Massachusetts debates giving adoptees open access to original birth certificates

Issue August 2005 By Andrea R. Barter, Esq.

Adopted children in Massachusetts have been forbidden from getting copies of their original birth certificates without a court order since 1974. That year, state law changed to amend the certificates, purportedly to protect children and biological parents from the stigma of illegitimacy.

But the question of whether adopted children should have legal access to their original birth certificates without a court order is being revisited on Beacon Hill, with persuasive arguments by both advocates and opponents.

The proposed legislation, S. 959, known as the ABC bill (Access to original Birth Certificates), makes original birth certificates available without a court order to adoptees over 18 and to adoptive parents of younger children.

Birth parents have the right to attach a form to the birth certificate to indicate whether they want to be contacted by their children, but there’s no guarantee that the request would be honored. Birth parents would not have access to the child’s adoptive identity.

Similar measures introduced in the last nine years never moved out of the Senate Judiciary Committee. This year, the bill was assigned to the newly formed Joint Committee on Children and Families, and it is supported by committee chairwoman Karen A. Spilka (D-Ashland).

If the legislation passes, Massachusetts would be only the sixth state to unseal birth certificates for adopted children. Currently, the commonwealth is one of 21 states employing a mutual consent registry, which matches information on adopted persons with birth parent information. In most states, including Massachusetts, when both the birth parent and the adopted adult register, identifying information is then shared with each. The National Council for Adoption endorses this kind of system.

Debate centers on the balance between birth parents’ right to privacy and children’s rights to their past. Complicating the issue is the fact that the many who prefer privacy cannot discuss their views publicly without sacrificing the very privacy they desire to protect.

Adoptees’ right to discovery

The Open Door Society Adoption Community of New England supports the position that all adopted persons should have access to a copy of their original birth certificate in the same manner as all other Massachusetts citizens.

“Because adoptees have the same rights to their own identity, to deny them a copy of their original birth certificate is to deny their human and civil rights. They should be able to connect with when and where their birth took place,” said ODSACONE board member Herbert D. Friedman, Rudolph Friedmann, LLP, Boston.

An adoptive parent himself, Friedman estimates he has handled 800 adoptions. The issue, he says, is a balancing act between the birth mother’s desire not to reveal her identity to a child she bore and the rights of the child to learn where he came from biologically.

“The legislature is attempting to clarify that, as between the balance of these two interests, it is more important that adopted persons are able to discover their original names and identities of their birth parents,” said Friedman.

Advocates such as the ABC Committee and the Massachusetts Legislative Children’s Caucus emphasize that the bill would not open adoption records and isn’t meant to be a search and reunion tool for adopted children. Furthermore, the ABC Committee contends, state law has never promised anonymity, and the courts can order any birth record unsealed.

Protection for birth parents’ privacy

This legislation “would transform the landscape of adoption in Massachusetts,” according to Hingham attorney Gail P. Otis, co-chair of the Family Law Council Legislation Subcommittee.

“While I can understand adopted individuals may have a desire to learn who their families of origin were, my concern is for those who years ago gave up a child, then moved on with their life — only to have this past history come back. It could have a devastating effect on those individuals,” said Otis.

Otis suggests that a better solution would be to make application of any such legislation prospective only, or to have an intermediary make discreet inquiries without violating any confidentiality expectations.

Pamela B. Bankert, Lawson, Weitzen & Bankert, LLP, Orleans, echoes Otis’ recommendation for prospective application of any such legislation.

“[Prospective application] protects the birth parents because they will then be aware of what will happen down the road. For parents who signed confidentiality agreements before, changing the legislation retroactively could create problems they never anticipated,” said Bankert.

Bankert, an adoption attorney with 18 years of experience, argues that anonymity has been part of the adoption culture for as long as an adoption culture has existed. In addition, a birth mother may not want to reveal the circumstances surrounding a child’s conception.

Bankert has had at least three cases where the birth was the product of rape. While that information is not listed on the birth certificate, if the adoptee contacts the birth mother, “the first question is usually ‘what can you tell me about my birth father?’” said Bankert.

Although legislation advocates argue that this bill is not about searches and reunions, both Otis and Bankert point out that, in today’s information age, giving adoptees access to their birth mothers’ names gives them easy access to the person. “It’s so easy to ‘Google’ people and find people…we don’t want to kid ourselves that people can’t be found,” said Bankert.

Bankert suggests two compromise solutions: In situations where people have specifically asked that their identifying information not be released, release only non-identifying information, such as genetic or medical information, or use a system whereby at the time the adoption documents are created, the birth mother designates her preference, using an intermediary for contact if contact is necessary.

The New Hampshire and Oregon experience

New Hampshire recently enacted a law similar to that proposed for Massachusetts. The Granite State measure became effective in January 2005. As of July 8, the New Hampshire Division of Vital Records Administration had received 693 requests for pre-adoption records.

Cathy Atkins, adoption program specialist with the New Hampshire Division for Children, Youth and Families, said the state saw a “tremendous” increase in the number of requests for adoption records after adoptees accessed their original birth certificates under the new law.

Prior to enactment, DCYF typically received only 15 search inquiries a month. In the first month of enactment, DCYF received 62 requests, but requests have since tapered to 20 to 25 per month, according to Atkins.

While Atkins admits that staff resources were strained, “I have to say it’s gone pretty well. We’re only six months into it. There will be issues; there are always issues. It’s a very delicate situation.”

In November 1998, Oregon passed a similar law. According to “Releasing Pre-Adoption Birth Records: The Impact of Oregon’s Experience on Its Vital Records Department,” a study published in the Sept.-Oct. 2002 issue of Public Health Reports, the Oregon Health Division began to receive requests from adoptees immediately following the passage of the measure.

Because of legal challenges, requests could not be processed until May 31, 2000. From June 2, 2000, through Oct. 20, 2000, 12 staff members and two supervisors issued more than 4,700 pre-adoption birth records while also processing their normal workload, which averaged more than 135,400 vital record orders annually.

Because of the need for retrieval from archives, requests for pre-adoption birth records were estimated to take 75 hours to process compared with two to three minutes for standard requests. Each batch of approximately 75 pre-adoption birth records required approximately 125 person-hours from vital records staff and three to four person-hours from archive personnel. Less than one percent of requests went unfilled.

The conclusion by the authors of the Oregon study: States contemplating similar legislation should consider increasing personnel and resources, prepare for intense public and media interest, and reorganize the storage of adoptees’ original birth records so they are easily retrieved.

Atkins credits thorough preplanning and coordination by and among the Vital Records Administration, DCYF and other adoption agencies for the comparatively easy implementation of the law in New Hampshire. But when considering the relative size and populations of Massachusetts and New Hampshire, Atkins cautioned, “You will definitely need to be prepared.”

Atkins recommends that states prepare a fiscal impact note requesting additional funding or staff for records and adoption agencies, as well as a fact sheet for adoptees explaining precisely what records they will receive when applying for their original birth certificate, noting that adoption records are not included.

In addition, she says, vital records workers, lacking training in social work, should be sensitized to the fact that they will be dealing with people facing intense emotional issues.

Otis added, “Reviewing this legislation, my immediate reaction is we don’t really know whether this will be good or bad, we just know it will change everything.”