Birth mothers battle to keep records closed
When Jonathan Wexler talks about "Dad" and "Mom," he means the couple who adopted him when he was an infant - "the most wonderful, loving parents anyone could ever wish for."
But as a middle-aged adult whose adoptive parents have since passed on, Mr. Wexler also longs to know something about his "birth mother," and especially about the two older brothers and a sister whose existence he learned about only recently. He can't, however, because state law forbids him to see his original birth certificate. Like most states, Oregon seals the birth records of adopted children.
At least it did until recently, when Oregonians voted to lift the veil of secrecy on adoption records, accelerating a potentially wrenching debate over the rights of some 25 million Americans who constitute the "adoption triad" - adoptees, those who adopt children, and the parents who relinquish their children for adoption.
For women like "Jane Roe," who lives in Tennessee, the prospect of being found by the child she bore as an unwed teenager in 1956 - a boy who would now be about Jonathan Wexler's age - "has become a nightmare that will never go away."
It was not until 1988 that she learned her son had survived childbirth (she had been told he died). Further contact, she says, would heighten the "emotional distress ... guilt and despair."
"Jane Roe" is one of several women challenging Tennessee's law allowing adoptees to identify their birth mothers.
In Oregon, four women designated "Jane Does 1, 2, 3 and 4" filed suit Dec. 1 to block implementation of the new law, which allows "any adopted person 21 years of age and older born in the state of Oregon [to be] issued a certified copy of his/her unaltered, original and unamended certificate of birth...."
"This is very significant," says E. Wayne Carp, professor of history at Pacific Lutheran University in Tacoma, Wash., and author of a recent book on secrecy and adoption. "It certainly sets precedent in a lot of ways."
For one thing, says Dr. Carp, the premise of the Oregon law is that such disclosure is based on civil rights and not just biological or psychological needs to be determined by some third party. This is the position taken by activist groups such as Bastard Nation, the main grass-roots force behind the ballot measure here.
The conflict between fundamental rights on both sides seems to need Solomonic wisdom to find resolution.
Adoptees' rights vs. mothers'
On one side are adoptees who believe that withholding their birth records amounts to discrimination. Why should they be denied information that may have important consequences (medical histories, for example) or simply fill some heartfelt desire?
"It's really a rights issue for me," says Wexler, who lives in Portland, Ore., and works in domestic court, where he witnesses adoption proceedings. "I have a right to ... meet my own brothers and sisters [who were in foster homes for years before being adopted], and they should have the same right to know I exist."
On the other side are women like Cindy, whose pregnancy years ago resulted from a rape by a stranger. The daughter was given up for adoption and now lives in another state. Working through a state registry that forwards letters, Cindy (the pseudonym of a woman in the Portland, Ore., area) and the young woman began communicating last summer using only first names.
After several exchanges, it became clear the daughter wanted to find her biological father - the man who had gone to prison for raping her birth mother. Cindy, who is married and has other children, is "terrified" that this could occur and that her attacker could find her as well if laws are changed to allow all adoptees unlimited access to birth records.
"It's not just about a piece of paper," she says. "It's an extremely ... emotional issue."
Some opponents have suggested that Oregon's law might have a chilling effect on the availability of adoptable children. But in Kansas, the only state that never closed adoption records, the rate of adoption is actually a bit higher than surrounding states, although that probably has to do with other factors making it easier to adopt there.
Opponents also have argued that open records could increase the rate of abortion - but again there is no statistical evidence.
The lawsuit here claims that the Oregon measure violates both state and federal constitutions by "significantly invading the privacy rights of birth mothers." It also claims the law would break contractual agreements under which such mothers were told by adoption officials that their identity would remain confidential. The American Civil Liberties Union has weighed in on the side of birth mothers in the Oregon case.
Opponents also say such measures can adversely impact parents who adopt children.
"Opening adoption records on demand creates the perception that the relationship between the biological family and the adopted person is still intact," argues William Pierce, president of the National Council for Adoption in Washington, which represents adoption agencies.
"Jane Doe 1" says in her Oregon lawsuit that she has suffered "emotional distress and anguish out of concern that [the state's new law] ... will significantly and irreparably interfere with the relationships" she has with her spouse and other children.
In most states a court order is necessary to make birth information available to adoptees. Some states have registries where adoptees and birth mothers can seek (and provide) information about their cases. In about a half- dozen states, birth parents automatically have a "disclosure veto" over the information.
Adoptions historically open
Until just after World War II, birth records for adoptees were readily available around the country. There were several reasons states began closing such records, says Carp. Among them: an increase in the number of births to unwed mothers and the social stigma that included, and reaction by social workers to the McCarthy-era crackdown on "welfare cheats."
Much of that has changed in recent years as out-of-wedlock births shed their prior stigma and as adoptions become more open. In many cases, adoptive parents and birth mothers not only know each other but maintain relationships as the children grow up. It is in this context that many adoptees now assert their claim to know their family background. Here in Oregon, they point out, half the adoptees were born before the 1957 law denying access to birth records.
Still, there remains the sensitive issue of women (and some men as well) who have strong reasons for wanting to prevent or at least limit contact with children born years ago.
As an alternative to full disclosure of birth information on demand, some suggest a middle ground that increases the possibilities of communication while protecting privacy rights.
"If registries were beefed up and promoted so that birth mothers felt safe, they'd be more willing to give more information," says Cindy.
"Both groups have to recognize that the other has some rights," says Carp. "If that doesn't happen, real people lose."