BILL ANALYSIS
AB 1349
Page 1
Date of Hearing: April 17, 2001
ASSEMBLY COMMITTEE ON JUDICIARY
Darrell Steinberg, Chair
AB 1349 (Pescetti) - As Amended: April 16, 2001
SUBJECT : OPEN ADOPTION RECORDS: ADULT ADOPTEES
KEY ISSUES :
1)SHOULD ADULT ADOPTEES BE ALLOWED TO ACCESS THEIR ORIGINAL
BIRTH CERTIFICATES AND SEALED ADOPTION RECORDS WITHOUT THE
CONSENT OF AND NOTICE TO THE BIRTH PARENT TO WHOM THE
IDENTIFYING INFORMATION PERTAINS?
2)DOES THIS BILL'S "CONTACT PREFERENCE FORM" PROVIDE AN ADEQUATE
SAFEGUARD FOR BIRTH PARENTS GIVEN THAT IDENTIFYING INFORMATION
IS RELEASED REGARDLESS OF WHETHER OR NOT THE BIRTH PARENT
WISHES TO BE CONTACTED?
3)SHOULD IDENTIFYING INFORMATION OF BIRTH PARENTS, WHO GAVE
THEIR CHILDREN UP FOR ADOPTION BASED ON THE UNDERSTANDING THAT
THEIR IDENTITIES WOULD REMAIN CONFIDENTIAL, NOW BE DISCLOSED
BY THE STATE?
4)IS THIS BILL POTENTIALLY UNCONSTITUTIONAL AS A VIOLATION OF
THE RIGHT TO PRIVACY?
5)MIGHT THIS BILL POTENTIALLY LEAD TO FEWER ADOPTIONS BECAUSE
CONFIDENTIALITY CANNOT BE GUARANTEED?
SYNOPSIS
This Bill Seeks To Give Adult Adoptees Access To Their Original
Birth Certificates And Adoption Records, Upon Request. The Bill
Allows A Birth Parent To Request A "Contact Preference Form"
That Will Accompany The Birth Certificate And State Whether Or
Not The Birth Parent Prefers To Be Contacted, But Does Not
Prevent The Release Of The Birth Certificate. The Bill Also
Repeals Existing Law Which Requires The Department Of Social
Services (DSS), For Adoptions Occurring On Or After January 1,
1984, To Disclose The Identity And Address Of The Adoptee's
Birth Parent To An Adoptee 21 Years Of Age Or Older If The Birth
Parent Has Indicated Consent To The Disclosure In Writing. The
Measure Removes The Current Ability Of Birth Parents To Request
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That Their Names Be Redacted From Adoption Records. This
Analysis Raises Significant Concerns Regarding This Proposal And
Amendments Are Suggested.
SUMMARY : Seeks to allow adult adoptees access to their
original birth certificates and birth records. Specifically,
this bill :
1)Provides that, upon written and notarized application to the
Office of Vital Records, any adopted person 18 years or older
shall receive a certified copy of his or her unaltered,
original and unamended birth certificate, decree of adoption
and all other documents contained in his or her file.
2)Allows a birth parent to request, at any time, a "Contact
Preference Form" that will accompany the birth certificate and
state whether or not the birth parent prefers to be contacted,
but does not prevent the release of the documents noted above,
including the birth certificate.
3)Requires the Office of Vital Records to match the Contact
Preference Form with the adopted person's file and forward a
copy of the form to the court clerk in the county in which the
adoption took place to be maintained as a part of the court
record of the adoption proceeding.
4)Repeals provisions in existing law requiring DSS, with respect
to adoptions in which the relinquishment for or consent to
adoption was signed on or after January 1, 1984, to disclose
the identity and address of the adoptee's birth parent to an
adoptee 21 years of age or older if the birth parent has
indicated consent to the disclosure in writing.
5)Allows the adult adoptee about whom an adoption proceeding
relates to obtain inspection of the adoption files.
6)Removes the existing ability of birth parents to request that
their names be redacted from adoption records and, instead,
requires that, upon notarized and written request of any party
to the proceeding or any adult adoptee about whom the
proceeding relates and upon order of the judge, the court
clerk shall provide documents for inspection or copying and
provides that parties to the proceeding and adult adoptees are
not required to petition the court in order to obtain the
documents.
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7)Requires DSS, upon receipt of a request, to send the court
clerk an unaltered, unlimited and unredacted copy of its
entire file of the subject adoption to be maintained by the
court clerk as part of the court file.
8)Provides for various other procedures with which a court clerk
must comply in handling requests for documents and allows DSS
or the licensed adoption agency to charge the requestor a
reasonable fee, not to exceed $150, to cover the costs of
processing requests for information. The bill requires that
any revenue from the fee be used to increase staff as needed.
9)Does not apply to the records of juvenile court proceedings.
10)Codifies Legislative findings and declarations stating that
every person has a right to obtain self-identifying
information contained in court documents and other state-held
records unless a substantial overriding state interest
overcomes that individual right.
11)Provides that the denial of self-identifying information in
court documents of adoption or other state-held records
pertaining to adoption shall not be considered to be an
overriding state interest where the information is requested
by an adopted person 18 years or older.
EXISTING LAW :
1)Provides that, among other rights, all people have an
inalienable right to pursue and obtain privacy. (California
Constitution, Article I, Section 1.)
2)Declares that the right to privacy is a personal and
fundamental right protected by the California Constitution and
that all individuals have a right of privacy in information
pertaining to them. (Civil Code section 1798.1, the
Information Practices Act of 1977.)
3)Requires DSS, with respect to adoptions in which the
relinquishment for or consent to adoption was signed on or
after January 1, 1984, to disclose the identity and address of
the adoptee's birth parent to an adoptee 21 years of age or
older if the birth parent has indicated consent to the
disclosure in writing. (Family Code section 9203. All
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further statutory references are to this section unless
otherwise noted.)
4)Requires DSS, at the time of the adoption, to tell the birth
parent that the adoptee, upon reaching age 21, may request the
name and address of the birth parent, and DSS must release
this information if the birth parent consents in writing. The
birth parent is asked to check a box indicating whether or not
they wish their name and address to be disclosed and they are
also told that they can update this information at any time.
(Section 8818.)
5)Under a mutual consent registry, permits DSS or the licensed
adoption agency to facilitate contact between an adult adoptee
and his or her birth parents if each have filed a written
consent with DSS or the agency. (Section 9204.)
6)Requires that, in an adoption proceeding, the adoption files
are not open to inspection by any person other than the
parties to the proceeding and their attorneys and the
Department, except upon written authority of the judge of the
superior court. (Section 9200.)
7)Allows a judge to authorize any person to inspect the adoption
files only in exceptional circumstances and for good cause
approaching the necessitous. (Section 9200.)
8)Allows any party to the proceeding to request the court to
order the county clerk not to provide documents for inspection
or copying to any other person unless the name of the birth
parents or any identifying information related to them is
redacted. (Section 9200.)
9)Requires, unless otherwise requested by the adopting parent,
that the state registrar issue a new birth certificate,
bearing the names of the adoptive parents, when an adoption is
recorded for a child born in California and the child's birth
certificate is on file with that office. (Health and Safety
Code section 102635.)
10)Requires that the new birth certificate shall supplant any
birth certificate previously registered for the child and
shall be the only birth certificate open to public inspection.
(Health and Safety Code section 102680.)
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FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : This bill, sponsored by California Open2001, is
intended to allow adult adoptees access to their original birth
records. In commenting on the need for the measure, the author
states:
Presently, the law does not allow an individual that was
adopted at birth a copy of his/her original, unaltered
birth record. At the time of adoption, the facts of birth
are typically changed to include the adopting parents'
names, a new name given the baby, possibly altered place
and/or date of birth.
This bill seeks to give adult adoptees the same right to
his/her original birth records that the rest of the
population enjoys. Records have been sealed for various
reasons, primarily to protect the interests of the adopting
agency. The bottom line is that the records belong to the
adoptees and no one else.
Currently, there are six states that have opened adoption
records: Alabama, Alaska, Delaware, Kansas, Oregon and
Tennessee. Legislation is pending in the states of
Arkansas, Georgia, New York, Texas and Washington.
California Open2001 argues that the purpose of the measure "is
about removing legal obstacles between adult adoptees and their
state-held records of birth. It is not about open adoption for
children and it is not about search and reunion between adoptees
and birth parents." The sponsor also argues that the historical
rationale for sealing adoption records has evolved, stating:
Adoption records were first sealed in the United States during
the World War II era with the intent of protecting adoptive
and birth parents from public scrutiny in a time when being an
unwed mother or illegitimate child was not acceptable to
society. Supporters of open records believe that states
should support restoring truth, honesty and dignity to the
adoption process. Prohibiting adoptees from obtaining their
own vital records is a relic of the past, and only perpetuates
stigmas of shame and secrecy associated with adoption.
Unconstitutional As A Violation Of The Right to Privacy. The
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California Constitution provides that, among other rights, all
people have an inalienable right to pursue and obtain privacy.
This measure raises significant concerns that its provisions may
violate the right to privacy by permitting disclosure of
identities and other information to the adult adoptee without
the consent of the birth parents.
In 1990, the Legislative Counsel issued a legal opinion at the
request of State Senator Robert Presley ( Adoption Records: Open
Access - #26071 ) on a similar proposal, concluding that "the
proposal, as applied to adoptions finalized prior to the
operative date of the proposal, would be held to be
unconstitutional as a violation of the right to privacy." The
opinion went on to state:
The right of privacy [guaranteed under Section 1 of Article
I of the California Constitution] ? requires that any
intervention be justified by a "compelling interest"...
under which the state must demonstrate that its law is
necessary, and not merely rationally related, to the
accomplishment of a permissible state purpose, which
overrides the individual's interest in privacy. ? The
right of privacy encompasses and protects the personal
intimacies of the home, the family, marriage, motherhood,
procreation, and child rearing. The right to family
privacy is directed to the integrity of the family unit. ?
With regard to adoptions finalized under existing law, the
persons directly concerned, whether they be birth parents,
adoptees, or adoptive parents each have a necessary and
legitimate expectation of privacy in determining what, if
any, and to whom, information relating to the preadoption
birth certificate should be released... Even with notice,
a person named on the preadoption birth certificate may be
unable for a variety of legitimate reasons to take such an
action [to prevent disclosure]. ... With respect to
adoptions finalized prior to the operative date of the
legislation, we can conceive of no governmental interest
which would override the interest of a party to an adoption
to keep preadoption birth certificates private.
We think that a change in state policy which would, with
the narrow exception of situations in which the physical
safety of the adoptee would be threatened, make all
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preadoption birth certificates available to the parties
named thereon, and which change is to apply to adoptions
finalized prior to the change in state policy, would
infringe on the privacy rights of the parties to those
existing adoptions who desire to be let alone... For
instance, the birth mother of a child conceived as a result
of rape, to whom the option of a legal abortion was not
available, who has kept secret that she has borne such a
child, may not wish to have her present life disrupted by
contact by the child, no matter how sincerely the child
holds the belief (albeit sometimes illusory) that the
disclosure of the identity of his or her birth parents will
result in the enhancement of his or her self-esteem.
The National Council For Adoption (NCFA) has raised privacy
concerns as well with respect to open access to sealed records,
explaining, in a position paper on the issue, "The purpose of
sealing adoption records: 1) To protect the parties to adoption
from public scrutiny; 2) To protect the integrity of the adopted
family and prevent unsolicited or unwanted interference from
others; 3) To be consistent with all other social services which
hold confidentiality as a predominant principle of ethical
practice; 4) To facilitate the grieving process for birthparents
by providing closure."
In an article entitled "Privacy and Adoption," Jeremiah Gutman
states:
It has been the practice in many, if not most,
jurisdictions to promise the birth mother at the time the
adoption decision is made that her identity will remain
secret; that the adopting agency and its personnel will
maintain the confidentiality of her identity, and will
protect her privacy in the future from being invaded as a
result of revelation of her identity. ? A pregnant woman
unable or unwilling to rear a child may find her choice of
options limited if she cannot rely upon the promise of
confidentiality and secrecy to protect her privacy. She
may be inclined to bring the pregnancy to term rather than
secure an abortion, but, if she cannot rely upon the
adoption agency or attorney and the law to protect her
privacy, and to conceal her identity for all time, her
choice to go the abortion route may be compelled by that
lack of confidence in confidentiality. ?
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In order to preserve the functioning of the adoption system
and the availability of willing adoptive parents, both
birth mothers and adoptive parents must be assured from the
very beginning that their identities will be kept secret
from the other. ("Privacy and Adoption," Jeremiah Gutman,
Adoption Factbook III (1999), p.196.)
Other States' Approaches. Other states have varying approaches
in place concerning access to sealed adoption records and birth
certificates. These include open records policies similar to
that proposed by this bill, confidential intermediary or search
and consent programs, and mutual consent registries. These
approaches are described below.
Open Records: According to the author, there are six states
that have opened adoption records. Most recently, Oregon voters
passed Measure 58, an initiative permitting adoptees over the
age of 21 to access their original birth certificates. Other
states, including Tennessee, allow adult adoptees to access
their adoption records. Under the Tennessee system, a birth
parent may register a "contact veto," violation of which is a
misdemeanor for which damages may be imposed and attorney's fees
awarded.
Both statutes were unsuccessfully challenged in court. In both
cases, the courts held that the statutes did not
unconstitutionally impair the obligations of the plaintiffs'
adoption contracts and did not unconstitutionally invade the
plaintiffs' privacy rights. ( Jane Does 1, et al. v. State of
Oregon (1999) 164 Ore. App. 543, cert. denied, 2000 U.S. LEXIS
4683; Doe v. Sundquist (1997) 106 F. 3d 702, cert. denied, 522
U.S. 810; Doe v. Sundquist (1999) 2 S.W.3d 919.) In support of
its decision upholding Measure 58, the Court of Appeals noted
that Oregon's adoption laws did not require the consent of a
birth parent to open adoption records or sealed birth
certificates. It should be noted that California, on the other
hand, requires DSS to disclose the identity and address of the
birth parent to adult adoptees in certain cases only where the
birth parent has consented to the disclosure in writing.
Furthermore, in both cases, the courts based their determination
that the statute in question did not violate the plaintiffs'
privacy rights on state constitutions that do not contain an
express right to privacy. As noted above, California's
constitution contains such an express right, and thus this
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measure's provisions arguably violate the constitutional right
to privacy by permitting disclosure of identities and other
information to the adult adoptee without the consent of the
birth parents.
Mutual Consent Registry: According to the Adoption Factbook
III, published by NCFA, about 29 states, including California,
have mutual consent registries in which identifying information
is released when the adoptee and a birth parent (in some states,
siblings and adoptive parents are also included) both register
that they would like their information disclosed. (Adoption
Factbook III (1999), p.200.) Identifying information is
released only if a match exists.
The NCFA supports mutual consent registries, stating that they
are "the best solution to the controversy over 'searching' and
access to sealed, confidential records."
( www.ncfa-usa.org/whocontent.html , visited April 12, 2001.) In
a position paper on the issue, NCFA states:
Information on the adult parties to an adoption should only
be released after all the principal parties to the adoption
(birthparent(s), adopted persons, adoptive parents) have
come forward of their own volition and without coercion to
give their expressed written consent. Since releasing or
not releasing personal, confidential information will have
a profound effect on the individual's life, the only one
who can make that decision is the person to whom the
information belongs.
The sponsor has indicated a reluctance to support a mutual
consent registry, arguing that "[r]eportedly, only very few
adoptees have gained access to their records of identity from
the use of waivers, but this is impossible to verify because the
state does not record how many people have actually requested or
submitted waivers. If only one waiver is in the file, the
agency or State Dept. of Social Services cannot solicit the
other's consent. Many adoptees and birth parents are not even
aware of this system but it is the status quo for most
California adoptions."
However, it may also be argued that the reason there are few
matches made under the mutual consent registry is because the
system is actually working. In other words, birth parents have
not registered (and thus no match is made) because they do not
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want their identifying information disclosed. And, NCFA asserts
that some open records advocates "have called for a boycott of
mutual consent registries in order to make the argument that
they do not work."
Notice of Existence of Registry: As noted above, the sponsor
argues that a mutual consent registry is not a viable option in
part because people do not know of its existence. Information
provided by the sponsor indicates that Indiana includes a notice
in vehicle registration renewals informing state residents about
the registry.
Confidential Intermediary/Search and Consent: Statistics in the
Adoption Factbook III indicate that about 12 states use a
confidential intermediary/search and consent system in which a
confidential search is performed for certain members of an adult
adoptee's birth family. For example, under the Oregon Assisted
Search Program, which is contracted out to an approved search
organization, an adult adoptee may request a search for his or
her birth parent. When the birth parent is located, he or she
is told of the request for identifying information and told that
he or she may register with the state's Mutual Consent Registry
in order to exchange information. If the birth parent decides
to register and a match is verified, the personal information of
the birth parent and the adoptee is exchanged. If, however, the
birth parent decides to keep his or her identity confidential
and declines to register, the information is not shared with the
adoptee.
These programs appear to be successful. Under Arizona's
confidential intermediary program, established in 1993, an
average of 130 days is required to perform the search and only
7% of searches are unsuccessful. (Adoption Factbook III (1999),
p.202.) According to staff with the Oregon State Office for
Services to Children and Families, 260 searches have been
assigned by their office since 1994. Of these, 138 have been
matches, and searchers have been unable to locate the family
member in only nine cases.
NCFA has expressed concerns about these systems, stating that
"any system which allows unsolicited contact or requires a
person to come forward to reaffirm one's desire for privacy is
itself a substantial intrusion." While this concern is
understandable, the confidential intermediary/search and consent
system is arguably a solid middle ground. Additionally, the
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advantage of these programs is that they contain safeguards
requiring both the adoptee and the birth parent to consent to
disclosure. And, importantly, these systems allow the birth
parent who is being sought by an adoptee to determine whether
they wish to make contact at that point in their life.
As a result, the Committee may wish to discuss with the author
the benefits of amending the bill to instead create a
confidential intermediary/search and consent program to allow
for important safeguards protecting the privacy of both birth
parents and adoptees. Such a system is arguably a solid middle
ground.
Should the Committee determine that it wishes to amend the bill
to create such a program, it may also wish to consider directing
DSS to establish eligibility standards and standards of conduct
for search organizations to ensure that the privacy and
well-being of those sought-after is maintained. For example,
the State Office for Services to Children and Families in Oregon
has developed standards for persons performing searches,
including that the individual have a minimum of two years of
experience in legal and/or psychological aspects of adoption and
adoption search and not exert any pressure upon a sought-after
person. In addition, Oregon law requires that a search be
completed within 120 days from the date of assignment.
ARGUMENTS IN SUPPORT: In support of the bill, Holt
International Children's Services states:
Recognizing the lifelong effects of adoption, Holt supports
initiatives that promote a healthy acknowledgement of the
connections between adoptees, birth and adoptive families.
Holt therefore advocates for the repeal of California
statutes that deny adult citizens who were adopted as
minors access to state-held documents recording their
births and adoptions.
Pact, An Adoption Alliance serving children of color in adoption
believes that "it is the right of all people to have access to
their own official birth record, unaltered and free from
falsification and that the legally recognized family status of
any such person not prohibit them from exercising such a right."
Concerned United Birthparents, Inc. also supports the measure,
stating:
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An adoptee's right to his or her original birth certificate
is NOT about search. Search can be done, and has been done
for years, without benefit of the information on the
original birth certificate. AB 1349 is NOT about search
and reunion. It is NOT about protecting birthmothers'
anonymity, which is a false premise anyway. It is about
the adoptee's right, a privilege available to everyone
else, to pay a fee and obtain the birth certificate that
states the true, unaltered facts of one's birth.
ARGUMENTS IN OPPOSITION: The Academy of California Adoption
Lawyers (ACAL) opposes the bill's breadth, stating that its
provision allowing access to adoption files "gives adult
adoptees access to very personal, private and confidential
information about the birth and adoptive parents that goes
beyond being able to identify their birth parents. While ACAL
may support adult adoptees being able to receive information
that would identify their birth parents, they believe that
adoption files should be kept confidential."
The Committee on Moral Concerns opposes the measure, stating:
Adoptions were made with the understanding that the records
were to remain sealed forever. Since 1984, birth parents
and adoptees have had the option of voluntarily releasing
their names so they can be located. This bill applies to
those who have chosen to maintain their privacy. These
birth parents have gone on with their lives, raising
families, paying taxes, etc., and now are faced with the
terrible fear that their deeply held, private decisions,
often made during very difficult times, will return to ruin
the lives they have built since then. ?
For many unwed mothers ? confidential adoptions offer the
only alternative to abortion. This bill will remove one of
the choices a woman has when faced with this situation.
Rather than risk loss of anonymity, many women who normally
favor adoption would choose abortion. This bill will
increase the number of abortions and decrease the number of
children available for adoption.
In opposition to the bill, the California ProLife Council, Inc.
states:
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The state should not be about the business of nullifying
confidential agreements or contracts without the agreement
of those who have entered into them. Many brave, unselfish
women over past decades have chosen to give their children
life and offer them for adoption with the hope of placing
them in more stable family situations than they personally
felt they could provide. Many of them chose to close those
chapters of their lives and they deserve to retain the
benefit of those agreements.
Prior Related Legislation.
AB 3907 (Quackenbush) of 1990 opened confidential and sealed
adoption records and birth certificates to adult adoptees and
birth parents in adoptions occurring prior to January 1, 1984.
The measure required DSS to notify the birth parent that he or
she could file a declaration to maintain the confidentiality of
the adoption file and any identifying information, although the
bill required disclosure despite the filing of such a
declaration. The bill died in the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
California Open2001 (sponsor)
Adoption Triad Ministry
American Adoption Congress
Bastard Nation
Bay Area Birthmothers Association
Concerned United Birthparents, Inc.
Holt International Children's Services
Kids & Families Together
Pact, An Adoption Alliance
Post Adoption Center for Education and Research
70 Individuals
Opposition
Academy of California Adoption Lawyers (unless amended)
California ProLife Council, Inc.
Committee on Moral Concerns
Analysis Prepared by : Saskia Kim / JUD. / (916) 319-2334
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