Presentation to Adoption Lawyers on OBC Access in Ohio

On January 17 I delivered a semi-formal presentation before a  group of mostly Columbus, Ohio adoption lawyers on the subject of adoptee rights,  OBC access, and a bill that is scheduled to be introduced in the Ohio legislature later this year that would  equalize (I hope) access for all Ohio's adopted citizens. That is, pull back to  pre-1964 unrestricted access.

I want to make clear here (and did there) that this is not a Bastard Nation bill.  It  is brought by Adoption Equity Ohio and at this time none of us know what the final language will be. Consequently, neither BN nor myself  currently supports or opposes it..  We are particularly concerned with the status of the 1996  disclosure veto, which can legally muck up unrestricted access in any state unfortunate enough to be saddled with it.  

As chair and co-founder of Bastard Nation, I was  invited to present to the group. This invitation was an opportunity to meet local adoption lawyers to discuss adoptee rights. Discussion afterwards indicted  a lack of hostility to the repeal of the current black hole. My observation over the years, in fact,  has been that OBC access with few exceptions has become no  big deal..  I hope it stays that way. 

Below is  formal version of my talk. 

Ohio Adoptee Rights Legislation, 2013

Columbus Lawyers Meeting

January 17, 2013

Presented by

Marley Greiner

Current Ohio law prohibits large numbers of the state's adopted citizens from accessing their own original birth certificates and other birth information about themselves. Adopted persons , in fact, are not only treated differently than the not-adopted, but we are separated amongst ourselves by arbitrary legislatively-set boundaries that determine who can and cannot access their original birth certificates. (obc)

Adoptees born before January 1, 1963 have unrestricted access to their original birth certificates and adoption degree. They only need to submit an affidavit to Ohio Vital Statistics.  Those born between January 1, 1964 and September 16, 1996 have no access except by court order. Those adopted after September 16, 1996 have unrestricted access unless a birthparent utilizes a special right—a right that no other parent and no other adult has over another adult—a “right” to bar another adult from receiving the public record of their own birth via a disclosure veto , which authorizes the state to withhold the release of the obc.

Current Ohio law, with its tiered system, says there is something terribly wrong with adoption as a way to build families and with those who live within those families. It forces adopted adults (and their families) who want information about themselves to beg government and adoption agency bureaucrats for scraps of information, file petitions, appear in court, join a government “reunion” registry, pay professional searchers and private investigators thousands of dollars--or spend years getting a bill, such as the one scheduled for introduction this year-- passed to get their own birth certificates. 

Ultimately, sealed birth records perpetuate a culture of wrongness and even shame around adoption. In previous legislative hearings we have heard statements of praise for parents (especially mothers) who surrender their children to adoption. Yet, if adoption were so praiseworthy, why do the people it affects most need to be hidden from each other by the government? 

Legislation to amend/ repeal the 1964-1996 tier this bill is scheduled to be introduced, in the Ohio Senate probably in February. Through the auspices of Adoption Equity Ohio. Sponsors for a companion bill in the House are currently being sought. This bill will also include a non-mandatory “contact preference form” (cpf) which will let birthparents, should they choose to utilize it, state if they want contact (or not) with the adoptee. and if so, direct or through a designated intermediary. Birthparents can also, if they choose, submit a medical history form. The “preference” will have no bearing on the release of the obc; that is, the cpf has no legal teeth that prevents the adoptee from receiving his/her obc. In states where the cpf is used only 0.01% of birthparents have indicted that they do not wish contact.

It is unclear at this time, what if anything, can be done about third tier access, and the legal standing of the tiny handful of adoptess (still minors) who may be subject to the 1996 veto provision. The State of Ohio does not track the number of disclosure vetoes filed since 1996, but we believe the number is tiny. Unfortunately, once vetoes are in place, the state has entered into a legal agreement with the requesting birthparent(s) to bar access , and that agreement cannot be abrogated without legal remedy.

Since the bill is not yet published its exact contents is unavailable but you can read more about it on the Quick Facts sheet (click on fact sheet from Learn More tab) in this file. 

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“Privacy”arguments against adoptee access are misleading. Privacy does not mean absolute, eternal anonymity or secrecy from parties with a legitimate interest in information. That is simply not the meaning of the word, either in normal discourse or in the law. Courts, in fact, have generally determined that the federal constitutional right to privacy means protection of individuals from government intrusion. The sealing of the obc from us--the people to whom they pertain--is clearly a government violation of OUR privacy and an over-reaching act of government authority over our lives.

Tennessee, Oregon, and federal courts located in those states have affirmed that adoptee access to their own birth certificates is not a breach of birthparent privacy since the document is not released to the public, but to the adopted adult to whom it pertains. 

Ohio’s current outdated law legitimizes debunked spurious claims of “implied promises of confidentiality” to birthparents—promises which apparently never existed in the state before January 1, 1964 or after September 16, 1996. These so-called “promises” have been disproved repeatedly by activists, legal scholars, historians, and in court rulings. In over 30 years of birth record access campaigns throughout the US, not one document has ever been presented by the opposition to any legislature that gives “promises of confidentiality,” “privacy” or “anonymity”-- implied or otherwise. If verbal “promises” were made by individual adoption professionals or lawyers, they were private policy statements without the force of law—or reality-- behind them. And, of course, no one can promise that a law will never change.

Identifying information about surrendering parents often appears on court documents given to adoptive parents who can at any point give that information to the adopted person. The names of surrendering parents are published in legal ads. Courts can open “sealed records” for “good cause.” In Ohio, adoptive parents can request the court at the time of adoption finalization to keep the obc unsealed. Critically, the obc is sealed at the time of adoption finalization, not surrender. If a child is not adopted, the record is never sealed. If a child is adopted, but the adoption is overturned or disrupted, the obc is unsealed. Birthparents have no say or special right in any of these procedures or decisions and at no time are anonymous.

In no state has it ever been shown that records were sealed to “protect” birthmothers’ “privacy” nor that they asked for “protection.” It was simply part of the deal forced on them if they chose to place their children for adoption. There is ample documentation in every state that sealed records laws, most of which were enacted after World War 2, were never intended to “protect” birthmothers. They were written to protect the reputations of “illegitimate” and adopted minors and the integrity of the adoptive family: to keep the public—including birthmothers—out of adoptive families’ business.

This is especially well documented in Ohio. William Norris, author of the 1964 law, later worked to undo it. In 1994 he testified  before the Ohio House Human Resource Committee in favor of HB 457, that would have restored access:

It is now obvious to me that the 1964 legislation produced an absurd anomaly in Ohio, and it is painful to reflect on the fact that these changes in the law were made in the belief that they were in the best interests of the entire adoptive process. …The 1964 law has not worked out in the way it was originally intended and it should be changed by the passage of a new law such as HB 457. (5)

See Mr. Norris' testimony before the Ohio House Human Resources Committee in support of the restoration of obc access

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This is the 21st century. The information superhighway grows wider and longer each day, and adoptees and their families are on it. Thousands of successful adoption searches happen each year—hundreds in Ohio alone—nearly all without the obc. The Internet has made adoption secrecy virtually impossible. In December 2012 The Evan B. Donaldson Adoption Institute published a report, Untangling the Web: The Internet's Transformative Impact on Adoption, which includes a section on how the Internet has eased adoption searches.

Moreover, in this age of heightened security, the government requires all of us to prove our identities and citizenship-- legal paper trail of identity. As a result, adopted persons without an obc are in danger of losing even more rights than just their obc access. US-born adoptees report increased problems in obtaining driver’s licenses, passports, professional certifications, Social Security benefits, pensions and security clearances due to what government bureaucrats refer to as “irregularities” in their amended birth certificates.  In the wake of the Obama “birther” movement, about a dozen state legislatures have seen bills that would require anyone running for president (and in some cases other offices) to present an original birth certificate to prove his/her place of birth. The amended birth certificate of an adoptee would not suffice.

A major irregularity is a “late birth certificate (filed a year or more after the birth). According to the US Department of State a “late birth certificate” may only be accepted for passport application if it lists the documentation used to create it and is signed by the attending physician or midwife, or, lists an affidavit signed by the parents, or shows early public records. Recent proposed passport changes are even more stringent.

Other “irregularities” include age discrepancies between parents and child, missing information., and irregular signatures (ex: typed rather than signed). This problem will grow with the increase in adoption of older children from fostercare and adoptions by same sex couples.

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Adopted people want their original birth certificates for many reasons. But reasons are immaterial We have a right to the facts about our births, origins, and adoptions. We have a right to do whatever we please with the information found on our birth certificates, just as the not-adopted do. We should not be parsed, chopped, spindled and mutilated.
The right to the public record of our births is not some radical controversial idea or an attack on adoption. Ohio's most famous adoptee and the country's most generous advocate of adoption, the late Dave Thomas, certainly didn’t think so.

In an interview for Adam Pertman’s book, Adoption Nation: How the Adoption Revolution is Transforming America, Thomas said, “Those things are controversial for people who have never been adopted, who really don’t understand. Everyone should be able to get their birth certificate, their own information. I’d hate to think I couldn’t get mine.” Thomas, in fact, did have his original birth certificate, given to him by his adoptive grandmother.