7) and the widely accepted Uniform Guidelines for Foster Care and Adoption prepared by the International Council on Social Welfare (Sections 2.11 and 4.10). The Convention on the Rights of the Child explicitly recognizes “the right to know… his or her parents.” Section 401 of HR2909 appears to go against both the intent and letter of these instruments, including the instrument it purports to enable.

   2. HR2909, Title IV, Section 401(d)

      Section 401(d) appears to impose a definition of identifying information linked to the ascribed intent of the recipient of such information to utilize it for the purpose of identification. This is patently unworkable and arbitrary and will, in practice, preclude even the disclosure of non-identifying information concerning health, social or genetic background, ethnicity or even nationality to inter-country adoptees. Even medical files of vital interest to adoptees and their families would be subject to the qualification imposed by Section 401(d) – if a government official decides with “reasonable basis” that such information might be used by the recipient of the purpose of identifying biological origins, then that official would be empowered to withhold access.

      The right of a child to information on his heritage, cultural and social and health background is set forth in a number of international instruments, including the U.N. Declaration on Legal and Social Principles Relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (Articles 9 and 24), the U.N. Convention on the Rights of the Child (Articles 7, 8 and 20(3)) and the Uniform Guidelines for Foster Care and Adoption prepared by the International Council on Social Welfare (Sections 2.11 and 4.10).

   3. HR2909, Title IV, Section 404

      We are dismayed that HR2909 provides for more stringent penalties for public officials who wilfully disclose information made secret under Section 401 than for the black market sale of a human being, further compounding the injury against adoptees arising out of Section 401 and discussed above. Unintentional disclosure of information under Section 401 is punishable by fines up to $25,000 for a first offense and $50,000 for a subsequent offense. Intentional and wilful disclosure is a felony punishable by up to a year in prison. However, a black market adoption agency arranging an adoption without proper accreditation but violating no other provision of HR2909 would conceivably be subject only to a fine of $25,000 for illegally arranging an adoption. Such arbitrary penalties appear to bear no relation to the severity of the offenses they purport to sanction. In addition, the criminal penalties and fines for unauthorized disclosure of information provided in Section 404– up to $25,00 and $50,000 fines and a felony conviction– are far more stringent than for any other willful unauthorized disclosure of information protected under the Freedom of Information and Privacy Acts– up to $5,000 fine and a misdemeanor. These penalties are grossly vindictive, disproportionate and unwarranted.

   4. Legislative Process in Respect of HR2909

      We are disappointed that no credible attempt was made to solicit testimony from individuals and voluntary organizations representing any of the parties personally involved in the adoption process. We have heard reports to this effect from voluntary groups representing birth-parents and adoptive parents who have expressed similar concerns. Americans who have experienced international adoption first hand as adoptees, adoptive parents or birthparents are in a position to provide meaningful and substantive feedback to the Committee. We ask the Committee to see these people and their organizations as the valuable resources they are and to solicit testimony from them. We also believe that the involvement of such people in the legislative process offers a necessary complement to the views of adoption professionals and others, including paid lobbyists, involved with the adoption process in remunerated capacities, who may have certain vested interests with respect to the outcomes of such process.

4. Conclusion

   We believe the purposes of the Hague Convention are to mandate accountability and integrity in the international adoption process, and to provide minimal standards for protecting the rights of adoptees, including the right of adoptees to information with respect to their identities and heritage. HR2909 as drafted appears to contradict these purposes, and thus requires amendment or rejection by the Committee in the manner set forth in this testimony.

   Furthermore, we are deeply concerned that provisions of HR2909 predispose inter-country adoption practice to the perpetuation of a culture of secrecy, unaccountability and lack of transparency. With reference to inter-country adoption, we believe that this culture benefits only certain private interests and organizations that may derive consequent commercial advantages. As a consequence, we urge the Committee to carefully consider the potential impacts of HR2909 in order to craft legislation which promotes rather than undermines the rights of American citizens personally involved with the inter-country adoption process.

   We request that the honorable members of the Committee recognize that international adoption is a lifelong process and not merely about “moving” children and babies across international borders. The American enabling legislation for the Hague Convention needs to reflect such a lifelong process, as well as to better protect the interests of those who become American citizens through application of its provisions. The best means to achieve these ends are to ensure that the legislation in question is consistent with the desires of the American people, and, in particular, those voters who are personally concerned with the adoption process. We stand prepared to assist you in this process.

Yours sincerely,

Ron Morgan
Executive Committee,
Bastard Nation
San Francisco, California

Julie Dennis
Legislative Committee,
Bastard Nation
Seattle, Washington

Albert S. Wei
Educational Development Committee,
Bastard Nation
La Jolla, California and London, England