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October 16, 2006

Re: S-1087

To the Members of the Senate Health, Human Services and Senior Citizens Committee:

Thank you for this opportunity to support the passage of S-1087 which would restore the right of an adult adoptee to an accurate copy of his/her original birth record. I want to express my gratitude to Senators Vitale and Allen for their work in drafting and sponsoring this bill, and also to thank the co-sponsors for their support.

I am not part of the adoption triad (adopted child, natural parent or adopting parent). However, I did serve for 23 years as a Deputy Attorney General within the N.J. Division of Law representing the Division of Youth and Family Services in numerous guardianship (termination of parental rights) and civil child abuse/neglect cases. I retired from the Division of Law in 1999 and subsequently notified the Supreme Court that I was retired completely from the practice of law. Although I am not presenting myself as a currently active attorney, I have had a long-standing interest in the welfare and protection of children and have some familiarity with legal issues involving them.

I have several comments:

1. First, adoption is supposed to be for the primary benefit of the adopted child. New Jersey clearly has a valid state interest in supporting the institution of adoption in the best interests of those children who need it. However, once the adoptee becomes an adult, the continued sealing and/or alteration of the original birth record against the adult adoptee often does more harm than good. It is only the temporary sealing of the original birth record which may be beneficial for the adoptee and consistent with the State's valid inter est.

2. Second, the notion that a parent can give up his/her parental rights and hide his/her identity from the child is quite modern. The further notion that State Government will actually enforce a birth parent's wish to remain hidden and do so by deliberately altering and/or hiding the child's original birth record from the child himself is, in my opinion, quite radical. Unless the adoptee is somehow able to learn his biological identity by some other means, the outrageous effect of the current law is to strip the adopted person of his/her natural identity, including their genetic/medical background and their family/ethnic heritage, for their entire lifetime and well beyond any need to protect the child ado ptee. Surely, the State's involvement in this process can only be justified if there is some compelling State interest. The fact that some few birth parents may want to remain hidden from their adult offspring does not create a legitimate State interest in enforcing that wish, much less a State interest in hiding all birth parents from their relinquished adult children, including the many birth parents who would like to be found.

3. Third, when birth parents bring a new child into the world, they are creating a person who has rights equal to and co-extensive with the rights of the parents and others. Because children lack judgment and knowledge, important decisions are made on their behalf by adults, usually parents. In a typical relinquishment, the birth parent is also, de facto, making a decision on the child's behalf and surrendering the child's own right to know and be part of his/her natural family, both nuclear and extended. In general contract law, persons who turn 18 are permitted to disaffirm a contract previously made on their behalf. They are recognized as adults. Under current law, however, adult adoptees do not have this option and are forever bound and defined by the signature of the parent(s) who gave them up.

4. Fourth, the foregoing reference to "contract law" is not entirely incidental. Those who wish to keep original birth records sealed against the adult adoptee sometimes argue that numerous relinquishing parents have relied upon promises of confidentiality and privacy as a significant part of their decision to surrender. They assume that these alleged promises created some kind of agreement/contract/compact or right of privacy which State Government is required to honor and enforce. Even if there were such a contract, adult adoptees should not be treated differently than other citizens. Adult adoptees should be permitted to disaffirm decisions made on their behalf many years ago by a birth parent who no longer knows anything about them. They should have the right to make their own decisions about whether and to what extent they want to learn about their family of origin and to do so without government interference, just like the rest of us.

5. Fifth, the truth is that there is no agreement/contract/compact or right of privacy which requires State Government to maintain the anonymity of relinquishing birth parents against their own offspring. The proponents of continued secrecy never refer to actual written contracts, statutes or court opinions. The fact that some adoption agencies or lawyers may have given inappropriate assurances of confidentiality or privacy does not create a compelling interest, or even a justification, for State Government to discriminate against adult adoptees by denying them access to their own birth records.

6. Sixth, for 23 years I worked with social workers on a daily basis. As a group they are not dishonest, stupid or incompetent. Social workers and agencies in the adoption arena have been aware for decades that many adult adoptees were seeking access to their birth records by any means possible, including legislative reform. Any competent and honest front-line adoption worker would know better than to promise birth parents that their relinquished child would never see his/her birth records or that their identity would remain hidden from their offspring forever. In my view, agency heads and hie rarchies who point to these alleged promises are simply demonstrating that they are out of touch with mainstream adoption practices and are probably underestimating the professional competence of their own front-line adoption workers.

7. Seventh, in real life, the effect of the current law is arbitrary, capricious and discriminatory. The likelihood that any particular adult adoptee will know the identity of his/her birth parent(s) is extremely variable. Open adoption has become more common. In practice, throughout the history of adoption, it has not been uncommon for the adopting family to know at least the name of the natural parent(s) and to share that information with the child at a suitable age. At the time of relinquishment, agencies often ask the natural parent(s) to give their preferences with respect to future contact, to be placed in the child's agency file. If the agency still exists and the file can be found, the adult adoptee may be able to use this route to contact the natural parent(s). An adult adoptee may, for "good cause", apply to a court for release of his/her original birth record and the outcome is likely to be dependant upon the personal predilections of the judge. Adult adoptees have been known to hire private detectives, with varying results. Of course, the last two options are not available if the adult adoptee cannot afford to hire a lawyer or a private detective. Whether any particular adoptee is able to gain access to his/her own birth record and/or the information contained therein is more dependent u pon luck or upon his/her financial status than upon any coherent policy.

8. In summary, the current law inflicts gratuitous pain upon adult adoptees who need and/or want to know about their own identity and who, when they were children, were intended to be adoption’s primary beneficiaries. The current law protects no one who actually needs protecting. New Jersey State Government has no valid interest in altering and/or hiding their original birth records from adult adoptees.

Very truly yours,