Sealed Records & Confidentiality

For centuries, in Europe and North America, "adoption" was established and intended to protect property rights. If a couple (or individual) did not want their property to revert to the state on their death/s, an heir was necessary. Consequently, "adoption" most often took place with ADULTS, not children, to circumvent the property laws. This was of particular import to male land owners since their wives almost always outlived them, and a woman could not be a land owner. "Adoption" protected her financially by extracting a promise from the person adopted to provide for the widow.

When, in the 1920's, mothers whose children had been placed on Orphan Trains discovered too late that the promise of contact and/or return of their children was a lie, adoption (altho in existance for children by then, of course) took on a different timbre. The government had lied, breached a verbal agreement and, so, had to look at covering their backsides. The government then began establishing "policies", not laws. (Among them was the dictum to never tell the child s/he was adopted.)

Circa 1930, both NY and CA passed the "Nosey Neighbor Law". (Not so-called in CA, but the principles were the same.) The NNL's intent was clear: To shield the details of an adoption from the public. The NNL did NOT seal the records from any of the parties concerned - birth and adoptive parents OR the adoptee. All parties had access.

In the early 1930's Edna Gladney, exceptionally proficient in PR and organization, wanted to expand EGH and build up her baby business. Edna has visions of becoming the largest baby broker in the country. To do so, she had to concoct a foundation that would be solid enough to 'hold' her empire. Edna was very political, very social to that end.

In 1935, Edna and the few APs she recruited went to the Texas legislature and convinced them that in order to *encourage* adoption, the records should be sealed "to protect the child from the stigma of illegitimacy". Her presentation and argument was sufficent to BS the legislators (her "ties" were all in place), and the TX legislature gave her what she wanted. It was a law Edna touted all over the country and, as a result, the NNL was replaced by TX "model act" in other states.

What is most interesting here is that in *truth*, Edna was having a problem getting couples TO adopt. In that era, society looked at infertility as being "less-than", so to adopt was to admit infertility. It can not be over-emphasized here how pervasive it was in society that a "man" be a total "man" . . . He was not only the provider financially, but to fit the societal image, he must also be verile. In short, Edna hook-winked the legislature by using the *child* when, in fact, she was protecting the future of her empire and *that* depended on persuading couples to adopt.

Note: Following passage of that law, Gladney began opening maternity homes (and co-operative housing for pregnant women) across the country. In the late 1940's she was nailed and her wide-spread promotion (based on revenue) was severely curtailed. Altho she fought it in court, Gladney was finally threatened with potentially being forbidden to operate in many states.

The instrument of relinquishment typically states a mother is giving up her parental rights "of the MINOR child". It, then, begs the question, what happens when the child is no longer a minor?

It is NOT the relinquishment that provides "confidentiality", but the adoption law itself. Our laws are proscriptive in nature (meaning the law says what we can NOT have, be or do). Thus, we often see an adoption law state that adoption records, once sealed, shall not be made available "to any person without a court order" and often adding "for just cause". (Records are only sealed *after* the adoption is finalized, and that includes the facilitator and court records; it *sometimes* includes the hospital records, and does prohibit anyone from providing information other than a licensed adoption agency, the state, and/or the court.)

The definition for "just cause" will not be found in the law itself, but it can be found in the records during the time the bill was being discussed prior to its passing into law. (That is referred to as "legislative intent", and can be requested of any state legislature.) Most judges are unaware of what the intent might have been and, so, take it upon themselves to determine what "just cause" means.

In a few states (often the midwest), we have seen in the instrument of relinquishment the following phrase: "I promise not to search . . . and understand the penalty may be jail". This has discouraged *many* older birth mothers from searching. It overwhelmed them with guilt, for it said to them that by giving up their parental rights (whether out of wedlock or not), they were nothing more than common lowlife criminals in the performance of parental relinquishment. Since the law does not make searching a crime, the question arises: Was the relinquishment ever valid to begin with?

Obtaining documents under the Privacy Act. It should be noted that acquisition of such documents includes a "condition": the documents must be held by an agency that is funded in the majority by federal revenues. It would not include a copy of the relinquishment by a birth mother, but *may* include foster care records by an adult adoptee; however, many states destroy the foster care records after 15 years. Moreover, if the foster care records become a part of an adoption file, the sealed record law of adoption will include them.

Note: Although most state adoption laws do not address confidentiality *as such*, and/or spell out in plain English any such *guarantee*, the sealing of records itself IMPLIES confidentiality for everyone unless as exempted (i.e., adoptive parents of a minor, adoptee at majority, et al) and within the frame-work of the "exceptions" when such exist (i.e., state reunion registry, CI system, et al). Still, there is no *guarantee* implied, mandated or otherwise insured. Nowhere is this *lack* of guarantee more obvious than in the fact many Adoption Decrees include the birth mother's surname; the APs may have been given the birth mother's name; a more than fair-share of APs were given a copy of the relinquishment . . . The fact the birth mother's identity can and has been revealed more often than not means such revelation was in the 'shadows' of sealed records' laws, i.e. the identification was most often made known *before* the adoption was finalized - but not always.

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