Consent or Coercion?
The Harms of Mandatory Open Adoption

Family North Carolina Magazine—Jul/Aug 2008

By Thomas C. Atwood

The current debate over whether and when an adult adopted person should be allowed to access those portions of his or her birth record that include the birthparents’ identifying information is among the most emotional and divisive to emerge in the adoption community in the past forty years.

On one side are those who support mandatory openness, unilaterally and unconditionally granting adult adopted persons automatic access to their birthparents’ identifying information. On the other are those who support mutual consent, whereby a birthparent’s identifying information is released only with her or his consent. Unfortunately the people who are most vulnerable in this debate–women who need confidentiality regarding their adoptions and unplanned pregnancies–cannot testify for themselves. In speaking out to defend themselves, they lose the very thing they seek to preserve, their privacy.

To favor mutual consent is not to oppose reunions or the exchange of identifying information between mutually consenting parties to adoption. Rather, it is to realize that mandatory openness harms birthparents, children, families, and the institution of adoption in the following ways:

First, mandatory openness violates birthparents’ basic human right to privacy. The right to maintain or waive one’s privacy in adoption is essential to the human rights and personal dignity of adopted persons, birthparents, and adoptive parents. Adoption policy and practice should respect and uphold this right by ensuring that all parties to adoption control the release of their identifying information and that contacts between family members do not occur without each participating member’s consent. To open records retroactively without the approval of a birthmother who was promised privacy is a particularly egregious violation of trust and common decency. For the typical birthmother, making an adoption plan for her child is a loving act committed in the best interests of her child. The law should honor birthmothers for this, not punish them by stripping them of their basic human right to privacy.

There are any number of legitimate and understandable reasons birthmothers and biological fathers may desire privacy. Perhaps the birthparent does not want to upset her or his spouse, family, and friends with a never shared revelation. Perhaps the birthparent is psychologically or emotionally unable or unready to handle the stress of renewed contact. Or, the birthmother may not want to relive the abusive relationship, rape or incest that caused the pregnancy. Sadly, birthparents who prefer privacy for any reason cannot discuss their views publicly without sacrificing the very privacy they wish to protect. Others must represent their vulnerable voice in the debate.

Second, by providing adult adopted persons identifying birthparent information without birthparents’ knowledge or consent, mandatory openness increases the number of unwanted, unilaterally imposed contacts between adopted persons and birthparents. Unwanted reunions between adult adopted persons and birthparents are often highly disruptive and even traumatic for all involved.

The following true story provides an excellent example of the danger mandatory openness poses to birthmothers: One birthmother who placed a child conceived in rape was asked by the child while they prepared to reunite whether she could facilitate a reunion with the child’s father. Fortunately, the birthmother’s identity had not yet been revealed in accordance with the guidelines of the mutual consent registry in her state, and she was able to withdraw from the situation and decline the reunion. A mandatory openness policy would not have allowed her to do so.

Third, mandatory openness undermines the strength of the adoptive family. Adoption is a legal process in which the legal relationship between the adoptee and biological family is severed. A new relationship is established with the adoptive family. An adopted child has no claim on his or her birthparents’ family, but has full rights and privileges as does a natural biological child within the adopted family. A chief reason adoption has been so successful is that society and law have respected the adoptive family as the child’s true and permanent family. By empowering one side to force himself or herself on the other, mandatory openness establishes as the legal norm and the cultural expectation that adopted persons and their birthparents will, and should, reunite when the child reaches the age of majority. Such a policy sends the corrosive and erroneous message that adoptive families are somehow inadequate to meet the psychological needs of their adopted members.

Fourth, mandatory openness reduces the confidential options available to women with unplanned pregnancies and causes some women who would otherwise choose adoption to choose abortion, or to single-parent when they are not ready to do so. There are significant numbers of women with unplanned pregnancies who are concerned about privacy in making their decisions regarding their pregnancies. Clearly, some number of these women who would otherwise choose adoption would choose abortion if they could not choose adoption with the assurance of confidentiality. This is not to say that mandatory open records increase the overall number of abortions in a state. Given that the number of abortions has declined in most states in recent years regardless of their adoption records policies, it seems obvious that there are far more powerful factors on the abortion rate than mandatory openness policies. It is merely to say that some unknowable number of women with unplanned pregnancies for whom privacy is a concern will choose a confidential abortion should a confidential adoption not be available.

For a particularly sad example of a situation in which privacy is paramount, consider that of Suzie from Tuscon, who called in to NPR’s Talk of the Nation on November 17, 2007 during a debate on mutual consent and mandatory openness. Suzie was thirteen when she gave birth to a girl conceived as a result of rape. The child’s father was also Suzie’s father. How many women in Suzie’s position would be psychologically and emotionally able to make a non-confidential adoption placement?

Similarly, eliminating privacy in adoption would mean that an unknown number of women with unplanned, out-of-wedlock births who would only choose adoption if it was confidential and for whom abortion is not an option would have no choice but to single-parent. Social science data clearly reveal that the more single parents there are, the more children languish in foster care, with greatly increased costs to the child, family, society, and taxpayer as a result.

Finally, mandatory openness perpetuates the false and demeaning notion that adopted persons face debilitating identity problems that can only be resolved by knowing their biological roots and having contact with their biological parents. The truth is that persons adopted at a young age generally accept their adoption readily, and grow up to be successful, happy, stable adults at the same rate as people raised in their biological families.

Despite decades of persistent mandatory openness advocacy, very few states have enacted the mandatory openness policy, and those enactments are the aberration, not the trend. At least forty two states allow birthparents to control whether their identifying information will be released through a mutual consent registry, a confidential intermediary, and/or a contact veto. Since the “open-records” movement began some 30 years ago, only six states have adopted this harmful policy, in addition to Alaska and Kansas, which had mandatory open records from the outset. Since 2001, at least 15 states have considered more than 30 pieces of mandatory open-records legislation. Only two states, New Hampshire and Maine, approved the measures.

During the 2007 legislative session, state lawmakers in North Carolina passed House Bill 445, an act that allows adoption agencies and local social services departments to act as “confidential intermediaries” between adult adopted persons and their biological parents. While the confidential intermediary system is preferable to mandatory openness policies in that it technically allows the subject of the search to control the release of her or his identifying information, it is nevertheless harmful in several ways. For one, the act of opening the confidential records to the intermediary is itself a violation of the search subject’s privacy. In addition, such a system requires subjects of the search to revisit a difficult question that was previously decided, leaves them open to pressure from the confidential intermediary to decide a certain course of action, and may put them in a position where they feel compelled to send a message that could be interpreted as a rejection to a person they love.

During this legislative session, North Carolina’s House Select Committee on Adoptee Birth Certificates made several harmful recommendations regarding what further action the state should take on this issue. The Committee recommended that the state allow adult adopted persons who have initiated a search for a biological parent to obtain a copy of that parent’s death certificate if the parent is deceased. Such a policy would leave the family members of the deceased birthparent vulnerable to being traumatized by learning of a wife and mother’s secret after she has died and having no recourse for reconciliation. Moreover, if the law protects the deceased person’s disposition of property upon her death, it should also respect her wishes regarding the disposition of her personal information.

The Committee also recommended allowing any family member of adult adopted persons or of biological parents to participate in the confidential intermediary system. This policy would allow the wishes of secondary relatives such as a grandparents to jeopardize and override the birthparents’ right to privacy.

Nevertheless, it is vital that legislators in North Carolina and elsewhere who address this issue realize that they will generally hear more from the small minority who support mandatory openness than they will from the majority who support mutual consent. It is necessary also that they understand that this situation is not evidence that mandatory openness has widespread support. Mandatory openness advocates have achieved what they have because they generally have higher levels of motivation and greater freedom to advocate for their cause than do those who favor mutual consent. Though research shows that only a small minority of adopted persons favor mandatory openness, those who favor mandatory openness are driven by a belief –however erroneous–that they are being denied their full civil rights. The majority of adopted persons who are not interested in having an absolute right to their birthparents’ identifying information are generally silent for the simple reason that not having a right is not something that typically motivates people to political action.

In conclusion, the views of birthparents and adopted persons regarding contact and the release of identifying information are as diverse and personal as they can be. While many birthmothers would welcome contact, many others who have been promised confidentiality would be deeply upset by it. And while a minority of adopted persons feel a strong need and even absolute right to this connection, many exhibit little serious interest in familial connections outside their adoptive family. Though one can empathize with the full spectrum of these views, their wide range and deeply personal nature makes a one-size-fits-all policy on the release of identifying information inappropriate. The decent, compassionate solution is a policy which respects the right of all parties to adoption to determine if and when their identifying information is to be shared. Policies governing the release of birthparents’ identifying information must therefore be based not on mandatory openness, but mutual consent.