Testimony on S.682

October 5, 1999

Foreign Relations Committee
The Honorable Senator Jesse Helms, Chairman
United States Senate
450 Senate Dirksen Office Bldg.
Washington, DC 20510

Re: S.682 – Intercountry Adoption Convention Implementation Act of 1999, 106th Congress

Mr. Chairman & Committee Members:

Thank you for providing us with this opportunity to express our concerns regarding S.682 – Intercountry Adoption Convention Implementation Act of 1999 (“S.682” or the “Bill”). Bastard Nation is an incorporated not-for-profit organization dedicated to preserving and restoring the rights of adoptees.

1. Executive Summary and Recommendation
   1. Introduction

      We have the following areas of concern with S.682:

      1. Title IV, Section 401 of S.682.

         We are concerned that S.682 Section 401 will impose by law a form of secrecy on the adoption process which is, by its nature, unfair and discriminatory toward Americans adopted from foreign countries. 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.

      2. The hearing process for S.682.

         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 S.682, despite the fact that the Bill may have a direct impact upon their lives and the lives of all Americans touched by adoption.

   2. Recommendation

      We urge the Committee to amend Section 401 of S. 682 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 the Hague Convention. Failing amendment of Section 401, we request the Committee to reject S.682 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.

2. Concerns with S.682 (Title IV, Section 401)

   Adult adoptees everywhere deserve the information held on them by public agencies and courts concerning their identities, heritage and development. We are concerned that secrecy provisions far more stringent than those required under Article 30 of the Hague Convention are included in S.682. 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 S.682 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 require state and local administrations to do likewise through Federal legislation. However, Section 401 ( b ) seems to have the effect of legally requiring the maintenance of such secret files, and of permanently preventing adoptees from accessing them. 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 for such an exemption, which we understand is normally made only where interests of national security or public safety are involved. There are no interests of national security or public safety involved in providing non-criminal and non-suspect American citizens with access to their own records, even where such records come into the possession of our government from foreign sources through the Hague Convention adoption process. 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. S.682 threatens to make these gains meaningless for intercountry adoptees. It is unclear why the sponsors of this legislation, Senators Jesse Helms and Mary Landrieu, appear to be going against the national trend toward greater openness.

   America’s states are not the only governments which give recognition to the rights denied by S.682. Many foreign countries also provide adoptees with access to government-held records, including countries who regularly allow children to be adopted in the United States. Yet S.682 seeks to perpetually seal the records of adoptees who enter the U.S. from all countries, regardless of the adoption practices prevalent in those countries – an extreme form of adoption secrecy which is not required under the Hague Convention or any other international instrument. If S.682 is passed as written, adoptees coming from certain countries would legally lose their right to information about their identities and heritage only when they become Americans under the provisions of S.682. Such secrecy requirements may also conceivably prevent such adoptees from benefiting under foreign programs created to assist adoptees once they become adults. Foreign governments have or are considering measures which would provide international adoptees with certain benefits. However, the ability of future generations of intercountry adoptees to take advantage of such benefits may be put in jeopardy by S.682’s secrecy provisions. A case in point is the Republic of Korea, which, according to statistics provided by the U.S. Immigration and Naturalization Service was the source of 1,829 intercountry adoptees entering the United States in 1998. South Korea provides considerable assistance to adoptees seeking to obtain information about their identities, as well as programs which provide tangible economic and social benefits to such adoptees, should they choose to return to South Korea.

   The right of adoptees to information to 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 (Articles 7, 8 and 20 (3) ), 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) 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). Section 401 of S.682 appears to go against both the intent and letter of these instruments, including the instrument it purports to enable.

3. Concerns about the Legislative Process in Respect of S.682

   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. S.682 as drafted appears to contradict these purposes, and thus requires amendment or rejection by the Committee in the manner set forth in this testimony. 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