I had
occasion to listen to the June 18, 2015 New York State Assembly floor debate
during which numerous members spoke on A2901A/S5964, the bill regarding adoptee
rights. I’m aware of the votes against the bill, which I gather were based on
sympathies expressed for those young women who experienced unwanted pregnancies
at a time when women in New York State didn’t have a choice whether to carry a
pregnancy to term. I heard certain members professing to advocate on behalf
of those who surrendered children for adoption, and it appears they believe such
women should be afforded somewhat specialized privacy privileges analogous to
the rights associated with a woman’s decision to terminate a pregnancy. Though
the votes have been cast and the bill passed, I feel compelled to address the
issues raised because it’s fairly clear adoption reform will continue to be on
the legislative agenda for years to come.
Let me
begin by acknowledging that in 1965, I was born to a 23 year old single woman
and placed for adoption in Onondaga County, New York. I graduated SUNY Stony
Brook in 1988 with a B.A. in psychology, and am myself a mother. I’m presently
a paralegal on Long Island with experience in both family law and general civil
litigation. I’ve also worked for several county political campaigns which I
believe helped ground me in legal and political realities.
It’s
due to my life experience that I’ve always held true a quote of Martin Luther
King, Jr.: Injustice anywhere
is a threat to justice everywhere. Where
justice is concerned, equality is a significant element - so I’d expect that
where the goals of a legislator are concerned, equality and justice are guiding
principles - along with fairness. It’s axiomatic that on social policy issues,
our elected officials are duty bound to ensure the well-being of as much of the
public as practicable.
With
the aforementioned in mind, I’m at a loss to follow the rationale for denying
adoptees the right to access their original birth certificates, including the
names of their birth parents.
I
listened carefully to what was said, and especially noted the cautious language
employed when expressing concern for women who, “believed that their anonymity would be
protected” and that the
provisions of the Adoptee Bill of Rights would result in the unsealing of a
record that, “a woman would
have assumed was...sealed and kept
confidential.” I appreciate
the scrupulous intellectual integrity of those who did not imply that birth mothers were
“promised” anonymity or that there is an “implied contract” with the state. To
be honest, I don’t doubt that some birth mothers really did believe their names
would always be held in confidence, and that some of those who facilitated
adoptions intentionally gave various young women that very impression. In my
capacity as a civil litigation paralegal, I have spent substantial time in the
courtroom, and based upon how I’ve witnessed counsel address their clients’
concerns - not to mention the gift certain judges have for creating the
impression the law provides something it actually doesn’t - I’d be shocked if
some of those arranging adoptions hadn’t engaged in some manner of evasion and
misleading of birth parents - apart from those times they were simply mistaken.
Yet the
inescapable truth is this: Blanket assurances of secrecy were highly improper
since guaranteed anonymity was always contrary to the provisions of New York
State Law. For as long as adoption records have been sealed, Domestic Relations
Law §114 always allowed any petitioner – not just the adoptee – to
request the unsealing of an adoption file, which could be granted upon a
showing of “good cause.” Since adoptions in New York State could only be
lawfully conducted within the parameters of statute (and since statute always provided for the unsealing of
records), it was never appropriate to assure a birth
mother that the government would never release her identity. Moreover, astute
legal practitioners admit that not
a word of statute need ever change for
the standard constituting “good cause” to shift, potentially lowering the bar
as to the conditions under which it would be appropriate to release a birth
parent’s identity. Case law is, of course, always redefining the scope and
applicability of statute; if it didn’t, there’d be no need for McKinney’s to
continually revise their annotations to the consolidated laws.
Notwithstanding
what representations were made to women, it is not the practice of this state
to craft law in accordance with the erroneous, irresponsible and unsupportable
statements of bench and bar, for to do so would be to found statute on the
lowest common denominator, rendering our body of law utterly bereft of the
principles of ethics, logic, and fairness. Public consensus is that New York State’s
standards of ethics would benefit from being raised,
not lowered.
But
returning to the subject of representations made to birth mothers, I draw your
attention to the testimony of Adam Pertman, former president of the Donaldson
Adoption Institute (an independent, non-partisan, non-profit research
organization and think tank) at the hearing conducted on 1/31/14 by the NYS
Assembly Standing Health Committee vis-à-vis legislation to allow adoptees
access to their original birth certificates:
"Were
there verbal statements of that, of that sort from lawyers, from social
workers, and so forth? Of course, there were...
And
there were also verbal assurances, oh, don't worry, you're going to see your
child once she's 18. So where, how come we keep one promise that was verbally
given and not another?
(Transcript
of NYS Assembly Standing Committee on Health Public Hearing, pg 93)
So
while some women surely did seek anonymity, there is yet another contingent of
females whose interests are not being advocated
for - and the evidence is that their
number far exceeds those preferring anonymity.
Data provided by the Donaldson Adoption Institute shows that over 95% of birth
mothers have no objection to having their identity released, and they actually
desire current information about the child they relinquished. There is ample
evidence that surrendering a child was hugely traumatic for the majority who
did so, and some 50% of such women ended up suffering pronounced clinical
depression thereafter. In the social climate of 1930 to 1970, surrenders could
hardly be considered “voluntary,” as they often involved coercion or were made
under duress.
There’s no
way to gauge whether the ordeal of parting with a child conceived of consensual
sex was more or less traumatic than incidents of rape and incest,
though certainly births of the latter circumstance constituted the minority of pregnancies resulting in children
surrendered for adoption. To assume relinquishing a child conceived of
consensual sex was an easier circumstance diminishes a woman’s biological
instinct and hormone-based drive to connect with her offspring. Debating which
of the two events resulted in women suffering the greater trauma necessitates
pitting two groups of women against one another; such strategies cannot be
advantageous to those truly interested in advancing women’s issues.
It’s
unfortunate that so many birth mothers – especially those whose pregnancies
were a result of non-consensual sex - were without good legal counsel (and most
frequently without any counsel all), and that certain
attorneys and judges improvidently imputed an implied contract from what’s more
accurately described as the “derivative expectation” gleaned from a reading of
adoption law combined with probability assessments from a review of case law’s
track record. When explaining the word “confidential” as it applies to court
proceedings, a close analogy is that of Family Court hearings related to
custody: the proceedings are closed to the public, the records and case file
are barred from the public, and the Court and the attorneys are, of course,
obligated to keep confidential what transpires. As to what the parties are
bound by: that’s an entirely different story, because people do have independent rights – including children - and though the
child is the subject of custody proceedings, the Court cannot order him or her
not to tell others what transpired in the courthouse, or who obtains custody. Courts
should likewise be constrained as to the limits to which adoption proceedings
bind adoptees, and an adoptee’s unadulterated birth certificate released at
their request upon reaching the age of majority.
That
may seem unfair given the fact that pregnancies resulting in adoption were
undesired. The urge may be to try and compensate for the absence of choice
women in New York State faced before 1970, especially when the pregnancy was
the result of criminal activity. However I have often stated that to provide
birth parents with any privilege or benefit (apart from a
release of their parental obligations) in exchange for the relinquishment of a
child is to turn the institution of adoption into an incidence of human
trafficking. Throw in the deprivation of rights - which amounts
to exploitation of the vulnerable (the third and final prong) and you’ve got
the complete package:
a) Conveyance of a human being without their
knowledge and/or consent;
b) Receipt of a benefit, privilege, or money in
exchange for having done so; and
c) Exploiting the conveyed individual’s
vulnerability by denying him equal rights
So even
if one contends that Domestic Relations Law §114, case law, adoption
facilitators, and society at large gave young women the impression the state
would provide them with perpetual anonymity, it then begs the question:
Should
the government really be in the business of continuing to provide such an
unethical benefit solely because women have relied upon it?
Lincoln
faced a similar conundrum when contemplating the Emancipation Proclamation, yet
he didn’t limit emancipation to those born after it was issued, or qualify
slave release on whether their owners were amenable to it. Nor were the
contracts of ownership, or the investments owners made in slave purchases, or
their reliance on state law, or slave holders’ expectation of continuing
federal tolerance of slavery deemed legal impediments to establishing the
rights of Negros. On balance, the social upheaval accompanying the end of
slavery was surely a good deal greater than what legislators face shifting
public policy on adoption.
Did
slave holders have rights and believe they were lawfully entitled to deprive
those under their control of their rights? Certainly. But principled
individuals acknowledge that philosophically, the suppression of a basic human
right is far worse than the denial of a benefit or privilege.
Ethically
speaking, it is far less egregious to tell someone, “A benefit which you relied upon
was never valid under law” than to mandate, “You are
bound for life by the terms of a contract depriving you of an inherent right,
though you never entered into such contract in the first place.”
Notwithstanding
the fact that the state wasn’t a party to the adoption contract, many believe
the Court provided consent on behalf of the child too young to enter into
agreements for his or her care, and that the “consideration” provided was an
alternate set of parents. I’ve even read assertions in case law that in providing
a relinquished child with:
a) adoptive parents with identical legal
standing as if the child was born to them;
b) an amended, replacement birth certificate which functions equally as the birth certificate
of a non-adoptee; and
c) inheritance rights commensurate with that of
an individual born to their parents,
the
state has created complete parity between adopted children and children raised
by their birth parents, and therefore there's no discrimination against
adoptees.
It’s at
this point I sigh and wonder whether anyone learned anything from Brown vs. Topeka Board of Education (347 U.S. 483 (1954)). Here
we are, 62 years later, and some still can’t wrap their minds around the
concept that though the state may ensure that all “tangible factors” for two different sets of children are
equal, because the state is differentiating
between the two groups and denying one group access to that which the other can access, they generate,
“a
feeling of inferiority as to their status in the community that may affect
their hearts and minds in a way unlikely ever to be undone.”
(Mr.
Chief Justice Warren, writing the opinion of the U.S. Supreme Court in Brown).
In the
case of adoptees, we’re speaking of hearts and minds already bearing the
knowledge that their natural parents opted to give them away.
The
corollaries between the institution of adoption and racial discrimination,
human trafficking, and the incidents and badges of slavery are not
inconsequential. Though I haven’t independently verified it, I’ve been advised
that the only other group of people in America denied access to their birth
certificates was the slaves. And of course, those enslaved were also forcibly
separated from their kin and denied communication with them. From the time I
was 7 years old, I intuited the parallels between adoption and human
trafficking, and always knew I was subject to the modern day version of it. If
that sounds extreme, consider how much of New York's Domestic Relations Law is
designed to avoid people becoming a public charge unnecessarily. I am not under
any delusions: I know that one of the reasons the state mandated permanent
eradication of my family connections was to enhance my desirability as an
adoptable infant, rather like how they oiled up the slaves before putting them
on the auction block.
In
truth, the institutions of slavery and adoption were both designed to meet
society’s goals of continued financial prosperity. Historically adoption has
relieved the state of the financial burden of supporting abandoned children. In
an age when women’s salaries were a fraction of men’s - and before definitive
paternity testing could ensure a child received financial support from both
parents - deterring unwed mothers from keeping their infants and transferring
those children to two-parent households was a way to reduce the impact of
insufficiently supported youngsters on the state welfare rolls. Needless to
say, for-profit adoption agencies also stood to contribute to state coffers via
taxation. A fair assessment of the past practices of state-licensed social
workers leaves no doubt that New York has unclean hands in their handling of
adoption, as well as in the treatment of birth mothers.
I am
not chattel, and yet I’ve been treated as such, having undergone familial
sanitization in transference from parent to parent. As an infant I was without
a voice in the proceedings which resulted in the unfairness I face in obtaining
what is rightfully mine – my unadulterated birth record - and as an adult my
state representatives have been muted by those who don’t wish to discuss the
matter. New York courts have repeatedly admonished adoptees to accept the loss
of our identities because it “is inextricably intertwined with the
Legislature’s broader sociological plan”† – a concept which conjures up the
twisted machinations of Hitler in Nazi Germany. Though one may wish to consider
this issue simply a question of privacy, one cannot escape the historical
overtones. While symbols of oppression such as the Confederate flag are being
rejected nation-wide, state sanctioned discrimination is ongoing.
_______________________
† Matter of Anonymous, 92
Misc.2d 224; Matter of Hayden,
106 Misc.2d 849.
In
fact, if one cares to witness a true violation of a woman’s privacy (along with
a disregard of the rights of birth parents) one need look no further than case
law discussing the opening of an adoption file under present statute in the Matter of Linda M. H. Hayden (106 Misc.2d 849, Special Term,
Albany County, 1981). In this
published case, Special Term ruled on an appeal from a guardian ad litem appointed to represent the unknown
natural parents insofar as the guardian sought to contact them, advise them of
their rights, and ascertain their wishes as to whether they wanted to contest
adoptee-petitioner’s request for release of their identities. Regardless of the
fact that the guardian didn’t know if he’d be advocating against his clients’
wishes, Special Term held that “it
must be presumed that it is in their interest to keep the records sealed” and that “the guardian ad litem, as an
adversary, must oppose any relief sought to open said records.”
In its
‘discretion’ - and despite the limitations of the appeal - Special Term opted
to reveal that Ms. Hayden’s affidavit requested the opening of her adoption
records, “for both medical and
psychological reasons,” that
while in utero she, “may
have received the drug DES” (known
to cause deformities to the reproductive organs of female fetuses and greatly
increase their lifetime risk of vaginal cancer) – then quoted petitioner as she
explains the psychological reasons motivating her application while also
disclosing that Ms. Hayden was under the care of a psychologist. I can’t imagine
under what contortions of logic it is deemed acceptable to expose such personal
information of an adoptee making application under Domestic Relations Law §114
while also acknowledging a need to guard the natural parents’ personal
information. Clearly a double-standard exists here: some people are entitled to
more privacy than others.
It
should therefore come as no surprise that although I’ve wanted to know my true
name* and
parentage since I was 3 years old (and have the skills to prepare a comprehensive
petition for release of my birth record completely on my own), I’ve never made
application. An idealist, I have refused to participate in legal procedures I
consider illegitimate and discriminatory, and something akin to the tests
people of color once had to pass in order to be permitted to register to vote.
The requirement that I lay bare details of my private life so as to potentially
gain access to my own personal information challenges the dignity I’ve always
sought to maintain.
_______________________
* N.Y.Soc.Serv.Law § 372: 1. Every court, and every public board…
having powers or charged with duties in relation to abandoned… or dependent
children…shall provide and keep a record showing:(a) the full and true name of the child…
The
aforesaid is why I’m not an enthusiastic proponent of A2901B/S5964A, the bill
presently pending in the 2015-2016 session. It appears to only streamline the
previous court procedure while reinforcing the concept, “Adoptees aren’t worthy
of rights others have.” In this day and age, that’s a terribly detrimental
message for legislators to be conveying to the public. I also believe that
requiring individuals to apply to court for their original birth certificates
discourages adoptees from applying at all: It’s demeaning, success isn’t
assured, and most people living lawful lives generally try to avoid the
courthouse.
At
best, A2901B/S5964A merely shifts the presumption from an adoptee never being entitled to identifying
information (absent extenuating circumstances) to an adoptee usually being entitled to identifying
information (unless someone who merits greater consideration objects). I
question whether the marginal gain for adoptees rights is worth the public
restatement of the inferior status of adoptees. Former Assemblymember Joseph
Borelli spoke of adoptees experiencing textbook de juré discrimination, whereas I spot unmistakable
state-imposed oppression.
The
effort by some elected officials to permit the release of an adoptee’s original
birth certificate only on condition of redacting the birth parents’
identifying information is especially ill-informed and insulting: for the
entire recorded history of man, one’s identity has, in part, been defined by
one’s parentage. It is the very reason why in existence today are such surnames
as Abramson, Erickson, Davidson, Johnson, Neilson, Peterson, and Thompson – and
why versions of parentage surnames exist throughout the
world and within numerous languages and cultures.
I am
cognizant of how one’s impressions are shaped by the era in which one was
raised, as well as by their knowledge of those who faced unplanned pregnancies
at a time when government offered but one alleviating option – and that option
itself was not what some thought. My education being in psychology and
sociology, I also understand how the mental phenomenon of “confirmation bias”
renders many opponents of reform legislation oblivious to the downside of
long-held beliefs, leaving one receptive only to that which supports views one
already holds - and essentially foreclosing consideration of contrary facts
supporting another opinion.
Case on
point:
Seeking
a privacy privilege for those whose who - by
happenstance of birth -
were born female and became pregnant in an age before the availability of
reliable birth control and the passage of Roe
v. Wade, yet rejecting the idea of a remedy for those who - by happenstance of birth - were born of undesired pregnancy and
relinquished in the age of secret adoption. I would anticipate such inadvertent
blind spots.
However
I remain aghast at the trailing statement put forth during the debate of
how many people may not know their personal history, not just adopted
people, and many children face traumatic life events and have no family to
connect to – from which I gather we are somehow supposed to conclude it’s
acceptable for the Legislature to maintain the status quo regarding adoptee
birth records.
I find
that to be the most intellectually disingenuous and ethically unprincipled of
all contentions put forth during the debate, for it tacitly condones
government’s actual injury to some - though preventable and
rectifiable – because others have been injured due to forces outside the Legislature’s control. This amoral
proposition could be used to justify all manner of malfeasance, whether by
individuals or by society. It also implies that an acceptable way to
statutorily address emotional injury to some is by knowingly compounding it
exponentially – and upon
innocents.
The
fact that such argument was a reiteration of an idea originally put forth by
Queens Surrogate Court Judge Peter J. Kelly lends it no credibility, for
Justice Kelly has apparently unencumbered himself of any and all responsibility
under the legal doctrine of parens
patriae to protect the psychological
health of those minor wards of this state whose adoptions his court oversaw.
The opinions of all surrogate justices on this issue are, at best,
questionable: Research reveals that even when judges believe themselves to be
impartial, they hold biases they are unaware of - and which markedly affect
their judgment.* Sadly,
New York’s surrogate judges are enamored of traditionally being given the
primary supervisory role over adoptions and, as I know all too well, over
adoptees.
_______________________
* See ADAM BENFORADO, UNFAIR: THE NEW SCIENCE OF CRIMINAL INJUSTICE, Crown Publishers (2015).
Moreover,
one cannot expect any individual vested with certain powers by virtue of public
election to voluntarily relinquish a portion of that power – even in the case
of a judge - even for the sake of justice. Obtaining
those powers was that individual’s very goal when running for election; had it
not been, that person would not have sought a judicial bench in the first
place. George Washington was aware that those in positions of authority rarely
give up power of their own accord, and it is human nature to fight to preserve
the powers one has acquired. In point of fact, Justice Kelly (Executive Chair
of the New York State Surrogates Association) used the occasion of his
1/31/2014 Assembly Health Committee testimony to beseech the Legislature to
return adoption proceedings to the surrogate court – an indication surrogate
justices of this state do begrudge areas of authority within
their jurisdiction being taken away.
Upon
hearing the U.S. Supreme Court decision determining it is unlawful to deny
couples a marriage license based on gender, the words of Assemblyman Borelli
rang in my ears about adoptees who walk into a county clerk’s office and have
similarly been turned away empty handed. I’m hard pressed to believe that my
state legislators are unable to discern the parallels between this recent decision
and what adoptees continue to experience. I am also appalled at
sitting justices of this state who pointedly ignore federal precedent,
especially Doe v. Sundquist (106 F3d 702, 705 (6th Cir), cert den 522 US 810 (1997)) which clearly sets out that relevant to
disclosure of confidential adoption records, there is no constitutional privacy
right. Indeed, for such an entitlement to even exist, one would need to have
the absolute, unequivocal right to surrender one’s children for adoption and
not bear responsibility for them whatsoever. That premise would undermine the
very foundation of New York State Family Law in its entirely.
No such
inherent privacy right from the children one has borne will ever come to
pass: For no valid “rights” argument can stand when its intent is to deprive
others – including those
amongst its own sub-class -
of more profound inherent human rights, especially rights actually recognized by the U.S.
Constitution such as equality under law and due process.
By
opposing adoptee rights, one isn’t promoting women’s rights, or even promoting
equality: One is attempting to cull a birth mother privacy benefit from the
inherent human rights and lifelong needs of adoptees: essentially trying to
expand one person’s autonomous rights into assuming dominion over the
personhood of another. And that is why such efforts must fail.
Moreover, the Donaldson Institute’s Adam Pertman made
very clear that, “...the
single biggest healing factor for women who have parted with children to
adoption is knowing that their kid is okay...it is the opposite of the
stereotype, the, the seeking privacy, anonymity, secrecy forever...” Mr. Pertman testified that if
the present policy and law is ostensibly to protect the mental health and
well-being of birth parents, the research reveals it is achieving exactly the opposite result of the law’s intended effect.
(See Transcript of NYS Assembly Standing Committee on Health Public Hearing pgs
94-95).
So
essentially what opponents of open records laws are doing is seeking to provide
a protection for women in name only, and not in practice.
It is
not just elected officials and public servants who have a duty to their fellow
man. When a woman has been subject to rape or incest – or anyone else has been
the target of traumatic crime for that matter – the survivor is not absolved of
their responsibility to society: each should still report the crime and may be
called upon to testify. This reverts back to an understanding of civic duty: we
wouldn’t condone those who'd drive by a wounded man on the side of the road
without obtaining him aid, even if they had other plans. It’s even more
reprehensible when a one motors on without obtaining aid... and one is the same
entity who operated the vehicle which injured the man. Birth mothers aren’t
intending to injure adoptees, but on this issue it is New York State
Legislators who are driving the vehicle.
Indeed,
given the wealth of evidence provided to the Assembly Standing Committee on Health as to the adverse
psychological impact that mandatory secrecy laws have had on the majority of
adoptees, it’s fair to assert the standard of “good cause” has been established
on behalf of all adoptees such that birth records
should always be provided upon request, and without
exception.
Jennifer L. Sarro
Post Office Box 43
Blue Point, New York
11715
