Degenerative Policy Design: An Examination of Sealed Adoption Record Policy by Larry Watson, LMSW-ACP

(this is a very long entry-but it is an incredibly insightful look at these policies! please read!)

Degenerative Policy Design: An Examination of Sealed Adoption Record Policy


Public policy is often the result of a policy system influenced by social constructions that stigmatize some groups and extol the virtues of others. The societal view of each group coupled with the political power of the groups, determines the political agenda and influences the process that eventually determines the policy design. (Schneider & Ingram, 1997) This article will examine the sealed records policies that denies adult adoptees accesses to their original birth records
Few issues in American adoption policy have been so widely debated as the right of adoptees to have access to their original birth and adoption records without a court order (Wegar, 1997). Currently, only four states are open records states that allow adult adoptees access to their birth records. It is generally thought that adoption records are a single entity but, in fact, there are three sources of family information about an adopted person: (1) records of the court that approved the final adoption, (2) the state repository for birth certificates, and (3) case files of the adoption agency (Carp, 1998). This article focuses on policy related to birth certificates and adult adoptees access to those records. Examining this one issue allows us to bring the debate into clear focus. We do not examine questions related to the rights of adopted children, but instead; focus on the issues related to adults who were adopted as children. We do not examine the issues of access to adoption agency records, but only study the question as it relates to birth certificates. The debate over open vs. confidential or closed adoption is examined briefly, but only in terms of the influence of adoption professionals in the question of sealed birth records and the role of adoption agencies as stakeholders. By examining this single issue within the larger adoption policy debate, we bring into clear focus the complexity of the issues and the many layers of policy questions.
The present state of this sealed records policy and the history of adult adoptee access to birth records are explored. We examine the stakeholders in this debate—the adoptees, the adoptive parents and the birthparents and the interest groups that purport to represent them. The changing values of our society and the social constructs of each of the triad groups is explored in light of the policy debate. We look at the nature of the debate, the policy design issues and where we are on a policy shift timeline. Finally, we examine the policy options for the future.
What is the Present Policy?
Adult adoptees in all but four states in the U.S. are forbidden access to their own original birth certificates (Bastard Nation, 2003). Alabama, Alaska, Kansas and Oregon are open records states, meaning that adult adoptees can receive copies of original documentation about their adoptions just by completing an application process. Other states also provide for the release of original information with some restrictions (About Adoption, 2003). These arrangements, known as conditional access legislation, include disclosure vetoes, contact vetoes, and intermediary systems (Bastard Nation, 2003). Some states have established passive and active registries as a means to reunite willing adult adoptees and birthparents. Activists have responded that these arrangements are ineffective, they demean adult adoptees and do not remedy the fundamental denial of adoptees’ right to basic information. Troxler (2001) has stated that reunion rates achieved through state and local registries are low, ranging by one estimate from a high of 4.4% to a median of 2.05%, with the lack of higher rates attributed to factors such as being under-funded and understaffed.
The History of Sealed Records in the United States
There is a general perception that adoption birth records have been sealed throughout most of our history, but adoption records and original birth certificates have not always been sealed. Sealing records is, in fact, a relatively recent development in our nation’s history. Birth certificates themselves only came to be required in the first decades of this century. In a 2001 Rutgers Law Review article, Elizabeth J. Samuels (2001) states:
Adoption law did not proceed in a simple, single step from a period in which court and birth records were closed to the public to a period in which the records were permanently closed to all of the parties. Instead, a more complete and accurate history of the law reveals interim periods, lengthy ones in many states, in which court records were closed to all, while birth records, as recommended by social services and legal authorities, were closed to everyone except the adult adoptees whose births they registered. Laws closing adoption records to the parties were enacted not as a shield to protect birth parents from their adult children’s ever learning identity, but as a sword to prevent them from interfering with the adoptive families raising the children. (p. 228)
The history of sealed adoption records is complex and fraught with misconceptions and misunderstandings. Over the past sixty years states have sealed and unsealed their records and have from time-to-time allowed or restricted adult adoptee access. Within the ever changing approach to adoption birth records there is a general historical pattern. Samuels (2001) has made a major contribution to understanding this issue by her detailed analysis of the development of the law. The patterns with this detailed history are as follows:
In the mid-1920s there were virtually no confidentiality or secrecy provisions in adoption law.
By the mid-1930s to the early 1940s, there were more state provisions for confidentiality with respect to the general public’s access to court records, but still few provisions for secrecy among the participants.
In the 1950s states began to provide adoptees with new birth certificates (listing the adoptive parents names of the birth certificate) and provisions were developed to limit access to the public but not to the adult adoptee.
By the 1960s twenty-eight states made birth records available only by court order.
The largest number of legislative actions closing birth records took place after 1979.
The Interest Groups and Their Agendas
Social constructs of interest groups are a major factor in adoption policy design. There are several groups with a stake in the policy debate over sealed records. The obvious groups are those of the adoption triad—adoptees, adoptive parents and birthparents. The other stakeholders are the adoption agencies and the adoption professionals within the agencies. There is not clear agreement within these shareholder groups, and there are vocal advocates for either open or sealed records within each of these stakeholder groups. Subgroups within the stakeholder groups have organized in an attempt to influence public policy related to sealed adoption records. Regardless of their membership as triad member or professionals, the major organizations in this policy debate can be clearly divided as advocates of sealed records or advocates for open records.
Organizations Advocating for Sealed Records
National Council for Adoption (NCFA). The National Council for Adoption, formerly the National Committee for Adoption, is a non-profit membership organization based in Washington D.C. The organization was founded in the late 1980s as an outgrowth of the efforts of the Edna Gladney Home in Fort Worth, Texas to defeat the open records provisions of the Model State Adoption Act. This opened records to adult adoptees and instructed adoption agencies to serve as intermediaries in the search by birthparents and their adult adopted children. NCFA remains the driving force in maintaining policies for sealed records. In the 1980s, the membership of NCFA included many adoption agencies throughout the country, but as adoption practices shifted from closed adoption to open adoption, many of the agencies withdrew from membership. Today their strongest members and supporters include the Gladney Center and the Latter Day Saints Social Service (National Council for Adoption, 2003).
Organizations Advocating for Open Records
Adoptees’ Liberty Movement Association (ALMA). The Adoptees’ Liberty Movement was founded by adoptee Florence Fisher, who is the author of The Search for Anna Fisher (1971). There had been earlier critics of sealed records, but the establishment of ALMA is seen by many as the beginning of the adoption reform movement in the U.S. When ALMA was formed, it strongly asserted that adoptees had a right to their records. In more recent years ALMA has focused more on search and support activities rather than open recores activism (Adoptees’ Liberty Movement, 2003).
The American Adoption Congress (AAC). AAC was founded in 1978 as a volunteer, non-profit organization bringing together the local and regional search, support, and advocacy groups on a national level. On their website, The American Adoption Congress statement of belief declares that “growth, responsibility, and respect for self and others develop best in lives that are rooted in truth. The AAC is therefore committed to achieving changes in attitudes, policies, and legislation that will guarantee access to identifying information for all adoptees and their birth and adoptive families” (American Adoption congress, 2003, p. 1).
Concerned United Birthparents (CUB). CUB began in 1976. A small group gathered to provide mutual support for birthparents, men and women who had surrendered children to adoption. CUB is in support of open records for all and does not support legislation that opens records for adult adoptees if birthparents are not included in having equal access to the birth records (Concerned United Birthparents, 2003).
Bastard Nation (BN). Bastard Nation was established in 1996 as a website and was incorporated later in the same year. The single unifying issue for Bastard Nation is equal access to adoptees original birth certificates. On their website they state:
The only unifying concepts of BN are those of being for equal access to our own original birth certificates, combating negative stereotypes of adoptees, and providing a forum for the wide spectrum of adult adoptee experience…. We are unlike any other adoption organization: we are…without a whole truckload of associated “positions” on adoption and adoption reform. (Bastard Nation, 2003, p. 1)
Bastard Nation has been focused in its mission to redefine the issue of access to birth certificates as a struggle in terms of civil rights, empowerment and tactical activism.
State Based Groups. There are numerous other interest groups operating to influence the sealed records policy. Some are state-based such as the Texas Coalition for Adoption Resources and Education, a grass-roots organization of adult adoptees, adoptive families and biological families as well as adoption professionals, organizations and others concerned about adoption issues. The stated vision of TxCare is “to see adult adoptees have access to their original Texas birth certificates and court records and to promote improved integrity in adoption law” (Texas Coalition for Adoption Resources, 2003, p. 1).
Adoption Agency Groups. The Federation for Open Adoption and the American Association of Open Adoption agencies are two of the groups made up of adoption agencies and adoption professionals who support open records. Many adoption professionals and adoption agencies that support open records either belong to or support the work of the triad-based advocacy groups. These groups were formed to combat the impression that the NCFA speaks for all adoption agencies and adoption professionals
The Nature of the Debate: Good of Society
vs. Individual Rights
On one level, the nature of the debate on adoptees access to their birth certificates is a very complex issue, but at its core it is actually two basic beliefs that are in conflict. Those who advocate sealed adoption records view adoption as “a perfect and complete substitute for creating families through childbirth" (Samuels, 2001, p. 20) and are invested in the proposition that birthparents, once separated from their children through adoption, should have no opportunity to interfere with the family created through adoption. Conversely, those who advocate for access to birth records, believe the policy of sealed birth records denies the individual rights of adults to have information that belongs to them and is being denied to them. In their view, sealed records are based on shame associated with adoption. Although most adoption experts today agree that information about one’s adoption should not be hidden from the adoptee, opponents of adoption reform have continued to characterize institutionalized secrecy or sealed records as serving the best interest of all parties involved. Search activists, on the other hand, have argued that institutionalized secrecy reinforces rather than remedies stigmatization and shame (Wegar, 1997). The sealed records controversy is a debate between two opposing conceptions of kinship, one emphasizing the biological nature of kinship and the other emphasizing the primacy of social bonds (Wegan, 1997).
Since the first sealed records law was enacted, the major argument for sealing adoption records has been that confidentiality benefits all the parties involved, including the state, as well as public interest. Hollinger (1995) states, “Sealing the adoptees’ birth certificates was intended to ensure the adoptive parents the same rights to parental autonomy and family privacy that the birthparents once had” (p. 49). By converting the issue of confidentiality into an issue of secrecy, a practice that was formerly represented in positive terms became invested with negative social meanings. This transformation was made possible by linking claims for openness with the moral themes of sincerity, authenticity and truthfulness (Wegar, 1997).
The social construct of those seeking their birth information has changed over time. Seeking to find one's birthparents or offspring was often perceived symptomatic of underlying pathology (Wegar, 1997). The Adoption Triangle, written in 1979 by a psychiatrist and two social workers, concluded that “taking a child from one set of parents and placing him/her with another set, who pretend that the child is born to them, disrupts a basic natural process. The need to be connected with one’s biological and historical past is an integral part of one’s identity formation" (Sorosky, Baren & Panner, 1979, p. 67). In clinical and popular literature, the desire to search is no longer perceived as unreasonable or as symptomatic of underlying pathology; today a lack of interest in one's biological origins is often viewed as a sign of repression (Wegar, 1997).
Advocates of open records have chosen to attack secrecy. To insert secrets (even lies) into the domain of family, intimacy, and love provided a reaction. In the wake of federal freedom of information acts, depriving an individual of “vital facts” about her- or himself was easily constructed as a denial of “rights” (Model, 2002, p. 27). NCFA Adoption President Bill Pierce has said, “Birthparents request privacy, adoptive parents have a right to non-intrusion, and above all, children deserve to be protected from the conflicting interest of adults (Model, 2002, p. 27). Florence Fisher, however, gets to the heart of the matter when she asks, "Where else in our free society is such secrecy condoned?"
In the debate over sealed records, both the search advocates and their opponents argue that their view genuinely expresses the American ethos of individualism. Adoption professionals and policy makers who oppose change have argued that the desire of some adoptees to find their biological parents jeopardizes the social institution of adoption, which, according to their views, currently benefits the society as a whole. In contrast, by positing the “social fiction” of adoption against the “natural desire” to search, activists have portrayed the adoptees' search for their biological origins as a triumph of the individual will to self-realization over the oppression of social arrangements (Wegar, 1997).

The Policy Shift Time-Line
There have been several key events that have shaped the debate on sealed records. In 1978 President Carter convened a panel of independent experts in child welfare. The result of this panel's work was a Model State Adoption Act that would open records to adult adoptees and instruct adoption agencies to serve as intermediaries in searches by birthparents for their adult adopted children (Bastard Nation, 2003). As a reaction to this event, the National Committee for Adoption was formed and has aggressively opposed open records since that time until the present.
It was not until 1994 that the next model law was recommended in the form of the Uniform Adoption Act drafted by a study committee of the National Conference of Commissioners on Uniform State Laws. The ACT would seal adoption records for ninety-nine years. The ACT was overwhelmingly approved by the National Conference of Commissioners on Uniform Statute Laws (NCCUSL) for submission to the state legislatures. NCCUSL is a nonprofit, nonpartisan organization of more than 300 lawyers, legislators, judges, and academics who propose legislation to the states (Hollinger, 1995). The ACT is opposed by the Child Welfare League of America, National Association of Social Workers, Adoptive Families of America, Catholic Charities USA, American Adoption Congress Concerned United Birthparents, National Adoption Center Adoption Exchange Association, Children Awaiting Parents and the Joint Council on International Children’s Services (Hollinger, 1995). This ACT seemed to unite the triad advocacy groups and the professional groups in opposing the act and in supporting access to birth records by adult adoptees.
In closing her law review of sealed records laws, Elizabeth Samuels (2001) says:

Although the movement of the states toward greater openness has been slow and cautious, it has been nation wide and its pace has been accelerating sharply n recent years. The numerous passive and active registries are being supplemented or supplanted by the growing number of states opening all records, re-opening records not closed at their inception, opening records prospectively, or opening all or some records subject to disclosure vetoes by birth parents. These changes both reflect and foster the difficult process of deconstructing lifelong secrecy. It may be expected that one day the number of states opening birth records will reach a critical “tipping point,” a point after which a majority of states will reject lifelong secrecy as expeditiously as they once embraced it. (p. 104)
The Debate in the Popular Media
The popular media has been a major influence in changing the social construct of adult adoptees. In the early 1970s, the effort to reform sealed records laws and agency practices was spurred by two influential autobiographical accounts of the psychological effects of the sealed records policy—Florence Fisher’s The Search for Anna Fisher and Betty Jean Lifton’s Twice Born: Memories of an Adopted Daughter (Wegar, 1997).
Search and reunion stories of adoptees and their birth relatives are common themes often featured in books, newspapers, magazines, daytime television dramas and the talk shows. Movies in popular release have also been built on an adoption search and reunion story line. The search movement has not yet reached its goal of overturning sealed records laws, but search activists have been extraordinarily successful in attracting attention to their claims by tapping into America n ideals and values. The adoption theme, particularly the theme of searching for birth parents, has emerged as a compelling human-interest story and has inspired myriad novels, plays and movies (Wegar, 1997).
Policy Design

The policy debate concerning sealed adoption records can be viewed in the context of Schneider and Ingram’s (1997) degenerative policy-making process model. In this model, the social construction identifies four different kinds of policy targets that are based on social constructs and to the extent of the political power of each group. The authors identify these groups as: (1) advantaged (who are powerful and positively constructed); (2) contenders (powerful but negatively constructed as undeserving or greedy); (3) dependents (positively constructed as “good” people but relatively needy or helpless, who have little or no political power; and (4) deviants who have virtually no political power and are negatively constructed as undeserving, violent, mean, and so forth (Schneider & Ingram, 1997). In looking at the sealed adoption record policy question, it is instructive to view the groups as the targets of the policy within this framework. In addition to the four target groups, there are also policy entrepreneurs such as policy makers, interest group leaders, political parties, media, scientists, and others. These groups anticipate how an issue needs to be framed so that the public policies advantageous to their own cause will appear to be the only rational response (Schneider & Ingram, 1997).
The group advocating to maintain sealed records are, for the most part, members of the “advantaged” class—affluent adoptive parents. As members of this group they carry a positive social construct and are thought to be deserving. They are solidly a part of the middle to upper class. Their inability to have biological children evokes empathy and there decision to adopt is viewed as commendable. On this issue they have demonstrated their ability to organize and influence policy decisions. The most effective strategy for the closed records advocates it to continue to frame the issue as their protecting birthparents rights to privacy. This is one, if not the only, justification to oppose the adult adoptees' claim of rights to their birth records. This group must also continue to assert their claim that closed records are good for society and that their position protects children from the conflicts between adults. Adoption is a popular political issue and the advocates of sealed records will do well to promote their position as promoting family values.
The advocates of open records and their activities can best be understood by viewing them as an emergent contending group whose power lies mainly in their legal, ethical, and moral claims for equality and justice (Schneider & Ingram, 1997). In the legislative arena this group is no match for the elite advantaged group. While they may continue the policy battle in the legislatures it is most likely that the courts are their best avenue for opening birth records. As these groups continue their advocacy with the backing of the professional groups and positive portrayal in the media, their power and ability to impact the policy debate will improve. Their cause will best be served by continuing to frame open records as a justice issue and their birth records as their rights. The advocacy groups have been successful in moving the public perception of adult adoptees from a status of dependency to a status of emerging contender. Their challenge is to continue their progress toward being seeing as deserving of their rights and refuting claims that this is being done at the expense of adoptive parents are birthparents.
While it may seem contradictory, it will be wise for the adult adoptee advocacy groups to separate themselves from the birthparent advocacy groups. Birthparents are likely to be viewed, at best, a dependent group and at worst a deviant group. While birthparent advocacy groups share the goal of open records, their claim to these records are seen in a very different light. At the time of the adoption, they relinquished their rights and therefore are most likely to been seen as having no claim to re-assert those rights. Birth parents have also received a more positive public image due the popular media interest in search and reunion stories, but it will be difficult for this group to be viewed as deserving. Birthparent groups can be supportive of the efforts of adult adoptee groups, but they are not likely to have success is asserting their “rights” to open records. Their most effective role in the policy debate is to dispute the claims of the sealed records advocates that they are protecting the privacy rights of birthparents, a right which studies have shown is not wanted by almost 95% of birthparents. (Samuels, 2001)
Conclusion
Due to a change in the social constructs of adult adoptees, we are currently observing is the final stage of a policy shift from a policy of sealed adoption records to a policy of open records. Since the early voices of change in the 1970s, we have moved to a time in which open records are supported (or at a minimum, sealed records are opposed) by the majority of professional organizations. Adoption practice has moved far in the direction of openness, as have the rank and file adoption workers.
Public opinion has moved from viewing searching adult adoptees as defective or unappreciative to viewing them as people seeking information that this rightly theirs. The only group standing squarely in opposition to open records is the National Commission for Adoption and the few powerful adoption agencies and the adoptive parents that they represent. This group, however, represents adoptive parents who are politically powerful and influential
Adult adoptees actively seeking access to their birth records have moved from a position of dependency to a more powerful political presence. If there is to be a final move in policy to open records, it will most likely come from the courts and will be based on a finding of individual rights (Schneider & Ingraham, 1997). As long as the question remains in the legislative area, open records activists will continue to face attitudes that the country is not ready for this policy shift. Sealed records advocates will continue to do well in the legislative arena. Policies that favor the advantaged group, adoptive parents advocating closed records, will be implemented by written statute. The legislative strength of this group is seen in its ability to have the 1994 Uniform Adoption Act call for sealing records for ninety-nine years. The slow pace of change, in spite of the changes in professional opinion, public opinion and increased activism, can be understood by the reluctance of legislators to impose burdens on this advantaged group (Schneider & Ingram, 1997).
There are several possible scenarios that can settle the sealed records policy debate. The courts could rule that the adult adoptees have a right to their birth information, and with that the issue would be settled. Or as, Elizabeth Samuels (2001) has suggested, the legislatures will continue to move, albeit slowly, toward opening the records until we reach a critical “tipping point,” a point at which a majority of states will reject lifelong secrecy as expeditiously as they once embraced it. Or in the absence of either of these events, the informal structures of search and reunion and agency practice toward open adoption will continue until the policy of sealed records becomes moot. Regardless of the policy path taken, the time for sealed adoption records appears to be nearing its end.
References
About Adoption. Home page. Retrieved from the Web March 3, 2003. http://www.adoption.about.com/
Adoptees’ Liberty Movement. Home page. Retrieved from the Web march 3, 2003. http://almasociety.org/
American Adoption Congress. Home page. Retrieved from the Web march 3, 2003. http://www.americanadoptioncongress.org/
Bastard Nation. Home page. Retrieved from the Web March 12, 2003. http://www.bastards.org/
Carp, E. W. (1998). Family matters: Secrecy and disclosure in the history of adoption. Cambridge, MA: Harvard University Press
Concerned United Birthparents. Home page. Retrieved from the Web March 5, 2003. http://www.cubirthparents.org/
Freundlich, M. (2000). Adoption ethics (p. 8). (Vol. 2). Washington, DC: Child Welfare League of America.
Hollinger, J. H. (1995). The Uniform Adoption Act. The Future of Children: Long-Term Outcomes of Early Childhood Programs, 5(3).
Lang, S. S. (1997). Adoptive parents favor opening adoption records. Human Ecology, 25(2), 2.
Modell, J. S. (2002). A sealed and secret kinship: The culture and policies and practices in American adoption. New York: Berghahn Books.
National Council for Adoption. Retrieved from the Web March 5, 2003. http://www.ncfa-usa.org/
Open Adoption. Home page. Retrieved from the Web March 1, 2003. http://www.openadoption.org/
Samuels, E. J. (2001). The idea of adoption: An inquiry into the history of adult adoptee access to birth records. Camden, NJ: Rutgers University.
Schneider, A. L., & Ingram, H. (1997). Policy design for democracy. Lawrence, KS: University Press of Kansas
Texas Coalition for Adoption Resources. Home page. Retrieved from the Web March 11. 2003. http://www.cubirthparents.org/
Troxler, G. W. (2001). Human rights and responsibilities in adoption. Retrieved from the Web, March 11, 2001). http://americanadoptioncongress.org/regional.html
Wegar, K. (1997). Adoption, identity, and kinship. New Haven, CT: Yale University Press.