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  • Update on Fictitious Birth Certificates

    Brice M. Clagett

    Published Date : April - May 1992

    I reported in the February 1990 NEXUS (7:22-23) that the NEHGS Trustees had decided to become involved in seeking reform of governmental practices that suppress genealogical data and even create fictitious vital records. The problem is the issuance of falsified birth certificates in cases of adoption, artificial insemination, and the like, and the permanent suppression of the real facts of parenthood in most such cases. These practices are still all but universal in the United States, although such countries as England and Scotland have recognized the right of adopted children to learn these facts on reaching maturity.

    Falsifying birth records is an important issue that cuts to the heart of genealogical integrity and values. The problem is not limited to fictionalizing the ancestry of children who were adopted or conceived by artificial means; it vitally concerns all of us. For over a century, a fairly uniform two percent of all children born in this country have been adopted, although the fiction-and-secrecy laws are more recent. Even if we were to disregard adoptions up to now, it is easy to show statistically that our great-great-grandchildren will have a 47% chance of having one or more adopted ancestors, beginning with us; our great-great-great-grandchildren a 72% chance; and the next generation a 99.53% chance. (Obviously these figures become even worse when the effects of artificial insemination, etc., are also considered.) If the present legal situation continues, our descendants will have no way of knowing which of their ancestors were adopted, and thus will be unable to trace any of their ancestry with confidence or to rely on any public records as accurately stating genealogical fads. This situation could mean the death of genealogy.

    On approaching the National Conference of Commissioners on Uniform State Laws, we learned that a recently appointed Committee was actively involved in revising the Uniform Adoption Act - which contains the fiction-and-secrecy provisions and were advised that our participation would be welcome. We were told that we should concentrate first on the adoption aspect, since that is the most timely. NEHGS was appointed an Observer to the Adoption Law Drafting Committee. I have attended three of its meetings, and Jerome Anderson of the NEHGS staff has attended another.

    In July 1990 the NEHGS Trustees adopted three recommendations and submitted them to the Committee. NEHGS did not recommend simply that the secrecy laws be repealed and that “amended” birth certificates and the sealing of adoption records be abolished. It is unlikely that the Conference and state legislatures will he willing to go so far. It is widely felt that biological and adoptive parents have legitimate interests in privacy, and that birth parents will be less likely to offer their children for adoption (rather than aborting them or raising them in unsuitable conditions) unless they are assured that their identity will not be disclosed without their consent.

    NEHGS made the following recommendations:

    1.  The new uniform law should contain provisions for the maximum in amount of access to adoption records by adopted children and their families that is deemed consistent with other important interests. Several recent state laws go fairly far in this direction. One of the best is the Colorado statute which provides for a voluntary registry in which birth parents and adopted children can indicate their willingness to have their identities revealed to each other, with matching of parents and children who have so consented. Where such mutual consents are not on file, the statute provides for the appointment of qualified intermediaries who have access to sealed records and will attempt (on request) to locate birth parents or adopted children to inquire whether they consent to disclosure. The law should also provide (as the Colorado statute does not) for access to sealed records as of right when a search by a qualified intermediary reveals that the birth parents are dead. In that circumstance there is no right or interest, whether of birth siblings or any other persons, that should prevail over the right of an adopted child to learn the facts of his or her origin.

    2. Every birth certificate issued following an adoption should bear a notation such as “revised” or “amended,” in order to warn researchers that the certificate may not be biologically accurate. This solution is essential the avoid the dilemma and the possible death of genealogy discussed above. There is no reason today to consider the fact of being adopted to be any sort of disgrace or even of particular sensitivity, and specialists unanimously recommend that adoption be treated in a matter-of-fact and open manner. To be fully effective, this proposal should be applied retroactively to certificates already on record, but even if this solution is deemed impractical the damage will be at least greatly limited, since biologically fictitious certificates have been the practice in most states for only a few decades.

    3. Original (biologically accurate) birth certificates and sealed adoption files should be made publicly available after the passage of an appropriate amount [56] of time, when any legitimate need for privacy has been removed by the deaths of the persons concerned. The most pertinent precedent derives from federal census records, which by law are opened after 72 years. One hundred years - the period now provided by many state laws before public availability of birth records generally would be a maximum This provision would mean that, even if many adopted children themselves are (regrettably) denied knowledge of their own family history through most or all of their lifetimes because of public-policy considerations deemed overriding, at least their descendants will not continue to be deprived of that knowledge after any possible need for such deprivation has disappeared with the passage of time.

    NEHGS’s proposals have proved far more controversial than we had hoped. There is a pervasive attitude among many people, one well represented on the Adoption Law Drafting Committee, that any law should be tailored for the sole purpose of making life as comfortable as possible for adoptive parents. There is an almost equally strong view that the way to serve these objectives is to cut off all ties between adopted children and their biological ancestry, and to regard the adoptive parents as the parents for all purposes. There seems to be almost a psychological need to obliterate the biological facts. While almost all recent scholarship takes a quite different view, some of these people hold passionately to the attitudes of half a century ago, when sterility and illegitimacy were regarded as shameful and unmentionable things to be suppressed. Adherents of this view also fear that the least interest in, or knowledge of, biological ancestry will automatically extinguish or diminish a child’s bonds with its adoptive parents. From these attitudes there tends to follow reflexively, almost irrationally, the view that the biological facts should never become available even after all parties directly concerned are dead. At best, there is a complete lack of interest in making provision for the future availability of these records.

    Strong support for such instincts come from a politically powerful group, the National Committee for Adoption, which represents some (but by no means all) adoption agencies. The National Committee is vehemently wedded to the proposition that adoption cuts off all biological ties, which by the fact of adoption should be simply eradicated and never again mentioned; it is adamantly opposed to any contact between adoptees and biological parents (except, only grudgingly, when the desire for contact is spontaneously expressed by both parties) and to any ultimate opening of records. This group is very active in attempting to influence the Adoption Law Drafting Committee, and sends several representatives to each meeting.

    An article by me on these issues was published in the National Genealogical Society Newsletter in October 1990 (16:133-34, 138), and had some success in spreading awareness of the problem. NGS received more than 200 requests for reprints. Excerpts have been included in two computer databases with wide circulation. The article was also mentioned in the Heritage Books catalog, and by Anthony J. Camp in an English publication, Family Tree Magazine (7:7 [February 1991|), with the comment: “People are beginning to wake up.”

    Both through the NGS article and otherwise we have solicited support from other genealogical organizations, and supporting letters were received from about 15 groups - a rather disappointing showing. We had more success in alerting and activating organizations of adopted children, birth parents and the like, which agree with our proposals but would go farther, and were wholly unaware of the proceedings in the Adoption Law Drafting Committee. These latter groups are now participating and, together with us, present an articulate counterpoise to the National Committee for Adoption and its allies.

    Ours is a hard battle, and to date a steeply uphill one. Even if the Adoption Law Drafting Committee and the National Conference of Commissioners on Uniform State Laws can be persuaded, the fight for enactment of legislation in each state will have only begun. Success is improbable unless far more awareness and support can be generated among the millions of Americans for whom family history is a matter of major concern We must come to realize that what is at stake is nothing less than the very survival of genealogy as a viable discipline. Inaction means that our great-great-grandchildren will have no way of knowing if they are really descended from us.

    At the Adoption Law Drafting Committee meeting on 3-5 April, the majority voted down every proposal to make it easier for adult adopted children and birth parents to learn each other’s identity. While voluntary registries of mutual consent were accepted, the majority rejected any provision for intermediaries who could inform one party that the other had expressed interest and inquire whether the consent was mutual. Any thought of notations on “revised” birth certificates was considered anathema.

    However, in a crucial victory for our side, the Committee voted, 7-2, to unseal original birth certificates and make them available to the public after 99 years. if this decision survives many more reviews by the Committee and the Conference, and if such a provision is enacted by the states, the law will contain the one minimal protection that is absolutely necessary to avoid the death of genealogy.

    NEHGS Trustee Brice McAdoo Clagett, a partner in Covington & Burling, 1201 Pennsylvania Avenue N. W., P.O. Box 7566, Washington, DC 20044, is compiling a multi-volume Clagett genealogy and a study of the ancestry of his children for 20 generations. Recent articles include an outline of the Butler descents of Dr. Charles Carroll of Annapolis, Maryland, for Journal of the Butler Society, vol. 3 (#3) (1991):352-62 and a nine-generation ancestor table for Maryland colonist James Neale in Maryland Genealogical Society Bulletin 31(1989-90):137-53. A monograph on the Gibbeses of England, Barbados and South Carolina will be published shortly.

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