The Idea of Adoption: An Inquiry into the History of Adult Adoptee Access to Birth Records
Rutgers Law Review, Vol. 53, p. 367, 2001
71 Pages Posted: 20 Aug 2001 Last revised: 22 Feb 2009 University of Baltimore – School of Law
Date Written: 2001
There has been in recent years and there continues to be intense debate around the country about whether to open original birth records to adult adoptees. Our understanding of the legal history relevant to the debate has been incomplete and inaccurate. According to this understanding, the state laws that closed court and birth records to the parties to adoptions generally closed these records for all time to all parties; the laws had a primary purpose of insuring lifelong anonymity for birth parents; and the laws became nearly universal by about the middle of the twentieth century. In fact, the history of adult adoptees’ access to birth records differs in significant ways from this understanding.
As documented in the article, a majority of the states appear to have first followed the advice of adoption experts that they seal both court and birth records (birth certificates) but preserve the right of adult adoptees to access their birth records. The rationales for sealing records were to protect adoptees from public disclosure of the circumstances of their births and to protect adoptive families from possible interference by birth parents. As late as 1960, more than forty percent of the states still had laws that allowed adult adoptees to obtain information about the identity of their birth families.
Based on this more accurate history, the article analyzes what has been a complex relationship in this area of law between legal rules and social attitudes. The analysis traces how social attitudes and understandings likely affected the construction of rules, how rules in turn appear to have affected attitudes, and how, finally, attitudes have extended and perpetuated rules. The analysis sheds light on why, after 1960, states continued to pass laws closing birth records to adult adoptees, despite both a radically changing social environment and an adoptees’ rights movement fostering greater openness in adoption. The analysis also helps explain the slowly but steadily developing trend today toward opening birth records to those whose births they record.
Keywords: adult adoptees, birth records, adoption, law
JEL Classification: K10, K39, K40