BILL ANALYSIS
AB 1349
Page 1
Date of Hearing: January 15, 2002
ASSEMBLY COMMITTEE ON JUDICIARY
Darrell Steinberg, Chair
AB 1349 (Pescetti) - As Amended: January 7, 2002
SUBJECT : BIRTH RECORDS: ADULT ADOPTEES' ACCESS
KEY ISSUE : SHOULD ADULT ADOPTEES BE ALLOWED TO ACCESS THEIR
ORIGINAL BIRTH CERTIFICATES, AND OTHER SPECIFIED BIRTH RECORDS,
REGARDLESS OF WHETHER THE BIRTH PARENTS HAVE CONSENTED TO THE
DISCLOSURE?
SYNOPSIS
This bill seeks to give adult adoptees a new right to access
their original birth certificates and other specified birth
records regardless of whether the birth parents have consented
to the disclosure. The bill also allows birth parents to
request a "contact preference form" that will accompany the
birth certificate and state whether or not the birth parents are
open to being contacted by their birth children in the future.
However the new "contact preference form" does not prevent the
release of the birth certificate, meaning the birth parents'
identifying information will still be disclosed. Under the
bill, the birth parent may also request a "medical history form"
that will also accompany the birth certificate.
As noted below in the analysis, the proposal reflects a complex
and controversial struggle of competing interests: the
protection afforded to a birth parent who has chosen
confidentiality and wishes his or her identifying information to
be kept private balanced against an adoptee's understandable and
often profound desire to obtain information which pertains to
his or her roots. The Committee has deeply struggled with what
the appropriate balance should be between these interests. The
struggle is an emotionally difficult one, as there are
compelling arguments on both sides of the debate. But
ultimately the Committee appeared to conclude forcefully last
year that existing law, the fact that the great bulk of states
in the country have struck the balance in favor of the birth
parents' confidentiality, and other less far-reaching approaches
noted below appear to all provide better ways to balance the
competing interests of birth parents and adoptees. Reflecting
the difficulty concerning the balancing of these important
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competing interests, the Committee Chairman has explored, both
this year and last, a number of compromises which have not been
acceptable to the author and his sponsor.
An alternate proposal has been suggested by one adult adoptee,
which has apparently been rejected by the author and his
supporters. However, the alternate proposal, painstakingly
developed by attorney Marsha Temple, while taking a different
approach, still appears to substantially threaten the privacy of
a birth parent.
SUMMARY : Seeks to allow adult adoptees to have a new right to
access their original birth certificates and other specified
records contained in the adopted person's file held by the State
Registrar of Vital Statistics (SRVS). Specifically, this bill :
1)Requires the SRVS to provide an adopted person 18 years of age
or older, upon receipt of a written and notarized request,
with the following:
a) a certified copy of his/her unaltered, original and
unamended birth certificate;
b) decree of adoption;
c) contact preference form, if available;
d) medical history form, if available;
e) a copy of the court report of adoption; and
f) any other documents pertaining to the adoption in the
adopted person's 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)Allows a birth parent to request, at any time, a "Medical
History Form," the contents of which are to be determined by
the SRVS. The form will accompany the birth certificate.
4)Requires the SRVS to match the Contact Preference Form and
Medical History Form with the adopted person's file and place
the completed forms in the adopted person's file.
5)Permits SRVS to charge a reasonable fee for complying with the
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provisions of the bill.
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 the Department of Social Services (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 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
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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.)
11)Provides that a plaintiff's claim for violation of the state
constitutional right to privacy must satisfy three elements in
order for a cause of action to be valid: (1) a legally
protected privacy interest must be identified; (2) the
plaintiff must have a reasonable expectation of privacy in the
circumstances; and (3) there must be a serious invasion of the
privacy interest by the defendant. Once these elements have
been satisfied, the court must then balance these privacy
concerns against other, competing important interests. ( Hill
v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1.)
FISCAL EFFECT : The bill as currently in print is keyed fiscal.
COMMENTS : This bill, sponsored by California Open2001, was
heard by the Committee on April 17, 2001 where it failed passage
with no affirmative votes. At that time, the bill permitted
adult adoptees access to the entire court record, including the
original birth certificate, pertaining to their adoption. While
the bill has now been amended to apply solely to birth
certificates and other specified birth records, it still
addresses the fundamental and weighty policy question of whether
or not a birth parent shall continue to have the long-held right
in California to protect her identity in exchange for choosing
adoption as an alternative. [This analysis will use the female
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pronoun as a convention in reference to the birth parent.
However such an approach is not meant to ignore the fact that
often there are two birth parents making the adoption decision.]
While the author and his sponsor are to be commended for their
willingness to restrict the scope of the measure, the release of
the original birth certificate to the adult adoptee without the
consent of the birth parent still appears to seriously threaten
the privacy of the very person to whom the identifying
information pertains, the birth parent. In some cases, the
birth parent may indeed welcome the disclosure of the
information and any subsequent contact that may occur. But in
other cases, the birth parent may have decided to go on with her
life and put what may have been a very painful and difficult
chapter in her life behind her while choosing the alternative of
adoption as the best way to reflect her love for her child.
The Committee has deeply struggled with what the appropriate
balance should be between a birth parent who has chosen
confidentiality and wishes his or her identifying information to
be kept private and an adoptee's desire to obtain information
which also pertains to him or her. The struggle is an
emotionally difficult one, as there are compelling arguments on
both sides of the debate. But, ultimately the Committee
appeared to conclude forcefully last year that existing law, the
fact that the great bulk of states in the country have struck
the balance in favor of the birth parents' confidentiality, and
other less far-reaching approaches noted below appear to all
provide better ways to balance the competing interests of birth
parents and adoptees.
This bill is intended to allow adult adoptees access to their
original birth certificates and other specified birth records.
In commenting on the need for the measure, the author states:
Presently, the law does not allow an individual who was
adopted a copy of his/her original, unaltered,
unamended birth certificate. The birth certificate is
about the adoptee and rightfully belongs to the
adoptee. Adoptees have a fundamental right to view
their original birth certificate. The amended birth
certificate issued at the time of adoption often
changes certain information; a new name is given to the
child, altered date/place of birth and sometimes
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changes to nationality or ethnic background. Every
person has a fundamental right to know the truth of
their birth regardless of whether or not they were
adopted.
Currently there are four states that allow adult
adoptees access to their original birth certificates:
Alabama, Alaska, Kansas, and Oregon.
Although the bill is not about search and reunion, we
have included a Contact Preference Form which will
allow birthparents to communicate to their relinquished
child their wishes regarding contact. They can choose
from 3 options: to be contacted directly by the
adoptee, naming an intermediary who they wish to make
contact through, or no contact. This gives them a
voice that they have not had in the past. The bill
also allows birthparents to file a Medical History Form
which can provide crucial and life saving medical
information to adoptees who have previously been
unaware of possible genetic and hereditary medical
conditions.
This bill simply provides to adoptees the same access
to their true state records of birth that all other
citizens currently enjoy.
Open Constitutionality Questions Surrounding The Right to
Privacy. The California Constitution provides that, among other
rights, all people have an inalienable right to pursue and
obtain privacy. Last year, the Committee analysis raised
concerns that the measure's provisions could later be found by a
state court to violate the California Constitution's unique
right to privacy by permitting disclosure of identities and
other information to the adult adoptee without the consent of
the birth parents.
In response to the concerns expressed last year concerning the
potential unconstitutionality of the bill, the proponents of the
measure argue that the bill does not violate the constitutional
right to privacy under Hill v. National Collegiate Athletic
Assn. , supra. in which the California Supreme Court outlined the
three elements of a cause of action for violation of the state
constitutional right to privacy. These three elements and the
proponents' arguments are described below.
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First, a legally protected privacy interest must be identified.
The Court noted that legally recognized privacy interests are
generally divided into two categories: (1) interests in
precluding the dissemination or misuse of sensitive and
confidential information ("informational privacy") and (2)
interests in making intimate personal decisions of conducting
personal activities without observation, intrusion, or
interference ("autonomy privacy").
The bill's proponents argue that birth parents do not have a
legally protected privacy interest protected under either
category, stating "disclosing identifying information to an
adult adoptee at least eighteen years after the birth of the
adoptee is neither a widespread dissemination nor a misuse of
sensitive and confidential information." On the other hand,
some may argue that disclosing a birth parent's name and other
identifying information contained on the birth certificate is a
misuse of sensitive and confidential information. For example,
a birth parent who understood that her name would be kept
confidential and in fact requested the court to redact her name
and other identifying information from the adoption records may
arguably feel that any subsequent disclosure of her identifying
information contained in a sealed birth certificate is a misuse
of her confidential information.
The second element required to state a claim for a violation of
the right to privacy requires that the plaintiff must have a
reasonable expectation of privacy in the information. Here, the
proponents argue that a birth parent does not have a reasonable
expectation of privacy for the following reasons:
a) the California Birth Index publishes birthmothers' names
[it should be noted that both a search of the index and the
Center for Health Statistics have indicated that the index
lists only the mother's maiden last name, not her full
name. Depending on a number of factors, including, for
example, the size of the county and the uniqueness of the
name, it may in fact be very difficult to determine the
identity of the birthmother];
b) birth records are not sealed at the time of
relinquishment, but rather at the time of adoption;
c) adoptive parents choose whether to even have a new birth
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certificate issued and the original sealed;
d) adoptive parents, as parties to the action of adoption,
have a right to view the file; and
e) adult adoptees have a right to petition the court to
view the contents of their adoption file.
The measure's proponents argue that, under California case law,
no reasonable expectation of privacy would be found given the
above set of facts. However, it may also be argued that
California law also provides an expectation of privacy to a
birth parent under other sections of the code. Numerous
provisions provide implied, if not explicit, confidentiality to
a birth parent. For example, under existing law:
a) a new, amended birth certificate shall supplant any
previously registered birth certificate and shall be the
only one open to public inspection (Health and Safety Code
section 102680);
b) a birth parent may 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
(Family Code section 9200);
c) DSS must, with respect to adoptions in which the
relinquishment for or consent to adoption was signed on or
after January 1, 1984, 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);
d) DSS must, at the time of the adoption, 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 (Family Code section 8818);
e) under a mutual consent registry, DSS or the licensed
adoption agency is permitted to facilitate contact between
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an adult adoptee and his or her birth parents if both have
filed a written consent with DSS or the agency (Family Code
section 9204); and
f) a judge may authorize any person to inspect the adoption
files only in exceptional circumstances and for good cause
approaching the necessitous (Family Code section 9200).
Because the issue of whether a birth parent has a reasonable
expectation of privacy in the information at issue is one of
first impression in California, it is unclear how the matter
might be resolved by a California court. Proponents argue that
court decisions in other states, particularly Oregon and
Tennessee where the courts upheld those states' access laws, are
persuasive and relevant to the issue at hand. However it also
appears quite possible that a California court, interpreting the
state Constitution's unique privacy provision, might find that a
birth parent does possess a reasonable expectation of privacy in
the information.
The third element required to state a claim for a privacy right
violation requires that there be a serious invasion of the
privacy interest by the defendant. Proponents argue that the
bill does not constitute a serious invasion of privacy because
"it would not allow public access to identifying information,
but rather, would limit access to those persons directly
involved in the adoption process." A birth parent may, on the
other hand, disagree that disclosure of her or his name and
other identifying information by the state does not constitute a
serious invasion of her or his privacy interest. After all,
there is nothing that prohibits the adult adoptee, once provided
with the birth parent's name by the state, to contact the birth
parent (even if a contact veto has been filed).
Once the court determines that these three elements have been
satisfied, Hill instructs that the court then balance these
privacy concerns against other, competing important interests.
Here, the proponents state:
To complete the analysis, Hill requires that the
privacy interests be balanced against other
countervailing interests, because an "[i]nvasion of a
privacy interest is not a violation of the state
constitutional right to privacy if the invasion is
justified by a competing interest." Hill at 655-656.
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As an initial matter, if a birth parent has a privacy
interest in the connection between herself and her
relinquished child, the adopted person has an identical
interest, which has to date been ignored, but which now
must be considered and balanced. What is at stake for
both adoptive parent and adoptee is the connection
between them, that is, a single connection looked at
from both sides. Whatever degree of importance may
attach to the birth parent's desire to hide from and to
avoid the relational consequences of that connection,
the same degree of importance attaches to the adoptee's
desire to learn of, and perhaps to be able to
experience the relational consequences of, that
connection.?
More compelling, however, is the adoptee's right to the
truth about his or her origins. This right to personal
autonomy is more than a competing interest, it is
fundamental and compelling. ? An adoptee's right to
access information about his or her origins implicates
a fundamental personal autonomy interest in personhood
and self-definition. When weighed against a birth
parent's presumed desire to keep the circumstances of
the adoption permanently secret from the adult her
child has become, there is simply no contest.
However, the birth parent's privacy and decision to make a
confidential adoption is a competing interest which also is
deservedly important of protection. The release of the original
birth certificate to the adult adoptee without the consent of
the birth parent who may have requested anonymity and sought
confidentiality appears to seriously threaten the privacy of the
very person to whom the identifying information pertains, the
birth parent. As noted above, the great bulk of states in the
country have struck the balance in favor of the birthparents'
confidentiality.
Promise of Confidentiality to Birth Parents. One of the
arguments often made by proponents of sealed records is that a
birth parent may choose adoption in large part based upon an
understanding that her identity will be kept confidential.
Supporters of this argument strongly argue that permitting adult
adoptees access to confidential records, including an original
birth certificate, fatally erodes this "promise" of
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confidentiality and serves as a betrayal of the expectations of
privacy upon which birth parents relied when choosing adoption
rather than other alternatives. As noted above, there are
numerous instances under California law where it may be argued
that the State provides implicit, if not explicit
confidentiality to a birth parent.
Proponents of the bill argue, on the other hand, that the State
never promised birth parents confidentiality. They argue that
sealed records laws were never about protecting the birth
parent's privacy, but instead were about protecting the adopted
child and his or her adoptive parents. In support of this
proposition, they note the following:
Legal adoption in America only came into being starting
in the second half of the 19th century, and at first
all adoption records were open to the public. When
they began to be closed, it was only to the general
public, and the intent was to protect adoptees from
public scrutiny of the circumstances of their birth.
Later, as states began to close records to the parties
themselves, they did so not to provide lifelong
anonymity for birth mothers, but the other way around -
to protect adoptive families from possible interference
or harassment by birth parents. ?
Why were states closing their records even before 1960,
when the reasons being advanced were all about
protecting adoptive families, and not birth parents?
The historical record suggests that birth mothers were
in fact seeking a measure of confidentiality.
(Elizabeth Samuels, "How Adoption in America Grew
Secret: Birth Records Weren't Closed for the Reasons
You Might Think," The Washington Post, October 21,
2001.)
However opponents of the measure argue with equal vigor that the
importance of confidentiality cannot be underestimated, and
birth parents must be able to rely on this expectation that
their identifying information will be held private. They argue
that the bill cuts at the heart of the confidence needed to make
the adoption decision.
Unclear What Other Documents May Be In The Adopted Person's File
Maintained By The State Registrar of Vital Statistics. In
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addition to the original, unamended birth certificate, this bill
requires that the SRVS provide to an adult adoptee a copy of
"any other documents pertaining to the adoption in the adopted
person's file." Committee counsel has been unable to determine
what other documents may be in the SRVS file and thus it is
unclear what information in addition to the birth certificate
and adoption decree may be disclosed. In fact, the Center for
Health Statistics, which oversees the SRVS, has indicated that
it is unclear what may be in some of the files, particularly
given that the bill's provisions would apply to adoptions
occurring many years ago. The issue has been raised that
adoptions were often handled by foundling homes many years ago
and a report from the home may have been inserted into the file,
including, perhaps, a psychological report regarding the birth
parent. As a result, it appears unclear what the effect will be
of permitting the disclosure of all documents "pertaining to the
adoption contained in the adopted person's file."
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/Birth Certificates: According to the author, there
are four states that permit adult adoptees access to their
original birth certificates: Alabama, Alaska, Kansas, and
Oregon. The sponsor has noted that adoptees may gain access to
their birth documents, with varying restrictions, in the
following states: Alabama, Alaska, Delaware, Kansas, Montana,
Oregon and Tennessee. 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.
Additionally, legislation is currently pending in Pennsylvania
which would provide that adoptees born after the bill's
effective date would be permitted access to their original birth
certificates and those adoptees born before the bill's effective
date would be permitted to obtain their original birth
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certificates only if the birth parents consent.
Mutual Consent Registry: According to the Adoption Factbook
III, a resource that has some controversy in the adoption
community, published by the National Council For Adoption
(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 and has expressed concerns about the NCFA,
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
want their identifying information disclosed. NCFA asserts that
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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.) In preparing last year's analysis of the bill, staff
with the Oregon State Office for Services to Children and
Families indicated that 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.
Last year's analysis of the bill suggested that the author
consider 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. This proposal was rejected by the author
and the bill's sponsors at the Committee hearing on the measure
and apparently is still not an alternative approach acceptable
to the bill's sponsor.
Alternate Proposal. Marsha Temple, an adult adoptee, has
drafted an alternate proposal (hereinafter called "the Temple
proposal") which was considered, but apparently rejected by the
author and the measure's sponsors. Although taking a different
approach, the Temple proposal still raises serious concerns
regarding a birth mother's privacy, as noted below. For
example, the provisions of most concern: (1) require the
disclosure of the information unless a contact veto or objection
to the release of records has been filed, similar to an
"opt-out" approach; (2) place the burden on the birth parent,
not the person seeking access, to demonstrate why the records
should not be released; and (3) require a birth parent to renew
a contact veto form or objection to the release of records every
three years.
Disclosure of information required unless contact veto or
objection to the release of records filed. Under the Temple
proposal, an adult adoptee would be permitted to obtain a copy
of his or her original birth certificate and would not be
required to obtain a court order to do so. The court would be
required to release the adoption files to the person who was the
subject of the adoption proceeding, unless a contact veto or
objection to the release of the information had been filed by
the birth parent. The Temple proposal requires DSS to notify
the public about the ability to file a contact veto or objection
to the release of information.
Such a provision raises the concern that it may not be
appropriate to release the records unless the appropriate forms
are filed. In some instances, a birth parent may not wish to be
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contacted or want the records released, but she does not file a
form because she is unaware of the ability to do so. The
approach taken by the alternate Temple proposal appears to be
analogous to an "opt-out" approach since the default is release
of the information unless an objection is filed. It is arguable
whether this is appropriate, particularly given that especially
sensitive, confidential personal information regarding the birth
parent may be concerned.
Burden on birth parent to demonstrate why records should not be
released. Under the Temple proposal, if the birth parent has
filed an objection to the release of records, the court must
release the entire court file to the adult adoptee unless the
birth parent demonstrates exceptional circumstances which would
constitute grave harm to the birth parent if the records were
released to the adoptee (Ms. Temple has indicated a willingness
to amend the grave harm standard to a lesser standard, though
this would appear unnecessary since the sponsors of the bill
have rejected this alternative proposal).
The Temple approach arguably puts the burden on the birth
parent, not the person seeking access, to come forward and
demonstrate why the records should not be released. Under
existing law, a judge may permit access to the records only "in
exceptional circumstances and for good cause approaching the
necessitous." As a result, under existing law, the petitioner,
and not the birth parent, is required to demonstrate the
exceptional circumstances and appropriate good cause. It is
questionable whether it is appropriate to switch this burden,
particularly since the birth parent may have decided, for
whatever reason, to put the adoption behind her and close that
chapter of her life. Requiring a birth parent to convince a
court that records should not be released may be particularly
intrusive and may bring up emotional issues long left behind.
Requirement that a birth parent renew a contact veto form or
objection to the release of records every three years. The
Temple proposal permits adult adoptees who do not receive their
entire court file or consent to contact their birth parents with
the opportunity to reapply for release of the adoption files
every three years. Under the proposal, if the contact veto form
or the objection to the release of records has not been renewed
in that time, the court must release the records or enter a new
order permitting the adoptee to contact any person whose name
may appear in the court file of the adoption.
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This provision raises the concern that it may not be appropriate
to require a birth parent to re-file a contact veto or objection
to the release of records every three years in order to ensure
that she is not contacted or to maintain the confidentiality of
the adoption files. Arguably, a birth parent should not have to
do this every three years and should not be disturbed over and
over in order to ensure that her desire for confidentiality and
privacy is maintained. Here, as above, the default is release
of the records unless the appropriate forms have been re-filed,
arguably inappropriate given the nature of the information at
issue.
New rights for birth parents. Suggestions have been made to the
Committee that the ability to file an objection to the release
of court records provided under the Temple proposal, is a new
right that birth parents currently do not possess. While
technically true, under existing law birth parents do not
necessarily need to file an objection to the release of records
because they have the ability to request the court to order the
county clerk not to provide adoption files for copying or
inspection to any other person unless the name of the birth
parents or any identifying information related to them is
redacted (Family Code section 9200). So, there appears to be
less of a need currently for the birth parent to object to the
release of the records. Under the Temple proposal, however, the
ability of birth parents to redact identifying information given
to the adoptee is deleted. Therefore, the approach arguably
leads to more of a need to object to the release.
ARGUMENTS IN SUPPORT: In support of the measure, the sponsor,
California Open2001, states:
Adult adoptees deserve the truth about their
identities. The birth certificate of anyone whose
adoption is finalized in California is sealed, and a
new "birth" document is legally issued. The amended
document is an abbreviated version, substituting the
names of the adoptive parents, and, in some cases, also
"amending" factual data, such as place, date and time
of birth.
Alternate methods of providing birth and identity
information have failed. California law allows adult
adoptees access to their birth records if a birth
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parent has signed a Consent Waiver. Birth parents who
are deceased, incapacitated, or don't know about the
registry do not register. Consequently, about 12,000
individuals request information each year, while an
average of fewer than 12 waivers are signed.
A few counties in California allow adoptees access to
their original birth certificates with "good cause."
Whether to open the records is left up to the
discretion and adoption bias of the judge, and most
counties do not provide this option. More importantly,
adult adoptees should not require a court order to
access the self-identifying information that is
rightfully theirs.
The right to privacy does not extend to withholding
birth information from the very person to whom it
primarily pertains. In high profile cases in Oregon
and Tennessee, our Nation's highest courts have ruled a
birthmother's right to privacy does not extend to
withholding birth information from the very person to
whom it primarily pertains - the adoptee.
In support of the bill, American Adoption Congress notes that
"because we have experienced adoption on a personal level, and
because many of our members are birth parents, we know that the
majority of birth parents desire contact with the sons and
daughters they relinquished."
Bastard Nation: The Adoptee Rights Organization states the
following in support:
The mission of Bastard Nation is focused solely on the
unqualified recognition of the civil and human rights
of adult adoptees. Throughout most of the United
States and Canada, sealed adoption records laws that
prevent adult adoptees from obtaining the
government-held records of their births and adoptions
have violated these rights for decades. We are fully
committed to bringing the era of shame and secrecy in
adoption to an end by reversing these antiquated
provisions. ? Adult adoptees everywhere have a right
to the same access to their own vital records that
other citizens enjoy and take for granted.
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Concerned United Birthparents, Inc. also supports the measure,
stating:
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.
In support, 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.
Therefore Holt 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 "adoption is a lifelong process. The existing
statutes that seal adoption records create a fundamental
severance in the process, in addition to violating the
fundamental rights of Californians to their identities."
Sunflower Birthmothers supports the measure, stating:
We are the largest organized group of birthmothers in
the country with over 800 members. The average
birthmother in my group relinquished in the 60's and
70's. As a birthmother, I know that the debate of open
records has come up many times, in many states and the
argument in each state seems to always be, birthmothers
were promised confidentiality. That I have found over
the years working with thousands of birthmothers is not
the truth. We were not promised confidentiality, and
most of us do not want it. The majority of
birthmothers in fact have spent their whole lives
worried about their child and want very much to know
what happened to them.
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What truly concerns me though is that in these open
record battles, everyone forgets the most important
thing. The birthmother should not hold the cards in
this debate, the adoptive parents should also not be
considered. What is the most important thing is that
the adoptees most basic civil right is being ignored.
They are not being treated like the rest of Americans
are. Because of the circumstance of their birth, and
because of a contract that their parent signed, they
are being forced to uphold this contract by the current
laws. They didn't sign anything, they didn't agree to
anything, yet they are not allowed their original
documents of birth like everyone else. That is
discrimination and that is the only thing that should
be considered in the bill.
Numerous individuals wrote the Committee in support of the
measure, stating, for example:
As an adoptee who has reunited with my Birthmother and
family, I can tell you how important the opportunity
is. I know from experience that finding out not only
where you came from but also genetic health information
is critical to the well being of every adoptee. Please
Give adoptees the right to find this information out.
Under existing law the burden of gaining access to
their own records and documents falls solely on
California's adult adoptees. It is time for this
burden to lift. I urge you to support AB 1349 and
California Open2001, and the community of adult
adoptees, birthparents, adoptive parents, and adoption
practitioners who comprise this campaign.
Another supporter described the emotional aspect of the debate,
stating "Adoption is such a private experience. I do not know
that I have words that can adequately explain to a non-adopted
person the questions left unanswered, following adoption. Since
I was 38 years old, when I first learned I was adopted, I have
had an intimate need to know my own beginnings. I absolutely
believe I have a legal, moral, and spiritual right to those
answers, just as any other person. California's laws and social
service system's bureaucracy have hindered many adoptees' quest
and thwarted their efforts for many, many years. Oh, how I wish
I could describe to you the impact of this. At times, it is
unbearable. After 20 years of searching, I just made contact
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with my birthmother, who is almost 80! She is so happy to have
contact with me and we have been corresponding and getting to
know each other. How we both wish it could have been sooner! It
is so healing for both of us to have a relationship!"
ARGUMENTS IN OPPOSITION: The Committee on Moral Concerns
remains opposed to the amended measure, stating:
Supporters say birth mothers should have no expectation
of privacy in the future and that open records will
strengthen adoptions. We disagree. Open adoptions are
obviously right for many people. For them, they have
that option today. But for others, eliminating the
option of confidentiality will be devastating. The
decision faced by a girl or woman with an unplanned
pregnancy is one of life's most difficult. ? The
fourth choice [confidential adoption] may be her best
to put pain, embarrassment, or social stigma behind
her. Remember, the child could be the result of an ?
intrafamily rape, date rape, or just plain stupid
event. This bill removes the fourth choice for
troubled women and girls. Because of the
confidentiality of private adoptions and the lack of
mandatory abortion reporting, statistics are impossible
to correlate. However, for some women confidentiality
is paramount, and this bill leaves them with only one
choice - abortion. ?
Supporters say that 95% of confidential birth mothers
want to be found. We disagree. Based on interviews
with adoption attorneys, we believe the number is much
lower. The Contact Preference Form in the bill will
not protect confidential birth mothers who (1) lose the
foot race to the State Registrar, (2) are unaware of
the need to seek out and pay for a state form to
protect their existing confidentiality, or (3) are
pursued by adoptees as committed to finding them as are
the bill's proponents.
In opposition to the bill, the California ProLife Council, Inc.
states:
The state should not nullify confidential agreements or
contracts without the consent of those who have entered
into them, by changing long-standing policy after the
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fact. 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 felt they could
provide. Registries that provide information when
there is mutual consent of parent and child [are]
wonderful, but those who chose to close that chapter of
their lives deserve to retain the benefit of their
expectations.
The National Council for Adoption opposes the measure,
suggesting that it "would harm the institution of adoption in
California and the rights of Californians, in many ways,"
stating:
? Advocates of open records assert that AB 1349 is only
about access to original birth records, not reunions. ?
many advocates of AB 1349 are searching for more than
birthparent names. They are searching for their
birthparents themselves, and they want the state to
help them. Notwithstanding the assertions of AB 1349's
advocates, enactment of this legislation would clearly
result in a very substantial increase in the number of
unwanted, unilaterally imposed contacts. ?
Providing adult adopted persons identifying birthparent
information without birthparents' knowledge or approval
would, of course, increase the number of unwanted,
unilaterally imposed contacts. Unwanted reunions
between adult adopted persons and birthparents are
often highly disruptive and unsatisfactory for everyone
involved, despite the rosy scenarios sometimes
portrayed in the media. From the age of majority
onward, adopted persons and birthparents who mutually
consent should be allowed to have contact. But even
then, experience shows that parties' satisfaction with
reunions and ongoing relationships is quite
unpredictable.
Opponents of AB 1349 are at a severe disadvantage,
because birthparents who oppose the bill sacrifice the
very privacy they are trying to defend when they speak
out. Open-records advocates, who desire to identify
and contact their birthparents whether or not their
birthparents consent, have nothing to lose by
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persevering in their advocacy. But birthparents whose
privacy is at stake sacrifice their privacy by
defending themselves against this bill. This
predicament is yet another unjust invasion of privacy:
to require those whose privacy is at stake to choose
between either remaining mute while their rights are
being taken away or losing their privacy in the act of
defending it.
Individuals also wrote the Committee to express opposition to
the measure, stating "It is a Mother's right to decide if she
wants to place her baby for adoption. It is her right to
privately consider and feel no pressure. If she were to abort
the baby there would be no law to say at some time later she
would face the information being made public record. At the
time of an adoption, the Mother is doing what is best for HER
child ? LEAVE HER ALONE TO DO WHAT IS BEST, not have to worry
that sometime later some person with no knowledge of why the
adoption was done [can] come to destroy both lives or even be
hurt by information they should have been protected from."
Another couple, parents of an adopted child, stated:
AB 1349 completely violates a solemn contract
established at the time of adoption, between the birth
parents, the adopting parents, the State Agencies
involved and the Courts that approve adoptions. The
adoption of our child was an open adoption, so, we know
the birth mother ? and how to locate her at any time.
However, [she] has asked us not to make that knowledge
available to our child without [her] express approval.
Certainly, there are those rare cases where a child
desperately wants to know his birth parents, and the
system now provides for ways to make those discoveries
in a mutually agreeable fashion.
Last year, the Academy of Adoption Lawyers (ACAL) opposed the
bill because it permitted access to the adoption file which
often contains confidential material about the birth and
adoptive parents. While the bill is more limited in scope and
no longer permits access to the entire adoption file, as noted
above, it is unclear what the effect will be of permitting the
disclosure of all documents "pertaining to the adoption
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contained in the adopted person's file." As a result, ACAL may
continue to have the same concerns with this year's bill as it
expressed last year. At the time of the writing of the
analysis, ACAL's position on the matter was unclear.
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)
ALMA- Adoptees' Liberty Movement Association
Adoption Connection of Jewish Family and Children's Services
Adopt International
Adoption Network Agency
Adoption Triad Ministry
Alabamians Working for Adoption Reform and Education
American Adoption Congress
Americans for Open Records
Association of Korean Adoptees of San Francisco
Association of Korean Adoptees - Southern California
Bastard Nation
Bay Area Birthmothers Association
Birthparents for Open Records Now
California Society for Clinical Social Work
Coalition of Adoptive Parents for Open Records
Concerned United Birthparents
Cooperative Adoption Consulting
FAIR- Families Adopting in Response
Holt International Children's Services
Independent Adoption Center
Kids & Families Together
Minnesota Adoption Resource Network
Pact, An Adoption Alliance
Pacer- Post Adoption Center for Education & Research
Sunflower Birthmothers
Numerous individuals
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Opposition
California ProLife Council, Inc.
Committee on Moral Concerns
National Council For Adoption
Several individuals
Analysis Prepared by : Saskia Kim / JUD. / (916) 319-2334