Sealed Adoption Records

Report of the
Connecticut Law Revision Commission
to the
Judiciary Committee
of the Connecticut General Assembly

 

Prepared by David D. Biklen

February 17, 1999

 

Connecticut Law Revision Commission
State Capitol
Room 509A
Hartford, CT 06106

 Tel.: 860-240-0220
FAX: 860-240-0322
Email: lrc@po.state.ct.us

 

Sealed Adoption Records


TABLE OF CONTENTS

Introduction

Connecticut Law re Sealed Adoption Records

Birth certificates
Adoption records

Development of Sealed Adoption Records Nationally

Connecticut History of Sealed Adoption Records

Search for Birth Information in Connecticut

Search of sealed records held by adoption agencies
Registries
Other search methods
Search scenarios under Connecticut sealed records law

Why Adoptees Search

Open Adoption

Proposed Connecticut Legislation in 1998

Objections to Opening Sealed Adoption Records

Recommendations

Bibliography

1998 Proposed Legislation (SB 522)

1999 Proposed Legislation

 


 

Sealed Adoption Records

Report of the
Connecticut Law Revision Commission

February 17, 1999

 

 Introduction

At a March 30, 1998 meeting, the Judiciary Committee of the Connecticut General Assembly postponed action on SB 522, An Act Concerning Adoption Rights, and asked the Connecticut Law Revision Commission to review the bill and report on its possible implications to the Judiciary Committee for the 1999 legislative session. The Adoption Study Committee of the Law Revision Commission reviewed the matter. Members of the study committee are H. Maria Cone, Michael W. Lyons, Arthur J. O’Neill, and Edmund F. Schmidt with David D. Biklen as staff reporter.

SB 522 would have allowed adopted persons, when they become adults, to have access to their birth records to allow them to obtain their birth names and the names of their birth parents. No further action was taken on the bill in 1998 in the Judiciary Committee or in the legislature.

Prior to 1974, adult adoptees in Connecticut had access to birth records that identified their birthparents. Between 1974 and 1977, Connecticut changed its law to seal birth records, preventing adult adoptees from accessing that information. SB 522 would undo that law by allowing adult adoptees, but not other persons, access to information identifying the adoptee's birth parents.

This study reviews the history of sealed records in Connecticut and elsewhere and how and why adoptees search for birth information. In summary, the Adoption Study Committee makes the following recommendations:

  • Change current law prospectively to allow adoptees who are placed after enactment of this legislation access, when they become adults, to information that identifies their birth parents.
     

  • Allow adoptees who were placed before 1977 when adoption records were sealed access to information that identifies their birth parents.
     

  • Allow adoptees who were placed under the sealed records law (since 1977) access to information that identifies their birth parents, subject to court review should a birth parent object.

These recommendations are discussed more fully in the last section of this report beginning on page 14.  Attached to the report is draft proposed legislation to implement the recommendations.

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Connecticut Law re Sealed Adoption Records

Connecticut law seals birth and adoption records and keeps adult adoptees from learning the identity of their birth parents. Staff at the Connecticut Department of Children and Families and the Probate Court say that this legislation, enacted in 1974, 1975, and 1977, is applied retroactively. Birth parents, too, complained to the Judiciary Committee that the sealed records legislation was applied retroactively to children they placed for adoption before enactment of those sealed records laws. Thus, records are sealed for adoptions that occurred both before and after enactment of the legislation. It should be noted, however, that dicta in Sherry H. v. Probate Court, 177 Conn. 93 (1979) throws into doubt the propriety of applying the sealed records laws retroactively. This issue is discussed further below.

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Birth certificates. Under Connecticut law, all persons 18 years of age and older, except adoptees, are permitted to see and receive a copy of their own original birth certificate. CGS section 7-51. Original birth certificates disclose the person's date and place of birth, the name of the person and the person's parents, and other information pursuant to CGS section 7-48 and Department of Public Health requirements. Adult adoptees, however, except in limited circumstances, may not examine their original birth certificates that contain the identity of their birth parents. CGS section 7-53. When a person is adopted, the Department of Public Health issues a new or amended birth certificate for the adoptee that contains all the information from the original birth certificate except that it names the adopting parents, instead of the birth parents, as parents of the adoptee.

The birth name of the child can also be changed on the amended birth certificate. A change in birth name occurs on the birth certificate only when the Probate Court, pursuant to CGS section 19a-42(d), orders the change in its decree of adoption. Birth names would not change when, for example, a stepfather adopts children of his wife who retain their birth names.

An adult adoptee may examine only the amended or substituted birth certificate. Improperly disclosing the original birth information contained in the records is a criminal offense, punishable by a $500 fine and six months in jail.

Even an adult adoptee who actually knows the identity of his birth parents cannot access the birth certificate without a court hearing. Thus:

  1. Even if the adult adoptee knows the names of his birth parents, the Registrar of Vital Records at the Connecticut Department of Public Health will not give the adult adoptee access to his or her original birth certificate. The adoptee must, instead, petition the Probate Court to open the birth record, pay a $150 court fee, attend a hearing on the request, await a determination on the petition and take the court order opening the birth record to the Registrar of Vital Records who will then allow access to the birth certificate.

  1. If the adult adoptee does not know the names of his birth parents, he may not have access to the original birth certificate. The adoptee can ask the adoption agency that placed him to search for his birth parents to obtain their permission to release their identity to the adoptee. If it’s a private agency, the adoptee will have to pay a fee of up to $500 for the search. Both birth parents must agree to have identifying information released. If either parent refuses, the adoptee is still not permitted access to his or her birth certificate. If the adoptee receives the birth parent identities, the adoptee must then petition the Probate Court, as described above, for an order to release the original birth certificate.

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Adoption records. Except in limited circumstances under CGS sections 45a-743 -- 45a-757, child-placing agencies such as the Connecticut Department of Children and Families (DCF) and private adoption agencies may not release to an adult adoptee information in adoption records that would identify the birth parents of the adoptee without the consent of birth parents. If birth parental rights were terminated before October 1, 1995, both birth parents must give their consent before the information identifying the birth parents can be released to an adult adoptee. For terminations after October 1, 1995, either birth parent may consent to release of his or her identity. At the request of an adult adoptee, the DCF or private child-placing agency must attempt to locate the birth parents to obtain their consent to be contacted and to release their identity to the adoptee.

DCF and private child-placing agencies must, on request of an adult adoptee, release information in the adoption file concerning the adoptee's birth parents that does not identify the birth parents. The information includes matters such as their ages, heritage, education, general physical appearance, special interests and talents, existence of other children, health history of the birth parents, relationship between the birth parents, the adoption plan made for the adoptee by the birth parents, and other non-identifying, relevant information.

In addition, DCF and private child-placing agencies must maintain registries in which birth parents and adult adoptees may register their consent to have information that would identify themselves to be released to the other party.

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Development of Sealed Adoption Records Nationally

In his recent book, Family Matters: Secrecy and Disclosure in the History of Adoption (1998), Wayne Carp reports that, until the end of World War II, adult adoptees were intended to, and did, have access to their adoption records. When first enacted, adoption record laws were designed to allow members of the adoption "triad" or "triangle" -adoptees, adoptive parents, and birth parents - to have access to information about each other. That information was, however, insulated from prying eyes of persons unrelated to the adoption.

As the twentieth century progressed, however, the confidentiality law and practices evolved to give birth parents anonymity from their birth children who had been placed for adoption. By the 1950's, most states had laws that gave such anonymity to birth parents. Connecticut sealed these records in the 1970s.

It appears that the national shift toward anonymity was based on several factors. A primary consideration was the concern of social workers and child-placing agencies about the stigma of illegitimacy of children born of parents who were not married to each other. Changing or substituting birth certificates was seen as a way to remove that stigma and concealing the word "illegitimate" that may have been marked on the original birth certificate. However, Connecticut sealed records law never protected against that practice. If "illegitimate" were marked on the original birth certificate, "illegitimate" continued to be marked on the certificate amended because of adoption. This is because, under CGS section 7-53, only the names of the parents can be changed on the amended birth certificate. In 1943, Connecticut directly prohibited "illegitimate" from being marked on new birth records. Public Acts of 1943, chapter 399, now CGS section 7-50.

Under the legislation of most states, to keep the child from bearing the "sin" of her or his birth parent, the adopted child was "reborn" as a child of the new family with a new name, new identity, and new birth certificate - to give the illusion that the child had been born to the adoptive parents. Thus, the original birth certificate was sealed and replaced with a new one - a birth certificate with false information about the child's birth, a legal fiction. J. Pavao, The Family of Adoption (1998).

In addition, before World War II, most persons who relinquished a child for adoption were married parents who could not provide for their child. After the war, birth mothers who relinquished a child were typically young, unmarried, and middle class. They often sought to hide the fact that they had been sexually active outside of marriage. Substituted or changed birth certificates with limited access to original certificates was seen as a method of assuring that privacy.

Anonymity of birth parents and privacy of adoptive families was also seen as a way to secure integration of the child into the adoptive family. Birth parents would be stymied if they attempted an unwelcome intrusion into the adoptive family. It was also seen as a way to protect adoptees from potentially disturbing information about their birth parents and birth family background.

Some adoption agencies believed that the birth mother couldn't move to closure about placing her child for adoption unless strict secrecy and privacy were maintained. Birth mothers were often told that anonymity was important for themselves - anonymity would allow them to put this "unfortunate" episode behind them, to forget about it, and to move on with their lives with a clean slate. The policies that supported closed adoption records often supported the notion that adoptees should not be told that they were adopted - a practice that is, today, considered by most authorities to be inappropriate, harmful to adopted children themselves and to their relationships with their adoptive families.

As adoptees became adults in the 1970s, '80s and '90s, many of them realized that their actual birth records, their birth names, and identities of their birth parents were sealed from them. Many adult adoptees, stymied by their inability to learn their heritage, birth name, and genetic siblings, began to question the policy that gave them false information on their birth certificate and kept them from their accurate birth records. This often occurred when adult adoptees had imminent marriage or child-bearing plans. At the same time many professionals began to emphasize that an adoptee's "knowledge of one's heritage is a necessary part of identity formation." P. Sachdev, Unlocking the Adoption Files 12 (1989).

As a result of frustrations about sealed records keeping them from information about themselves, many adult adoptees have formed advocacy groups to change the sealed records laws. As this movement to unseal records developed, some birth parents became concerned that records would be opened and that they would lose their anonymity. Thus, organizations have been formed to protect the sealed records.

In addition to attempting to change sealed record laws, many adult adoptees use numerous other legal means to search for their birth information. Many professional consultants, volunteer networks, and self-help search groups are available to address the demands of adult adoptees to learn the identity of their birth parents. The Internet contains extensive lists of names, including all telephone books in the United State and registries, to help adult adoptees and birth parents link. Numerous guides and manuals offer advice on how, in the face of sealed adoption records, to search for the identities of birth relatives.

Kansas, Alaska, Oregon, and Tennessee are the only states that now allow all adoptees access to their records when they become adults. Kansas never sealed its records to adoptees. In November 1998, Oregon voters approved (by a 58% vote) a ballot initiative to allow adoptees who are at least 21 years of age access to their records, including those sealed before adoption of the ballot initiative. In Tennessee, adult adoptees may access their adoption records. However, the birth parents can file to prevent the adoptee from contacting them (a contact veto). Montana allows an adult adoptee to obtain a copy of the original birth certificate if adopted before 1967 or after 1997. In Ohio, an adult adoptee may obtain a copy of the original birth certificate if adopted before 1964 or after March 21, 1997. The Connecticut, New Jersey, Illinois, and Washington legislatures have all considered legislation in 1997 or 1998 to open sealed birth records. Texas also will consider legislation in 1999.

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Connecticut History of Sealed Adoption Records

Before 1974, adult adoptees in Connecticut had access to their adoption records and original birth certificates, including the identities of their birth parents. Public acts adopted in 1974, 1975, and 1977 changed that policy to restrict access to information that would identify birth parents. The 1974 change restricted an adoptee's access to his or her adoption files at the adoption agency. The change was made as an amendment on the floor of the House and passed without a negative vote.

The 1975 bill restricted adult adoptees access to their original birth certificate. Senators described how the bill would protect birth parent privacy. It passed the Senate on the consent calendar and the House by a vote of 118 to 26.

The 1977 bill set up the scheme essentially in place today, dividing access to information into two types: information that identifies birth parents, where access is restricted, and nonidentifying information about the birth parents and their history, where access is more available. The Senate passed the bill on the consent calendar and the House passed the bill by a vote of 130 to 3.

As pointed out earlier, state agencies apply the sealed records legislation retroactively to adoptions occurring before the records were sealed. However, in Sherry H. v. Probate Court, 177 Conn. 93 (1979), the Supreme Court refused to apply the 1977 legislation retroactively to the case because it was pending litigation brought under the 1975 legislation. The Court, citing CGS section 1-1(u) that the "passage or repeal of an act [the 1977 legislation] shall not affect any action then pending," ruled that the 1975 legislation was applicable to the case. The Court did not decide whether the sealed records legislation could be applied retroactively to other matters that were not under litigation at the time of the statutory changes. However, dicta in that decision concerning the application of substantive changes retroactively throws doubt on whether retroactive application is appropriate.

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Search for Birth Information in Connecticut

A review of Connecticut's sealed records policy requires consideration of that policy's effect in the real world. Adult adoptees, in fact, continue to search for their identities, often with success.

A search for birth information by adult adoptees may have up to three distinct parts: Search for information that will identify their birth parents; finding or locating the birth parents; and contact or reunion with birthparents. Some adoptees will seek only the information that will identify their birth parents, never attempting to make contact with them or delaying attempted contact for months or several years. Even though these adoptees do want to know the identity of their birth parents, they may want to delay contact or to avoid it altogether. Other adult adoptees, of course, seek identifying information and then attempt to have contact or reunion with their birth parents.

Peter Gibbs, Director of the Center for Adoption Research and Policy at the University of Massachusetts School of Medicine, points out that thousands of adult adoptees search for their birth parents every year (250,000 nationally by one estimate or 2,500,000 over ten years). Extrapolating these figures to Connecticut, 3200 adoptees search each year. Some adult adoptees search using the state-sanctioned contact system if their sealed records are in the hands of DCF (about 360 requests for information per year) or are in the hands of the private agency that placed them in adoption (also an estimated several hundred requests per year). Many others search using alternative methods.

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Search of sealed records held by adoption agencies. Under Connecticut law, an adult adoptee may ask the adoption agency in possession of the adoptee's sealed adoption records (DCF or a private adoption agency) for the identity of his or her birth parents. The adoption agency must then search for and contact the birth parents to obtain their permission to release the identifying information. For children placed before October 1, 1995, both birth parents must give consent before the information can be released - one birth parent can veto sharing the information for both the other birth parent and the adult adoptee. For children placed after September 30, 1995, adult adoptees are given the birth identity of a birth parent who consents - a nonconsenting birth parent cannot veto release of identifying information of the other birth parent.

As pointed out above, Connecticut statutes require the adoption agency to contact the birth parents if their identity is requested. However, many adoptees who seek the identity of their birthparents do not want, or are not ready for, contact or reunion with their birth parents. The requirement that birth parents be notified puts some adoptees who want birth information but do not wish to intrude on the birth parents in the awkward position of choosing between requesting release of birth information that will cause their birth parent to be contacted or of not requesting the information at all.

If an adult adoptee requests identifying information about birth parents, the child-placing agency must spend up to ten hours attempting to locate the birth parents and to obtain their permission to release the information. DCF does not charge for the search service for adoptions that they arranged. Private child-placing agencies charge up $500 for the search service, often with the fee being paid before the search is begun.

DCF has about 360 requests per year for information identifying birth parents. Of these 360 requests for information, the department conducts 250 to 300 actual searches for birth parents per year. Contrary to the assumption underlying sealed records laws that birth parents do not wish to be found, staff at the Office of Foster and Adoptive Services at DCF report that approximately 95% of the birth parents contacted by DCF consent to release of the information and to contact. A significant portion, but not a majority, of the searches are conducted on behalf of adults who had been placed as infants voluntarily by their birth parents.

Numerous private adoption agencies in Connecticut also are required to conduct searches and contact birth parents on request of adult adoptees who they placed as children. Combined information is not available for all of these private agencies, but their experience with consents to release identifying information is similar to that of DCF. And the overwhelming percentage of birth parents contacted want to have their identities released to their birth children, regardless of whether the termination of parental rights was voluntary or whether the child was placed as an infant or as an older child.

For example, Catholic Family Services in Hartford receives about 250 requests per year for both identifying and nonidentifying information. The agency conducts about 100 searches per year. Nearly all of the searches are on behalf of adults who were placed for adoption as infants by birth parents consenting to termination of their parental rights. The agency reports that 90% of the birth parents contacted agree to release of identifying information. Because of the demand for search, the agency has a nine-month waiting list before search can be undertaken.

The Village for Families and Children in Hartford and Waterbury Catholic Family Services also report that 90% of birth parents those agencies contacted consent to release of identifying information. Each of the agencies conduct about thirty searches a year. The searches conducted by the Village are predominately for adult adoptees who were placed as infants by birth parents who consented to termination of their parental rights. The searches by Waterbury Catholic Family Services are almost exclusively for adults who were voluntarily placed as infants.

This DCF and private agency experience is consistent with national studies finding that a high percentage of birth parents do not object to being found.

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Registries.   Connecticut law, CGS sections 45a-755 and 45a-756, requires private adoption agencies and DCF to maintain registries in which birth parents and adoptees may register their willingness or objection to have identifying information released. These registries are seen as a compromise between sealed records and full access by adult adoptees. In actual practice, registries have proven to have only limited usefulness. A registry is ineffective (1) if both the adoptee and the birth parents do not know of the existence of the registry, (2) if only one party is actively searching (even though the nonsearching party would not object to release of identifying information if asked), (3) if the registry has limited geographical applicability, or (4) if the person sought is incapacitated or deceased.

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Other search methods.   Sealed records lead many adult adoptees to use other methods to search for the identity of their birth parents. Searching for the identity of one's birth parent is not illegal. Each year, thousands of adult adoptees nationally search for, locate, contact, and reunite with birth parents, even with those who wish to remain anonymous. Adult adoptees use alternative searches to avoid the awkwardness, expense, and delay of the state-sanctioned search and contact system. They want to avoid the intrusion on birth parents that the state-sanctioned system imposes and because they believe that other search methods will be easier and more effective than the state-sanctioned process. Adult adoptees also use alternative search processes because the state-sanctioned process has not worked.

Numerous resources are available for a search. Adult adoptees use the resources of private investigators, search organizations, networks, self-help groups, state agencies, and adoption agencies. The Internet with its many listings, registries, and directories is an increasingly important search resource. For example, the Internet contains all United States telephone directories containing nearly 100 million names. Credit and business data bases contain millions of names with detailed information.

The amended birth certificate typically contains the name of the attending physician or midwife, town, date, and hospital of birth. Birth parent family members, friends, neighbors, acquaintances, and others often are aware of the pregnancy and placement for adoption. Siblings and half-siblings of the adoptee, older and younger, may be aware of or have been told of the adoption or of the name of the adoptive family. Adoptive families often have information about the birth family (names, siblings and other relatives, locations, occupations, etc.) that gives clues in a search process. If the birth child is placed for adoption at an older age, the child may have recollections about persons and names associated with the birth or a foster family. Death certificates, city directories, telephone books, land records, tax records, voting records, motor vehicle records, and newspaper birth notices are resources commonly used in a search for birth identity. If a child were entitled to Social Security benefits before the adoption, the Social Security administration will contact the adoptive family regarding those benefits using the birth name of the child.

Extra-legal methods may also be used by adult adoptees to gain access to their birth information. For example, sympathetic persons at public or private agencies may be willing to disclose identifying information contained in agency files.

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Search scenarios under Connecticut sealed records laws.  The practical effect of current restrictions should be considered in the following contexts:

  • An adult adoptee, whose birth parents' parental rights were terminated before October 1, 1995, seeks identifying information about her birth parents contained in adoption records of the adoption agency. The birth father agrees to release of his identity to his birth child and contact. The birth mother refuses to consent to release of her identity. The adult adoptee is prevented from receiving the information about both birth parents, even from her father who agreed. The birth mother's refusal acts as a veto on release of the information about the birth father. CGS section 45a-751b(b).

  • Same scenario as above, except the termination of parental rights occurred after September 30, 1995. The adult adoptee can receive the identifying information about her birth father, because he consented. The fact that her birth mother refused to consent does not operate to veto the release of information about the birth father. CGS section 45a-751b(a).

  • Birth parents place their birth child for adoption in 1966 under the law that allowed adoptees, when they become adults, access to their birth information. The birth parents knew of the law and expected and hoped their birth child, when an adult, would contact them when she was ready. The birth parents are unaware that the law was, thereafter, changed in 1974-77, and applied retroactively by DCF, to restrict their child's access to their identities and do not know about consent registries that the law had established. The adult adoptee registers with the state registry, but no match is made because her birth parents were unaware of the registry. The adult adoptee tries to view her original birth certificate to learn her birth parents identity, but is not given access because the law changed in 1975. The adoptee has to request her birth parents identity from the adoption agency, submit to an interview by a case worker, pay (possibly up to $500) the adoption agency to attempt to locate her birth parents for her and obtain their permission for release of their identities. The birth parents give consent to release of identifying information and contact. Even after the adoptee has a reunion with her birth parents, the adoptee still does not have easy access to her birth certificate. To obtain her original birth certificate, the adult adoptee then must petition the Probate Court for an order for access to the certificate, pay the $150 court fee, attend a court hearing on her request, await a court decision, and then take the court order for release of the record to the Registrar of Vital Records at the Connecticut Department of Public Health.

  • A child is adopted at age 12 by his stepfather who married the child's mother after the child's birth father had died when the child was 9 years old. Even though the adoptee knew and lived with his father until age 9, and knows the names of both his birth parents, the adoptee, when becoming an adult, cannot receive a copy of his original birth certificate. Instead, the adult adoptee must petition the Probate Court for an order to have access to his original birth certificate, pay a $150 court fee, participate in a court hearing, await a court determination to release the original birth certificate, and then take the court order for release of the record to the Registrar of Vital Records. Such stepparent adoptions are the most common type of adoption.

  • An adult adoptee knows the names of both birth parents, the adoptee having been told the information by his adoptive parents. As an adult, the adoptee cannot have access to his original birth certificate without going through the court proceeding described above.

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Why Adoptees Search

The premise underlying current sealed records laws is now under challenge by many researchers experienced with the law in practice. Adult adoptees claim a right to birth information is based on in two principles: (1) each person has a right to his own identity and history - it is impermissible for the state to interfere with this personal autonomy; and (2) adult adoptees are competent, to the same extent as are nonadoptees, to manage their own affairs, including difficult information about their identity and history, without supervision of the state.

Adult adoptees who advocate for access to birth records argue that the information in the birth records belongs not only to the birth parent or the state. The information belongs also to the child, now an adult. Birth parents should not continue to have control over their adult child's access to his or her birth name, history, and heritage and the state should not continue to be a party to keeping that information secret. They claim a right to the information both as a matter of right - it is personal to who they are - and because they have a legitimate need, medical and otherwise, to full access to their genetic heritage. Since 90-95% of birth parents contacted in Connecticut agree to release of identifying information, adult adoptees argue that Connecticut law should reflect that reality.

Withholding birth family and adoption information from adult adoptees was sometimes justified on the grounds that adoptees are being protected from distressing information about themselves, e.g., family mental illness or conception outside of marriage or by rape or incest, that is inconsistent with romanticized notions of their birth parents. It was also assumed that contact with or even knowledge of birth parents was inevitably disruptive to the child - denying the child the full experience of being raised by one's assumed biological parents. The possibility of contact by birth parents was also perceived as a threat to the integrity of the adoptive family and the authority of the adoptive parents. However, because the opening of records pertains only to adults, concerns over the integrity of the adoption family during the adoptee's childhood are largely irrelevant to this issue.

Modern authorities suggest a much more dynamic and complex picture of adoption. Attempts to protect adults from information about themselves, no matter how harsh, assumes that adults are unable to deal with that information. Research indicates, however, that persons cope better with known reality, even difficult family history, than with fantasies. Adoption research also indicates that secrecy in adoption may be damaging for everyone involved. Secrecy in a family may cause pain and shame and psychological damage even when significant secrets are not revealed. Withholding birth information may be particularly distressing to the child.

In adoption, parenting responsibility is transferred to the adoptive family, but that family and the adopted child are inextricably linked to the child's birth and adoption experience. Adoptees who are artificially kept from information about their birth situations romanticize and fantasize about that family. Adoptees often believe that they would like to find their "perfect" birth mother, or believe that their birth parents must have been terrible to have placed them for adoption.

Counseling for adoptions today explores both the joy and the pain of adoption with birth parents and prospective adoptive parents. Birth parents experience pain when they relinquish their right to parent the child. Adoptive parents are urged to recognize that the adoptive child is not their genetic child.

Adoptive parents are also counseled to recognize the profound sense of loss that their adoptive child may feel. The adoptive child has lost birthparents, birth grandparents, and extended family and may have lost genetic siblings – all links to the child’s genetic history. Adoptive parents and others often do not recognize or minimize these losses by the adopted person.

Lack of genetic ties to the adoptive family represents another poignant loss for the child. Growing up adopted often means growing up without another family member to whom the child can point and say, "I look like you." Even in same-race adoptions, the likelihood of a child having physical characteristics - beyond, perhaps hair, eye, and skin coloring - like those of a family member are slim. Yet sharing physical traits is an important anchor for a sense of belonging.

Being adopted also means feeling different; and feeling different from others- lacking something others have - can be experiences as a loss. As young as 3 or 4, adopted children understand that their family story is somehow different from those of other children." van Gulden, Holly and Bartels-Rabb, Lisa, Parenting is Parenting - Or Is It?, Adoptive Families 15 (Jan./Feb. 1999).

The effort by adult adoptees to find their birth information is an intense, fundamental human need to know one's roots and to address the loss of identity with their early life. Adoption search recognizes that adoptees had a life before the adoption placement. Adult adoptees who search wish to know who they look like, their ethnic background, and medical history. The search is about "healing and connection….we cannot suppress the human need to be connected." J. Pavao, The Family of Adoption (1998).

The current sealed records system also burdens adult adoptees' access to family medical information that may be critical to their own health care. Adult adoptees often cannot answer even routine, but critical, health screening inquiries by their physicians about the health history of their genetic relatives. Birth parents can have genetic susceptibility to medical conditions about which their birth children and the children's physicians should be informed as soon as possible. These conditions include various cancers, cardio-vascular problems, glaucoma, neurological system disorders, allergies to certain medications that can cause shock, multiple sclerosis, and kidney disorders. This family medical information can be important for adoptees when planning their health lifestyle and health care, for treating their own illnesses, and for planning about bearing children.

While Connecticut law allows adult adoptees access to adoption records containing nonidentifying health information of birth parents and biological relatives, much of the medical information is incomplete and can be best understood only by personal contact. Moreover, the medical information in adoption records may be woefully out-of-date. Much family medical information may not have been known at the time of relinquishment for adoption, but may have come to light in the birth parents only years after the adoption placement. Given the rate of medical advances, the relevance of certain medical information may not have been known at the time the record was formed. Sealed records make access to updated medical information, easily available to nonadoptees, by the adult adoptee awkward, if not impossible.

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Open Adoption

It is important to note that opening sealed adoption records is not the same as "open adoptions." In an open adoption, the birth parents participate in arrangements for raising a child placed for adoption. Birth parents might review information about prospective adoptive parents and even meet them and participate in selecting the adoptive home. Agreements in open adoptions can address matters about future contacts and communications between the families.

Today, the majority of infant adoptions are conducted by private agencies and are, to a certain extent, open. Openness in adoptions has been supported by many adoption professionals and by studies on the undesirable results of secrecy and "closed" adoption and on benefits of open placements. This trend toward openness in recent decades may also have resulted from cultural changes, such as a decreased stigma for illegitimacy, and the fact that fewer white infants are available for adoption. As the "bargaining" ability of birth mothers has increased, they more frequently participate in the choice of adoptive home and conditions for contact.

Greater openness in most current adoptions, however, does not address the concerns of adoptees who were or are placed in a "closed" information adoption system. Today, many of those adoptees are now adults demanding identifying information about their births.

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Proposed Connecticut Legislation in 1998

The 1998 proposed legislation in the Judiciary Committee (attached) would give adult adoptees (those 18 years of age and older), regardless of when the adoption occurred, the right to see original birth records containing the names of their birth parents and to have access to the birth parent identities contained in their adoption records in the possession of DCF or private child-placing agencies. The adult adoptee's right to access would not depend on birth parent assent or court approval. Unlike current law that requires that the state or the private adoption agency contact the birth parents for their approval, if an adult adoptee seeks identifying information, the decision whether to contact birth parents would be with the adult adoptee. Unchanged would be current statutes that restrict access to adoption records by third parties.

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Objections to Opening Sealed Records

The following prominent objections to opening sealed adoption records have been reviewed and found unpersuasive:

  1. Open records will cause the birth parents to try to reclaim the child. No evidence supports this assertion. In fact, only adoptees who are adults will have access to the birth records. These adults cannot be "reclaimed" by their birth parents from their adoptive parents.

  2. Record closure strengthens stability of the adoptive family. Studies also indicate that, overall, relationships between adult adoptees and their adoptive families are closer after adoptee reunion with birth families.

  3. Open records will lead to a rise in abortions. Open records have not led to a rise in abortions in Alaska, Kansas, and European and other countries that have open records.

  4. Open records will lead to fewer adoptions. Open records have not led to fewer adoptions in Alaska, Kansas, and foreign countries that have open records. In fact, the majority of birth parents placing infants for adoption today insist on some degree of openness.

  5. Open records are for only the maladjusted, ungrateful adoptee. No evidence supports this view. Joyce Pavao points out that we all "search for ourselves in various ways. We visit ancestral lands and homes of our grandparents. We look within us and around us to find out who we are and what our purpose is. This is true for everyone. The search for adopted people is thwarted by closed records." J. Pavao, The Family of Adoption (1998).

  6. Birth parents do not want contact. In fact, 90 -95% of the birth parents who are contacted by DCF and agencies in Connecticut agree to release of identifying information and contact with their birth children. The Connecticut experience is consistent with studies elsewhere in the United States and in Europe. Other studies indicate that most birth parents wish to be found by their birth children, but often, out of respect for the adopted person and the adoptive family, do not themselves initiate search.

  7. Sealed records protect birth parents from the threat of blackmail (i.e., an adult adoptee might threaten the birth mother with disclosure of her long-ago out-of-marriage pregnancy and adoption of the child.) This is not shown to be a notable problem, notwithstanding the fact that many adult adoptees currently obtain birth information through various means.

  8. Record closure protects adult adoptees from potentially disquieting information about their birth - rape, incest, etc. Attempts to protect adults from information about themselves, no matter how harsh, assumes that adults are unable to deal with that information. Research indicates that persons cope better with known reality, even difficult family history, than with fantasies about their birth families.

  9. A woman who placed for adoption a child born of a rape will not wish to be reminded of her trauma when the birth child contacts her. Avoidance of repeated trauma to a rape victim is, of course, a genuine concern. No evidence, however, demonstrates that victims of rape do not wish to be identified to their adult birth child. Indeed, many or even most rape victims may, in fact, wish to have their adult birth children contact them, contact that is hampered by current law. And under current law, contact and reminder of the rape occur anyway because a case worker, on request of the adult adoptee, contacts the birth mother to obtain her permission for release of identifying information. This request by the case worker for permission to release information is the reminder of the very trauma that some claim is sought to be avoided. Furthermore, given the multiplicity of methods of search, including the possibility of newspaper accounts of the rape, an adult adoptee may well be able to find the birth mother in any event. Sealed records simply make that search more time consuming, expensive, and difficult.

Current law has another unexpected effect. For adoptions where parental rights were terminated before 1995, both birth parents must consent to release of identifying information.  The rapist (birth father of the child born of the rape) can, in such a case, veto the birth mother-rape victim’s wish to be identified to her birth child, the adult adoptee.

The following objections raise legitimate concerns that we believe are significantly outweighed by the adult adoptee’s interest in access to his personal identifying information:

  1. Marriage and family discord may occur if a birth parent has not told his or her spouse or family about a long-ago pregnancy and placement of a child for adoption. This, of course, is a concern. But 90 - 95% of birth parents contacted do not object to release of identifying information and contact. Should the laws be designed to advance the interests of the 5 - 10% of objecting birth parents at the expense of the interests of the vast majority of the birth parents and all of the searching adoptees? In any event, an adult adoptee may well be able to search and contact using other means.

  2. Sealed records keep birth parents from being harassed or stalked by their birth children. Stalking and harassment are, in fact, criminal offenses that should be handled by criminal law and court injunction. Should anecdotal cases of stalking be sufficient reason to seal all adoption records in the light of the Connecticut experience of the great majority of birth parents agreeing to contact? To the extent that stalking is a problem, sealed records do not prevent it; ultimately, birth information can generally be found using other methods. The experience of open records in Scotland since 1930 and in England since 1976 does not reveal that adopted persons are abusing access to birth information.

  3. Birth parents who placed their children since 1977 have a vested right to an expectation of privacy. The promise of anonymity should not be broken. Some birth parents claim a vested right to privacy based on their reliance on existing sealed records provisions. However, the attempted anonymity was made at a time when secrecy in adoption was considered best for all involved. Current understanding about adoption dynamics points out that secrecy is generally harmful to all members of the adoption triad – the birth parents, the adoptive family, and especially, the adopted person, the very person the adoption laws are designed to protect. Furthermore, the birth information, as claimed by the adult adoptees, is also personal to the adult adoptee. State laws denying access to that information should not have been enacted. As a general matter, a birth parent's reliance on those improper laws does not justify continuance of those laws in the light of the competing interest of adult adoptees. Unique circumstances may, however, occur in which the interests of the adult adoptee should not control. The Recommendations suggest legislation under which a birth parent can show to a court that good cause exists why identifying information should not be released.

In any event, the probability of privacy is, and always was, illusory. Search for and identification of birth parents happens all the time, and will continue to happen, regardless of the law. The question is whether the state should continue to place a major, but not always insurmountable, hurdle in the way of legitimate search.

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Recommendations

  1. The current law should be changed prospectively to give adult adoptees access to information in adoption records that identifies their birth parents and the same right to access their original birth certificates as possessed by other adults. Current understanding about the complex dynamics of adoption calls for more information among members of the adoption triad and reduction in myths and false information about origins. Claims that such a policy would cause a general deterioration in the adoption process have no basis in fact. Notwithstanding the occasional anecdote about an adult adoptee intruding excessively into the life of a birth parent, studies of the experience with open information among members of the adoption triad in the United States and elsewhere have been quite positive. This change is addressed in section 1 of the attached proposed act.

  2. For similar reasons, opening sealed records to adoptees who were adopted prior to 1977 is appropriate. These adoption placements were made under the law that permitted these adoptees, when they become adults, to learn their birth information. Sealed record laws have been applied retroactively to adoptions where the birth parents had fully expected their birth children, when they became adults, to be able to contact them. Retroactive application of the sealed records laws has frustrated, or at least impaired, that reasonable expectation. As noted in Sherry H. v. Probate Court, 177 Conn. 93 (1979), retroactive application may have always been inappropriate even if the policy of sealing records was sound. Because of the possible ambiguity in Sherry H. about the retrospective application of the sealed records law, legislation to open the sealed records should clearly state that is to be applied retrospectively. This change is addressed in section 1 of the proposed act.

  3. In our judgment, birth parent identifying information should also be available to adoptees for adoptions that occurred under the sealed record law - since 1977 - provided that a court review is available should a birth parent object. In reaching our conclusion, we considered the rights of birth parents who have relied on sealed records law. Although birth parent wishes should not be controlling, unique circumstances may exist that appropriately call for the continued secrecy of a birth identity. The proposed bill allows for Probate Court review of a birth parent objection to release of identifying information. The information must be released unless the court finds that good cause exists not to do so. This change in the law is addressed is section 2 of the proposed act.

Birth parents who relied on a promise of anonymity and wish continued anonymity and adult adoptees who want identifying information have legitimate interests that conflict. It must be emphasized, however, that for the large majority of birth parents in Connecticut for whom information is available such a balancing of interests is not necessary. This majority sees their interests and the interests of their birth children not in conflict but coinciding with each other. Both parties support release of identifying information. To the extent, however, that a balancing of conflicting interests is required, we believe that the balance generally tips in favor of unsealing birth records for the following reasons:

  • The birth information, as claimed by adult adoptees, is personal to the adoptee, access to which the adoptee has an inherent interest and right. The adult adoptee, we believe, has an inherent, inalienable, right to knowledge of his identity and personal history. As such, the state laws denying that access violate fundamental rights of the adoptee. They should not have been enacted. Reliance on those improper laws does not justify their continuance or their retroactive application.

  • Persons who advocate for the continued anonymity for these birth parents point to a promise of secrecy made under the adoption laws in place at the time of their relinquishment for adoption. That promise was made at a time when secrecy in adoption was considered best for all involved. Current understanding about adoption dynamics points out, however, that secrecy is generally harmful to all members of the adoption triad - the birth parents, the adoptive family, and especially, the adopted person, the person the adoption laws are designed to protect.

Objection by some to release of identifying information must also be evaluated in the light of the experience in Connecticut that 90 - 95 % of the birth parents contacted consent to release of identifying information and contact. The statutory imposition of secrecy was independent of whether birth parents wanted it. Furthermore, it is unclear how many birth parents at the time of relinquishment for adoption were given a choice about whether they would like to have their birth child contact them when the child became an adult. A great number of these birth parents may have been told, inaccurately, that the law did not allow their birth children to contact them when they became adults or that it was the practice of the adoption agency not to allow contact. Those birth parents may not have been given the option of sharing adoption information.

  • The balance also tips in favor of the adult adoptees’ claim of access because: (a) All other adults have accurate birth information; (b) the birth information is often available elsewhere anyway, even if difficult to obtain; (c) it appears that most birth parents agree to release of information and contact; and (d) the "best interests of the child" analysis vis a vis parental interests may continue to apply to adopted children when they become adults. That is to say, if the state's first interest is with the adopted child, that interest should also favor the adoptee as an adult.

Search for birth information is a recognition that an adoptee had a life before placement for adoption. Thus, search for and identification of birth parents happens all the time, and will continue to happen. Contact will happen regardless of the law. The feared negative consequences of open information have not occurred in jurisdictions where records are open or in open adoptions. The question is whether the state should continue to place a major, but not always insurmountable, hurdle in the way of legitimate search.

Legal concerns over retroactively opening sealed records must also be considered.

Generally, legislation may be applied retroactively. State v. Romme, 93 Conn. 571, 573 (1919). "The principal function of a legislative body is not to make contracts but to make laws which declare the policy of the state and are subject to repeal when a subsequent legislature shall determine to alter that policy." Pineman v. Oechslin, 185 Conn. 405, 410 (1985). However, legislation "will not be permitted…to operate retrospectively where it will have the effect to...interfere with vested rights….The only ‘vested right’ which will be protected by these constitutional provision is one which rests upon equities and has regard for general welfare and public policy." Preveslin v. Derby & Ansonia Developing Co., 112 Conn. 129, 141-142 (1930).

A court reviewing the retroactive application of a statute that opened sealed records to adult adoptees would need to review whether the prior sealed records legislation created in the birth parents a vested expectation of privacy that cannot be taken by retroactive legislation. We believe that a court would allow retroactive application of open records for the following reasons:

  • While, on its face, the sealed records laws appear to give a privacy assurance, any expectation of privacy is illusory. A claimed expectation of privacy is compromised by operation of the law and of the realities of actual child placement. The original birth certificates for adult adoptees are, in fact, not sealed at the time the child is relinquished for adoption by the birth parents (parental rights are terminated). These unsealed original birth certificates are available for inspection by thousands of Connecticut residents until the child is adopted – at least 6 months after birth and for most adoptions even longer, often for years. Furthermore, extensive search resources available to adult adoptees seriously erode any claimed expectation of privacy. Most adult adoptees with adequate resources and determination can legally determine birth information even under current law.

  • Even if an expectation of privacy were, in fact, created, such an expectation is not a "vested right" protected from retroactive application of new statutes.

To be vested, a right ‘must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future…enforcement of a demand, or a legal exemption from a demand made by another.’ Manchester Environmental Coalition v. Stockton. 184 Conn. 51, 71 (1981).

Most case law in Connecticut addressing the matter of vested rights arises from private contracts between parties whose rights under the contracts are affected by changes in the law. Several Connecticut Supreme Court cases have, however, addressed whether a legislative change is applicable retroactively in noncontract cases. Those cases have deferred to legislative provisions even where the effect of the law is to fundamentally change the relationship of the parties. For example, post-divorce parental support of children could end at age 18 even though the divorce decree, rendered before the legislature lowered the age of majority to 18, called for support until age 21, Kennedy v. Kennedy, 177 Conn. 47 (1979); inheritance rights of adoptive children are controlled, not by the inheritance statute in effect at the time of adoption (which allowed an adoptive child to inherit only from an adoptive parent), but by the law in effect at the time of the contest (which allowed an adoptive child to inherit not only from the adoptive parent but also from relatives of the adoptive parent), Brooks Bank & Trust Co. v. Rorabacher, 118 Conn. 202 (1934); the state could recover from the estate of the deceased amounts it had expended to support the deceased in a state institution even though the reimbursement statute had been adopted after the deceased entered the institution, State v. Romme, 93 Conn. 571 (1919); a landowner does not have vested right in the existing classification of his land, unless the landowner had taken substantial action in reliance on the former zoning regulation (such a substantial construction of a structure), Marmah, Inc. v. Greenwich, 176 Conn. 116 (1978).

We believe that in a case such as this, where difficult, conflicting rights are in the balance, the court will defer to the legislative determination, particularly where a hearing has been provided to review the respective interests. By contrast, we also believe that the original retroactive application of sealed records law - depriving pre-1977 adoptees of access to fundamental information about their identity, for the reasons suggested in Sherry H., was improper.

For these reasons, we recommend enactment of the attached legislation that gives most adult adoptees, regardless of when adopted, access to their birth information. For those adoptions that occurred between 1977, when records were sealed, and the effective date of the proposed act, birth parents who object to release of identifying information must convince the Probate Court that good cause exists why the information should not be released.

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Bibliography

Proposed 1998 Legislation (SB 522)

Proposed 1999 Legislation     AAC Release of adoption record, sSB 1274