Adoption law, like all other law, reflects the culture and beliefs of the time. The ancient institution of adoption included the sharing of identities between participants, a custom that still occurs in many cultures. Secrecy is a recent introduction to adoption, in both practice and in statute.
Minnesota first closed off adoption court records to public inspection in 1917, but not to the families involved. This measure was meant to protect the privacy of the participants from public scrutiny in an era where adoption was a hushed conversation. Still, adopted persons had access to their original birth certificates and received a Certificate of Adoption when their adoptions were finalized in court.
In 1945, Minnesota imposed complete secrecy on adoption by sealing the court’s adoption records and the child’s original birth certificate. By doing so, Minnesota joined some other states around the country in amending adoption laws to fit a culture of shame that stigmatized infertility, out-of-wedlock birth, and adoption. Birth records, as recommended by adoption agencies, social services and legal authorities, were now closed to the adult adopted persons whose birth they registered. This also had the result that the child—without input, and even upon reaching adulthood—had lost the right to access his/her own original birth certificate.
In 1977, in response to the growing number adopted persons and birth parents returning to agencies to find each other, Minnesota created an intermediary process and an affidavit system, requiring the adoption agency, upon request of an adopted adult, to contact their birth parents, advise them of the request and ask that they submit an Affidavit of Disclosure or Non-Disclosure of the original birth record with the Department of Vital Statistics. The statute applicable to all adoptions previously granted did not allow for recourse if the birth parent refused to consent. In 1982, Minnesota’s legislature established a second and more comprehensive statute, requiring adopted agencies to provide more services to birth parents, adoptive parents, adopted adults and siblings. The statute stated that adopted persons aged 19 and older who had been adopted after August 1, 1982 could, upon request, be given the identifying information on their birth record by the adoption agency. Birth parents were to be advised of their right to sign an Affidavit of Disclosure or Non-Disclosure of the information. However, the adopted person was also advised that if the birth parent did not wish disclosure of the information, they could petition the court for release of the birth record. The court was vested with the authority to grant the request “for good cause” or if the court thought the need for that information outweighed the birthparent request for anonymity.
Despite the 1982 provision, for Minnesota adopted persons and birth parents, search continues to be a bureaucratic, expensive and very slow and complicated process with few successes. Tracking of search calls received by an adoption help line found that of 78 search calls received from June through December, 2003, the biggest obstacles to search were agency costs and bureaucracy. Callers revealed that payments to agencies did not result in release of information and that the current system of locating birth family does not work for a majority of adopted persons. In 2012, adoptees are reporting that searches are taking up to 1 year.
As a result of Roe v. Wade and changing societal views about having children outside marriage, birthmothers began in the seventies to require more say in the adoption process. Clearly, what they wanted was not secrecy. Open adoption, offering a variety of communication opportunities between birth and adoptive families, has become over the past 20 years common with infant adoptions. Thus, the period in which birthmothers were presumed to want secrecy lasted less than 35 years.
Public attitudes, affected by reunions in the media and the genealogy craze, are changing about equalizing the rights of adopted adults. Social change as well as the widespread practice of open adoption is diminishing the secrecy in what was once a closed adoption system. At issue is that adopted adults are the only American-born citizens denied access to their original birth information.
Attempts to change adoption statutes have been met with pervading false myths and well-intentioned but erroneous established attitudes about adoption. Research and the experience of States that have instituted adoption reform reveal that:
- The number of “closed” infant adoptions in the U.S. has shrunk to a tiny minority. Confidential adoptions constituted only 5 percent of their placements during the past two years, while 55 percent were fully disclosed and 40 percent were mediated. Ninety-five percent of the agencies said they now offer open adoptions.
- In the vast majority of infant adoptions, the adoptive and expectant parents considering adoption meet each other, and the expectant parents pick the new family for their baby.
- Most participants in open adoptions report positive experiences, and greater openness is associated with greater satisfaction with the adoption process (Grotevant & McRoy, 1998; Grotevant, Perry, & McRoy, 2005; Ge, et al., 2008). Furthermore, birthmothers who have ongoing contact with their children report less grief, regret and worry, as well as more peace of mind, than do those who do not have contact (Cushman, Kalmuss & Namerow, 1997; Henney, Ayers-Lopez, McRoy & Grotevant, 2007).
- The primary benefit of openness is access by adopted persons – as children and continuing later in life – to birth relatives, as well as to their own medical, genealogical and family histories. Adolescents with ongoing contact are more satisfied with the level of openness in their own adoptions than are those without such contact, and they identify the following benefits: coming to terms with the reasons for their adoption, physical touchstones to identify where personal traits came from, information that aids in identity formation, positive feelings toward birthmother, and others. Youth in open adoptions also have a better understanding of the meaning of adoption and more active communication about adoption with their adoptive parents (Berge, et al., 2006; Grotevant, et al., 2007; Wrobel, et al., 1996 & 1998).
- In States where access to original birth certificates has been restored, less than 1% of birth parents have requested “no contact” from their birth child (now adult). Statistics for States Implementing Access to Original Birth Certificates
- Adoptive parents as a group report positive experiences with open adoptions and high levels of comfort with contact. For them, greater openness is linked with reduced fear of and greater empathy toward birthparents, more open communication with their children about adoption, and other benefits in their relationships with their adopted children (Berry, et al., 1998; Grotevant & McRoy, 1998; Grotevant, Perry, & McRoy, 2005; Grotevant, et al., 1994; Siegel, 2008) see also, Openness in Adoption
- A birth certificate is issued by the State to every person born in Minnesota.
- The subject of a birth record has access to their record except adoptees. It is discriminatory to allow all other citizens access to their original birth certificates while not allowing adoptees access.
- States can not guarantee secrecy forever for/from anyone.
- Restoring access of original birth certificates to adoptees has not decreased the number of adoptions nor increased the rate of abortions in any state. See, Reform Adoption Data.
- Denying the adopted person their original birth certificate (a legal document issued to everyone born in the state) is discriminatory and in no way the fault of the adoptee. See, For the Records II: An Examination of the History and Impact of Adult Adoptee Access to Original Birth Certificates
Proposed legislation in Minnesota will addresses the need and constitutional right of adopted persons to their original birth certificate. The law would return adoption to its traditional form and leave behind the expensive and discriminatory experiment of secrecy.
Recent reform progress in Minnesota:
- In 2006, the Minnesota Legislature was mandated to conduct a six-month audit of state agencies and counties conducting post adoption searches. Of the 361 initial service request received by agencies as reported during the six month period, 159 were reported as unable to proceed. Of the 56 percent of cases where the agency was able to proceed, 32 percent of the searches had not been completed. Agencies reported that half of searches initiated were unable to be completed.
- In 2008, a bill granting Minnesota-born adult adoptees their own original birth certificate passed the Minnesota House and Senate but was vetoed by Governor Tim Pawlenty.
- In 2008 Minnesota Coalition for Adoption Reform was responsible for passage of legislation to connect adult siblings separated through adoption:259.83
- In 2012, a bill granting Minnesota-born adult adoptees access of their original birth certificates unless there is an affidavit of non-disclosure on file (the same bill language of 2008) was introduced, but was denied hearings.
- In 2013, a “clean bill” (no “parent permissions” and accessible to all adoptees at age 18) was introduced. The bill (HF 848) had a hearing with testimony in House Health and Human Services Policy Committee, but no vote was taken and the bill was laid over to 2014.
- In 2014 (HF 2440, a compromise from HF 848 after the hearing in 2013) was introduced and referred to Health and Human Services Policy Committee. It did not get a hearing.
- In 2015 HF 2247/SF 2132 was introduced and referred to House Civil Law and Senate Heath, Human Services and Housing committees. It awaits action in 2016.
One day the number of states allowing adopted persons access to birth records will reach a critical “tipping point,” a point after which a majority of States will reject secrecy as expeditiously as they once embraced it.