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laws be repealed and that “amended” birth certificates and the sealing of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.