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Adult adoptees should have unconditional access to their original birth certificates

babies
CC/Flickr/Sormlands museum
Why my adopted son should be denied the right to obtain a copy of his original birth certificate from the state, while I have the absolute right to my own, is a mystery to me.

The following is adapted from testimony given today by the author before the House Health and Human Services Policy Committee at the Capitol in St. Paul.

As an adoptive father, I have spent a considerable amount of time over the past 20 years educating myself on the issues faced by adoptees and their families, biological and adoptive. It was early in that process that I first learned of the existence of sealed birth certificates. Frankly, it had never occurred to me when my son was adopted that his original records might be withheld from him by the state.

As an attorney, the idea of sealed records appalled me. What possible justification could there be for treating adult adoptees differently from the rest of society?  I’ve not found any.

Today, the Minnesota Legislature has before it a bill which would correct an injustice almost 100 years in the making. House File 848 and Senate File 981, as originally proposed, would grant adult adoptees unconditional access to their original birth certificates, documents which were first sealed from public view in 1917. It’s well past time for such a bill.

Let me begin with a bit of history.

Every birth in Minnesota is memorialized by a birth certificate. A second birth certificate is issued for any minor adopted in Minnesota.

Uneven, evolving laws

Since 1917, Minnesota has sealed the original birth certificates of those born and adopted in this state. Initially, the information was locked away only from the general public. Over the years, however, the law was changed to prohibit anyone from seeing the original birth certificate, parent or offspring, adult or child. Under current law, some adult adoptees have access to their original birth certificates, some don't. It all depends upon when they were born and whether one of their biological parents has told the state not to release that information to them.

The Legislature last considered correcting this injustice in 2008. That bill would have changed the situation slightly, allowing any adoptee at least 19 years of age to obtain an uncertified copy of his or her original certificate upon request, provided that one of the birth parents had not already vetoed the adoptee's right to that information.

Gov. Tim Pawlenty vetoed that bill, and he was right to do so. Neither the existing law, nor the bill vetoed by Pawlenty, makes sense to this adoptive father. Why my son should be denied the right to obtain a copy of his original birth certificate from the state, while I have the absolute right to my own, is a mystery to me. Both of our births were public events, like that of virtually every other person in this state. Yet, the Legislature decided decades ago that some adults in this state should be denied access to this most fundamental personal information: who they are and where they came from.

No one should have the right to tell the state whether my son may have access to this information. Yet our current law and the failed attempt to modify it placed that right in the hands of the man and woman who conceived him. Why? Because he was adopted after being born.

Had he been placed in foster care, he would have the same rights I do. Whether he was born inside or outside of marriage, he would have the same rights I do. Whether he had been raised by one parent or two, he would have the same rights I do. But because he was adopted, the State of Minnesota has granted either of his biological parents the power to deny him the right enjoyed by every other non-adopted person in Minnesota: the right to know from whence he came.

He was right to veto, but did so for wrong reasons

Gov. Pawlenty was right to veto the 2008 bill that would have perpetuated this injustice. Sadly, he did so for all the wrong reasons. His veto was based not on the recognition of the rights of adult adoptees, but on the erroneous belief that those who relinquished children for adoption were in some way promised that the fact of the adoption would be kept forever secret by the state. He also cited a report stating that less than one-quarter of biological parents contacted by a single Minnesota adoption agency preferred not to have identifying information released by the agency.

The legal argument for opening these records is very straightforward: Every citizen should have the same right to access government held data on himself or herself. Period.

What are the legal arguments against opening these records?

Some contend that adoptees should not have unconditional access to their original birth certificates because birth parents were in some way promised that their identities would be forever secret. Yet, no Minnesota statute ever has made such a promise. The only two courts in this country ever asked to rule on that proposition have held to the contrary. See Jane Does 1 et al v. State of Oregon, Dec. 29, 1999 (rejecting claims that an Oregon open records law violated privacy and confidentiality rights guaranteed by Oregon’s Constitution and state and federal guarantees against impairment of contract) and Doe v. Sundquist, 106 F3d 702, 705 (6th Cir), cert den 522 US 810 (1997) (rejecting similar claims).

Some may contend that Minnesota law is different, because we have in the recent past permitted a birth parent to direct the state not to disclose the original birth certificate. They may even claim that permitting release of that document over their objections constitutes an invasion of their right of privacy.

A right vs. privilege

Let's consider those arguments for just a moment. A right is universal. A privilege is permission granted to a limited class of people. What our current law has offered biological parents is a privilege. When the state grants a privilege, it may modify or revoke that privilege. We see this principle in operation in every session, as laws are enacted changing the age and conditions under which one may drive a car, buy an alcoholic beverage, qualify for various government aids, etc.

The Legislature's initial decision to grant biological parents the privilege of barring release of their offsprings' original birth certificates was a policy decision. So, too, is the decision to bring that privilege to an end.

You may hear claims that those who have exercised their statutory privilege have obtained a vested interest in non-disclosure and that the retroactive extinction of that privilege violates the Minnesota and United States’ Constitutions. At this point in time, that is solely a matter of opinion. No court in this country has ever addressed such a claim, much less held that the repeal of a law such as this violates any aspect of the Constitution.

Space does not permit me a detailed examination of these arguments. I will only say that the law regarding the retroactive effect of a statute is far too complex and the outcome in this case far too uncertain, for the Legislature to attempt to forecast what our courts will do. It is the Legislature's job to establish public policy; it is the courts' job to determine whether the Legislature's policy decisions have infringed on any right held by any individual. Pawlenty vetoed an obscure bit of legislation on May 16, one that few Minnesotans have heard of and in which even fewer have any interest. But for tens of thousands of Minnesotans whose lives have been touched by adoption over the last 90 years, it was a significant event, one in which Pawlenty reached the right result for all the wrong reasons.

96 years of meddling is more than enough

Fortunately, my son was born in a country that does not seal original birth certificates. He already has a certified copy of his. He knows his origins. But thousands of others adopted in Minnesota since 1917 (and their descendants) will never know theirs, so long as Minnesota continues to meddle in their private lives.

Ninety-six years of such meddling is more than enough.

As an adoptive father and as an attorney, I urge the House and Senate to enact their respective bills, as introduced. Please join me in that effort.

James M. Hamilton is an adoptive father and an attorney in private practice in St. Paul who has followed this issue in Minnesota and around the United States since 1997. 

WANT TO ADD YOUR VOICE?

If you're interested in joining the discussion, add your voice to the Comment section below, or consider writing a Community Voices commentary. For more information about Community Voices, email Susan Albright at salbright@minnpost.com.

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Comments (15)

Mixed feelings

From one person's point of view, everything looks one way. From another's, it can look completely different. In this case, I have mixed feelings. My dad and all his siblings are adopted. I don't know what the conditions were on his birth certificate, but he was old enough to remember his name prior to his adoption, in any case. He was adopted by my grandparents, along with two of his natural siblings, while two other siblings were adopted separately by two other families. He has since located his other siblings and made contact. In that case, it turned out pretty well. All of the siblings were adults when they found each other, and each wanted to find each other. The biggest hurdle was that the youngest didn't know that he was adopted until well into his adulthood.

On the other hand, not all turns out well. Two other children were adopted by my grandparents. The youngest has recently been in contact with her natural mother and half-brother. Although not in and of itself tragic, there was a good reason that she was put up for adoption those many years ago. Unfortunately, her birth mother and her half-brother are not terribly responsible. Of course, neither is my aunt. But compounding my aunt's troubles, her birth mother and half-brother decided to "visit." There are some signs that this "visit" will become a permanent burden.

Now, when my aunt was put up for adoption, it is possible that the thought of being found by her daughter sometime in the future may have prevented the mother from putting her up for adoption. Without some medical need, it's not only unnecessary, but a deterrent for at least some soon-to-be (and not terribly willing) parents to put a child up for adoption rather than, say, have an abortion. Or even just decide to raise the child, which might not be in the best interest of the child. And, at some later point, finding a parent based on birth certificate data can backfire on the now-adult child, as it has with my aunt.

Now, I understand the need to know. Adopted kids often ask why? What if? Who? All kinds of questions and concerns. Heck, as a child who was born to an adopted child, I sometimes wonder about my "other" family and my family blood lines and history. However, unless there's a medical need to find a blood relative, what good does it do to force a relationship on a person who may have decided they really didn't want it? Yes, it might go well, but in at least some cases, those questions probably don't need to be answered--at least not by the natural parents. If a separate birth certificate is issued, and it is sufficient for legal purposes, I don't see that there is a need to open up birth records to adopted children unless the birth parents want to do so. Because sometimes, you know, it's not all about you.

It's absolutely all about you, and no one else

You're confusing search and reunion anecdotes with equal rights legislation. The two really have nothing to do with one another. Whether records are open or not, adopted people will choose to search and find (or not), and there will be happy reunions and not so happy reunions. That isn't the point. The point is adult adoptees want the same rights everyone else has, the right to own the facts of their own births, without qualification or judgement.

It's all about rights!

The Fourteenth Amendment to the U.S. Constitution, section 1 states:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Where in the 14th Amendment - or anywhere else in the Constitution - does it give one citizen the right to sign away the rights of another citizen? Where is a parent authorized to sign away certain rights of her child, unredeemable at age of majority? No relinquishment of parental rights document in any state reserves a single right to the mother; not one. It's not a "contract." It's a total surrender of ALL rights with regard to her child. What is done with all documentation from that moment on is totally and forever out of her control, as indeed it should be.

The truth is that while some states grant adoptees access to their original birth certificates (OBCs) and have never deprived them of this right (Kansas and Alaska), other states deny them OBC access, and therefore that civil right. Still other states have passed access-to-OBC legislation in recent years, some with no restrictions, others with varying degrees of restriction. So 14th Amendment rights are applied unevenly among the various states, creating subgroups of U.S. citizens. Creating even more subgroups are those from all states whose adoptions took place beyond infancy. They commonly already have copies of their OBCs, particularly if they were used to register for kindergarten. Thus some Minnesota adoptees are lucky enough to own their OBCs, while others aren't.

Are you aware that even children adopted by a step-parent get their original certificates sealed? How would you, Rachel, feel about the thought of having your name expunged from your child's birth certificate if you died during her minor years, replaced by the name of another "mother" who had nothing to do with her birth? And if your daughter hadn't already obtained a copy of her authentic birth certificate before your death and filed it away for safekeeping, she would be denied a copy with your name on it as her mother?

Your family's experience with adoption, your family's secrets, and the less-than-ideal relationship dynamics cannot - and must not - be used as a basis for shaping adoption law or policy. Our government must not be in the business of micromanaging family relationships. Adults choose to associate with other adults or not. Is that really so difficult to accept?

It's time that the 14th Amendment of our U.S. Constitution is applied consistently and evenly to all U.S. citizens, whether raised in their families of birth or in adoptive families. It's time we repealed the laws that sealed adoptees' birth certificates and restored the rights they once had but were swept from under them decades ago.

It's All About Rights

Jo Swanson has it right! ALL adoptees deserve to have their OBCs. The truth is better than all the lies and secrets. This isn't about what happens regarding reunions, some are great and some are not. What matters most is applying equal rights to everyone, and many states have taken this basic right away from adoptees. They deserve the truth and -- the truth is not on "amended" birth certificates.

The two children I adopted do not have their original birth certificates; the supposedly "legal" birth certificates they have list me as giving birth to them. I did not...their natural Mother gave birth to them and they have every right to have those original birth certificates. I spent years trying to find their parents because it is their right to know. Finally, when it became a bit easier (still difficult) with research and much help, we finally located them. We were blessed to even have a wonderful reunion and continuing contact. However, the adult adoptees, even in reunion with ALL wanting them to have their Birth Certificates with the correct names on them they are denied the right to see or have them. This should not be the way it is. We're all extremely happy to finally have all the information regarding family history, etc. They are still denied access to their Birth Certificates.

After so many years, there is absolutely no reason adult adoptees are denied the right to their Original Birth Certificates. They belong to the person...NOT the state.

civil rights, period!

As Mark and Jo have so eloquently explained, this issue is about civil rights, period. It is unjust to treat an entire class of people differently by law than we treat everyone else. To be told as an adult that my own birth is none of my business is insulting, unacceptable and intolerable. How my original mother and I handle our own, very personal affairs is no one's business except for hers and mine. My history is linked with hers, and it is certainly my right to know my own personal history. Also, this assertion that original parents were guaranteed anonymity from their own offspring is a misguided myth -- it is estimated that 40 percent of adopted people have some identifying information on their adoption decrees. I, like many adoptees, found my original mother without my factual birth certificate, and she chose not to have continuing contact, which is her right. We did exchange helpful information, however. It is way past time for government to get out of the way and allow full-grown adults to handle their personal business on their own, just as we do in every other area of life.

Unjust, archaic law implies secondary status for adoptees

I was unaware of this restriction on obtaining an adoptee's birth certificate.

As a member of an extended family in which we share the same parents but have different womb numbers, everyone has their original birth certificate...or maybe such a law does not apply to a neighboring state?

Contact with bio-parents and siblings was always a part of adopted brother, sister relationships...which seems to have worked well. and may account for the availability of those birth records.

As a young child I almost felt short-changed as a natural sibling with only 2 parents while a couple of our siblings had four...wow, indeed.

Thanks for highlighting this issue as in our family situation all have registered birth certificates. I will explore to verify however.

Rights are not conditional

Mr. Hamilton's article makes the case for unconditional access, and eloquently illustrates the difference between a right and a privilege. It is a shame that Minnesota, when given an opportunity to shine the light of freedom and equality on thousands of it's own citizens, should choose to bury it's head in an ongoing failed experiment of closed records, secrets, and lies. It makes me wonder who's agenda is being served by maintaining the status quo, and why anyone in politics would ignore restoring such a simple right which the vast majority of American citizens take for granted.

If you're not adopted, take a moment and imagine that the state has decided you can't know the circumstances of your own birth. You pay taxes, you do all the normal things people do to have a happy life, you try and live by the golden rule and treat other people the way you would have them treat you. How does it feel to know you have been relegated to a class 'not worthy' of the same rights as everyone around you, you don't have the right to possess the real document of your own birth? You don't have the right to know the circumstances of your own birth. Is this how we treat our citizens in 2013?

I thought we would have progressed to the point that people would recognize this is a basic rights issue, it has nothing to do with searching and reunions and all the hollywood minutia that people like to associate with adoption in this country. Mr. Hamilton gets it, but apparently the Minnesota state legislature doesn't. What a shame!

Results of Denied Civil Rights for Adoptees

As a mother who relinquished a child to adoption, I thank you for your excellent explanation of the difference between right and privilege. As someone who has been fighting for adoptee rights for thirty five years, I appreciate that clarification.

The relinquishment instrument I signed clearly defined the rights I would surrender: "I thereby lose any and all rights in, to and concerning said child forever." MY rights. All rights. Forever. No rights were reserved for me. I had given birth to a brand new U.S. citizen, whose rights were equal to mine. And my child's rights could not be - were not - surrendered in tandem with mine. Furthermore, among the rights I agreed to lose - those "concerning" my child - included all documentation compiled, amended, sent to other courts, archived - and this is important - or potentially released to my daughter, her adoptive parents, or a judge in compliance with 'good cause.'

So what are the legal complications of denial of rights to adoptees? One of the most obvious is their inability to get passports without their authentic birth certificates. Because their amended certificates are registered well past the window allowed by the U.S. Government, they are refused as proof of citizenship. Additional documentation must be provided, such as the original document from which the amended was extracted. Or hospital birth records. Or a witness to the birth. Or, although it isn't one of the listed acceptable documents, their adoption decree! Can you imagine!

We also have examples of adoptees being refused drivers licenses because of their unacceptable birth certificates. Refused even by the state that issued the amended certificate. One adoptee applying for a drivers license was even questioned by Homeland Security!

There is much more, but I'd like to close with this pathetic observation: When a child born to an illegal immigrant can freely get his birth certificate but a fourth generation U.S. citizen (like my daughter) can't get hers, there is something desperately wrong with our laws!

We need to get back to 'the way it was' when rights were recognized:

U.S. Children's Bureau, “The Confidential Nature of Birth Records,” 1949

8. The right to inspect or to secure a certified copy of the original birth certificate of an adopted child should be restricted to the registrant, if of legal age; or upon court order.

http://pages.uoregon.edu/adoption/archive/UscbTCNOBR.htm

Infant-stranger-adoption and Access to Birth Records

Our family spent 2 years, and found the bio family of an adopted cousin. We learned a great deal.
First of all, look at all the research collected by an organization called the Baby Scoop Era. There you will find a collection of books telling the truth about infant-stranger-adoption. Also called "non-kinship" adoption.
Second, all single women are usually conned out of their kid, by the fact that the welfare services withhold knowledge they could have free legal advice and services through the public defenders office. Each single Mom regardless of age, should have a private attoney advising them, her attorney should not also prepresent the adoption agency.
Third, not shareing the names of social services that could help them keep their kid, was financially beneficial to the Catholic Church, the Children's Home Society of Minnesota, Luthern Social Service; all of who made millions of dollars selling a product they could receive free.
Because of the documented trauma adoptees experience all their lives, and because of the documented trauma birth mothers experience all of their lives, the country of Austrialia has made infant-stranger-adoption illegal, and has apologized publically to the birth familys.
Withholding the Contitutional rights of any citizen has to legal advice before property can be taken away from them, such as their kid, is and act against Federal Law 42 U.S.C. 1983-1988, and the description of "due process" written in the 13th Amendment of the US Constutition.
To date, there has been no class action law suit by bio Mom's to inforce these federal laws. May happen some day...i hope. Anne Fessler mentioned below in Eight, would be able to contact these women.
Fourth, Dan Rather did an expose on birth mothers called "adopted or abducted." on Axe TV.
Fifth, Since I am a retired public school teacher, I know from professional experience, infant-stranger-adoption just does not work. And "every adopted parent" agrees with me.
Sixth: Policy changes need to be made. The first is to allow all adoptees access to who they really are, their family name. And this can be done with grace if the state of Minnesota writes and addendum to Minn. Statute Law 259.89. Currently, this law says both adoptee and bio parent must register for the state to allow them to have contact. This can be changed. Allow an adoptee to have the adoption agency contact the bio Mom voice to voice, asking for a private meeting in a neutral room without anyone else around. And this should occurr at no cost to either party by any adoption agency or social service.
Seventh: How does an adoptee learn of Minn. 259.89 if it is hidden from them? Find someone to donate money to plaster this law on billboards across the state.
Eighth: From our research, no bio Mom has ever been promised to keep her identity secret. To confirm this, read the book "the Girls Who Went Away" by Anne Fessler. 99% of those who want to keep adoptee and bio family apart are adopted parents, who are afraid of loosing the loyalty of the kids they adopted.
PS. if Minnesota legislature agrees to opening these records, it will show that Minnesota has grown up, as it voted No for both amendments at the last election.

Adult Adoptees - A Human Rights Issue - Their Birth Certificate

As a 'birth mother" I am totally in favor, as the vast majority of us are, to the child we relinquished to adoption to have their OBC. In fact, most of us wish to know how this child. now an adult made out in life. I can die in peace knowing that he was loved and okay. How inhumane to deny them this basic human right and the nerve to use us as the reason,

Lies, lies, when will they stop? Only those of us in the TRIAD know the truth, Secrecy is harmful to all, and the truth healing. DO NOT PLACE THE REASON FOR NOT GIVING AN ADOPTED ADULT THEIR OWN INFORMATION AS MY RIGNT TO PRIVACY. HOW RIDICULOUS IS THAT LIE!

Jill, just another mom

The usual cause of rights denied

There is a very good reason Minnesota and so many other states deny adopted citizens a copy of their own original birth certificate - money. The commercial adoption industry measures it's profit margin in the thousands of percent, higher than any drug dealer ever dreamed of. It's a multi-billion dollar industry here in the US, attracting shady characters and rife with fraud and coercion. These profits enable the hiring of expensive lobbyists to protect the industry, something compassion, fairness, civil rights and the wishes of the public cannot compete with.
In America, adoption has nothing to do with finding a home for an orphan child. It's strictly about finding product for the paying customer. When an agency can charge thirty thousand dollars for an investment of a hundred or two, the rights of those affected will be ignored every time.

Let the records be shown..

If anyone, especially in this day and age, were lucky enough to be be carried full term and become born, then their rights to their own information must be allowed upon their request. How could "valid ". laws interpret such a request as an invasion of ones own privacy.

These laws that forbade release of info is like holding someone in jail for a crime not committed... Once innocence can be proven.... Let them free...

Adult Adoptees - A Human Rights Issue - Their Off-Springs

As a "Adult Adoptee", I have been struggling with the issue for my child. It's not fair to her not to know any of my medical history - which could affect her life.Sadly I not have the right or privilege in knowing all of my personal & medical history - I am unable to share important health information to my daughter. Personally, I am more concerned to learn out the family health than the family dynamics.

This policy established by the State of Minnesota not only does it affect the Adoptee, it trickles down to the off-springs as well.

Policy changes need to be made. The first is to allow all adoptees access to who they really are, their family name. And this can be done with grace if the state of Minnesota writes and addendum to Minn. Statute Law 259.89.

Keep the comments going....

We THINK it s money that keeps OBC's closed..Its NOT..

Reaons for Keeping the OBC's closed

1. The adoption agency's and 2. the adopted parents. 3. Mental anquish..
The agency's do not want to stop adoption..they want to continue making the billions of dollars they always have made off a free product.
The adopted parents do not want to loose the loyalty of their adopted children. Especially if the relationship has not really become a child-parent relationship...and few do.
No adoption agency wants the public to know infant-stranger-adoption does not work.
No adoption agency wants the public to know about the hours of counseling and the cost to the adopted child throughout their lives.
And last but not least, no one gives a damn about the women who were conned out of their kids by social workers who's pay was based on how many women they conned out of their kids.
If we want a discussion on human rights and respect for women, lets continue the conversation on why they were not read their legal rights by the very organizations that were suppose to inform them of their legal rights. No other industrialized country shows such disrepect to women as the US. Women just have to get smarter and financially independant. And then always hire an independant attorney, and don't believe child welfare services are on your side. Their salary depends on how dumb a women is.......

30 years of searching...

I am a 47 year old adoptee searching for my biological family. Born May 7th 1966 in Mpls/StP MN. Adopted through Catholic Charities of Minnesota. When I was 24 years old I had a brain aneurysm, told it was caused from a prescription drug that I had started taking 6 days prior to. At the ago of 34 diagnosed with cancer. Since then have had 7 surgeries. Cancer free for almost 10 years. I deserve to know my medical background! Also would like to share my medical history with my biological family. I understand the choices made for me as a minor child was probably for the better for all involved. But we are adults now, times have changed, lets change with them. Nothing would make me happier than to meet my makers before we meet ours...