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