The Legal History of Adoption in the U.S.

“Kippa Herring” has posted several comments regarding the research of Professor Elizabeth Samuels, who published her overview of the legal history of adoption in the U.S. in the Rutgers Law Review ( Winter 2001), entitled  “The Idea of Adoption.”  Rather than print selected quotes from Samuel’s work, I’ve decided to refer you to the article so you can read it in its entirety.

Although Professor Samuels (like Kippa) is in favor of mandated open records (as opposed to the “mutual consent” approach advocated by the National Council for Adoption and myself), Samuels’ paper is helpful in providing a historical context for understanding the complexities of the issue, and how balancing the respective (often conflicting) needs and responsibilities of all three sides of the adoption triad have challenged state legislatures and social agencies alike for more than sixty years. 

For those of you who are new to this, mandated open records “unseal” original birth certificates of adult adopted children (and other persons of interest), regardless of whether the biological parents agree to having identifying information released to the (adult) child.

 

At this time, only a handful of states allow adult adoptees unrestricted access to their original records, although this is something that a variety of nationally organized advocacy groups (such as “Bastard Nation” and “Unsealed Initiative” are fighting to change). 

 

Nevertheless, adoptive parents will want to educate themselves about the issue so you can be prepared when your child broaches the subject of his birth parents. Not all adopted children decide to look for their birth parents, but most have feelings about their birth families that we — their parents — need to help them work through, even if search and reunion is not a possibility.  

 

Information is power, the saying goes. By educating ourselves about the issues surrounding adoption, we empower ourselves to give our children the support they need to reconcile and integrate the two sides of their heritage. 

 

No two families will approach this the same way. It may be that your child has no interest in finding his birth family. If he does, try to relax and not take it as a sign that he is rejecting you. From what I’ve read, there seems to be little connection between an adopted child’s desire to know his birth family and the strength of the bond he has with his adoptive parents. Just this afternoon I spoke with a radio producer whose older sister found her birth family, and yet he had no desire to do so.  

 

In any event, this article is well worth reading, no matter where in the adoptive triad you stand. 

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9 thoughts on “The Legal History of Adoption in the U.S.

  1. Thank you for posting this, Heidi.

    “Information is power, the saying goes.”
    Which is one reason, among others, why adopted people deserve to have the right to information about their origins restored to them – and I use the word “restored” deliberately, because that right was eroded and eventually lost during the middle of the 20th century.

    I would also like to include the opinion of Margaret Somerville, Canadian ethicist and academic. She is the Samuel Gale Professor of Law, Professor in the Faculty of Medicine and the Founding Director of the Faculty of Law’s Centre for Medicine, Ethics and Law at McGill University. She is a remarkable woman and someone to be taken seriously even where one disagrees with her.

    The excerpt (below) is from a 2007 panel discussion about ethical problems relating to assisted reproductive technology, but she also relates to children’s human rights in general:

    “Recently I’ve been working on children’s human rights with respect to their biological origins and biological families.
    In that work I’ve argued that we must recognize that children have human rights with respect to knowing the identity of their biological parents and, if at all possible, their immediate and wider biological families; having a mother and a father, preferably their own biological parents; and to come from natural biological origins.”

    She also says that “It is one matter for children not to know their genetic identity as a result of unintended circumstances.
    It is quite another matter to deliberately destroy children’s links to their biological parents, and especially for society to be
    complicit in this destruction.”

    You can read more here:
    http://www.canadianconstitutionfoundation.ca/files/pdf/The%20Intersection%20of%20Freedom%20-%20Margaret%20Somerville.pdf

    She also believes that emphasis should be placed on the rights of the child, so that if an adopted person seeks disclosure of their adoption records, that information should be disclosed *whether the parent who placed the child consents or not*, because everyone has the human right to know their origins.
    The reverse, on the other hand, wouldn’t necessarily hold true. In her opinion, a parent would only be entitled to information about a child who’d been placed for adoption if they consented.

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  2. “For those of you who are new to this, mandated open records ”unseal” original birth certificates of adult adopted children..”

    Also for those who are new to this it might be worth noting that adoptees do not remain children all of their lives. They do become adults. For perspective should those not adopted be referred to as adult biological children, adult natural children, adult unadopted children? Sounds rather silly, doesn’t it?

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  3. I would think that even those who are new to adoption would realize that children (by definition) grow up.

    It was a simple typo. Thanks for pointing it out.

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  4. Kippa:

    “…having a mother and a father, preferably their own biological parents; and to come from natural biological origins.”

    With regard to reproductive technology, I’d have to say that Professor (?) Sommerville is arguing against invitro and other forms of artificial reproduction, which is consistent with traditional Catholic teaching. And I fully agree that, if mandated open records becomes the norm, donor records must also be released as well. That would be simple justice — the same standard for both mother and father.

    As for the final paragraph, it’s important to distinguish between “rights” and “desires.” As “Addie” pointed out, these individuals are no longer children, but adults. “Mutual consent” would seem to be the logical middle ground.

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  5. “By educating ourselves about the issues surrounding adoption, we empower ourselves to give our children the support they need to reconcile and integrate the two sides of their heritage. ”

    I hope also the education includes the support and insight to our society as well, because the matter of adoption, as a socially constructed practice, has many effects that ripple out from it, including the general notion that human beings should have their histories without someone, anyone, especially the state, messing them up.

    The basis for the mothers who desire anonymity from their descendants seems to me a merely personal one, based on fear (which can pass), anxiety about certain people…that all may change with time and indeed reverse. I wonder how many other binding arrangements exist involving persons who were not party to the arrangement that base themselves on such personal considerations…and that extend to perpetuity…and that are supported by the courts and many other societal powers? Are you arguing that this is a right that mothers and fathers have over their descendants in general?

    It seems reasonable that a person, whoever and wherever he or she comes from, should, as a matter of human right, know where he or she comes from. There is also the matter of accountability in instances of falsified and distorted records and human trafficking. By the cloak of closed records, agencies and individuals may act without interest for the child, and the child has no rightful recourse to simply determine any facts of his origins and pursue justice should there be need for redress.

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  6. Information is power.

    From Professor Samuels:

    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.

    I am not adopted but, if I were, I would find being denied access to my original name and parentage or to be allowed it only on the consent of someone else very distressing. Whether I wanted to do anything with the information or not.

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  7. Mark: You are right that the mother has every right to change her mind with regard to privacy … mutual consent (which gives the mother eighteen years to change her mind before granting or refusing contact) provides this opportunity for her to do so.

    With regard to parents having right to withhold information from their children with regard to the past history of their descendents … Yes, parents have the right to transmit family histories as they see fit. It’s part of their job to educate their children about their past. Did YOUR parents trot out every family skeleton in your family closet? That Grandpa went to rehab, or Great Aunt Margo has no children because of a social disease, or that the woman she lives with isn’t really her cousin, or that Cousin Dale wasn’t really a twelve-pound premie, as Grandma always said?

    Bringing this closer to home, do adoptive parents who have intimate details of every kind of abuse that was inflicted on their children prior to coming to them quote chapter and verse about just how horrible and depraved their birth parents were … Or do we use prudence (and compassion) in describing the circumstances of the relinquishment, knowing that the child continues to have a bond with these people and could only be harmed by the details?

    I agree that being denied information about a birth parent could be “distressing” to an adult adoptee. The world is full of distress and suffering — and, sad to say, a great deal of it is inflicted on us by our birth families. I recently heard a talk by an adoption counselor (who was both an adult adoptee and adoptive parent) who said to us, “Reunion doesn’t resolve anything. It only changes the dynamics.” I think she was right. Many times there is no justice in this world, no “satisfaction” is possible. The best revenge we can hope for is to do a better job with our kids than our parents did with us — that is, that we don’t repeat their mistakes.

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  8. Frankly, I think the fact that you use the word “distressing” (and additionally, put it in quotation marks) says a lot.
    It’s not about “distress”.
    It’s about injustice.

    It’s about being denied a fundamental human right that’s accorded to the non-adopted as a matter of course – and consequently taken for granted by them.

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  9. Oh, for heaven’s sake, Kippa … are you LOOKING for reasons to be offended?

    I used “distressing” — and put quote marks around it — because the word was previously used by “Unsigned Masterpiece.” Go back and look at the previous comments.

    Heidi

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