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Hoosier Musings on the Road to Emmaus

Friday, May 30, 2003

Ethics: Open Adoption Records

Once upon a time, there were a man and a woman who loved each other very much; so much, in fact, that they decided they needed more people in their family, to share that love with. So they had a daughter, and that was very good, indeed; but there was still something missing. So they decided that they needed another person in their family, and they went to talk to some people at an adoption agency called St. Mary's.

What's an adoption agency? Well, it's a group of people that works to help bring families together-- parents who need children, and children who need parents. Of course, this takes a long time. The workers at St. Mary's visited our house, and asked a lot of questions, and talked about many things, so that they could be sure that the people they were bringing together would be just right for each other.

Then, one day, a lady from St. Mary's called and said, "We have a baby boy here, and we think you would be just the right family for him. You may pick him up tomorrow."

Tomorrow! Oh, we were so excited, and there was so much to do! We had to get down the baby crib and the baby car seat. We had to wash baby clothes and diapers. We had to go to the store, to buy baby formula and baby wipes. Yes, there was lots to do, and we had to hurry, scurry.

But finally, the next day came, and we were ready. We picked Carolyn up from school, and off we went. When we got to St. Mary's, a kind lady carried in a tiny bundle in a blanket, and asked, "Who wants to hold him first?"

"I do!" cried Carolyn, and so she sat in a chair and held her new brother, while we all looked to see you for the first time. You were beautiful! Lots of dark hair, and big round cheeks, and a little squishy nose, and wide eyes blinking in the light.

Then the kind lady asked, "What are you going to name him?"

We answered, "His name is Kyle Joseph Foster, and we will love him very much."

And that's how we came to be a family, forever and ever. Amen.


The foregoing narrative is what our son calls "The Kyle Story." It began as a bedtime tale when he was very small, as a way of beginning to let him know something of the circumstances of his birth and adoption. Of course, it is far from complete; as with many oral traditions, there are details and portions that are added and subtracted with continued retelling. The most notable omission from the narrative is mention of the birth mother. Kyle was part of what is termed a "closed" or "sealed" adoption. His birth and adoptive parents have no direct contact with one another; and, although some information was supplied through the agency, most of it was non-identifying: no names or addresses, etc. An amended birth certificate was filed with the state when his adoption was final, and the original sealed by the courts.

In recent years, however, "open" adoption has become more a common practice. In this system, the birth mother and adoptive parent(s) not only come to know one another before the child is born, but often maintain contact throughout the child's life.

The shift in societal approach that allows for open adoptions today is also reflected in the drive to open up the older system, as well. A number of adoptees have, as adults, sought to find their birthparents; likewise, there are birthparents who, after many years, decide to seek information about the children they surrendered for adoption. This process is made difficult by the legal practice of sealing adoption records. As a result, there has developed a movement to retroactively open these records, to allow them to be searched, in order to facilitate reconnection of birthparents and adoptees.

However, this desire is by no means universal. There are also many concerned parties that have no interest in either finding, or being found by, one another. They prefer not to reopen what are often painful chapters in their lives, and do not care to have the records opened to allow access without their consent. How, they ask, can someone with whom we have no legal or societal link be allowed to interrupt our lives whether or not we welcome it? In this paper I intend to speak to this conflict, and to discuss the ethical implications in light of the Christian narrative. Does the retroactive opening of legally sealed records allow release, and reconnection of broken relationship, or is it a breach of trust and confidentiality? How does the Christian ethicist speak to the present pain of detachment and unknowing, over and against the pain and fear of dredging up past hurts long closed?

In order to address these questions, I will first offer a short history of adoption practice and thought. I will also discuss the current disparity in the political arena, and the reasons given for both support and opposition. Then I will look at our story: what does scripture say about adoption and connection, respect and responsibility, and how might a Christian narrative approach to this issue be shaped?

Adoption is far from a new concept; many ancient cultures (Greeks and Romans, Egyptians and Babylonians) saw adoption as a common practice.(1) The earliest known written laws regarding adoption date to the 18th century BCE, and the Code of Hammurabi.(2) Several sections in the Code(3) deal specifically with adoption; they establish rights and responsibilities, in terms of both position and property for both adoptive parent and adoptee. As many adoptees were adults, adoption was seen as primarily an issue of inheritance, and only secondarily as child rearing. The Code, however, makes provision for both scenarios, and thereby “institutionalizes” adoption as a state-regulated system.

Later, Roman Civil Law's Institutions,(4) (written in 535 CE) codified adoption as part of the Empire's Family Law system, and refocused on the adoption of young children (those below puberty). This latter regulation, with it's emphasis on infant/child adoption, and requirement for legal sanction, became the foundation upon which much of current adoption law stands. In both of these systems, open knowledge of the circumstances surrounding an adoption seem to be considered normative. The birthparents and adoptee relinquished all rights to one another, and stiff penalties might be levied (under the Code of Hammurabi, if an adoptee returned to his/her birth family, his/her eye would be put out!)(5) but no mention is made of any effort to conceal an adoptee's family of origin.

As centuries passed, adoption once again became a most informal practice. In the United States there was no legal recognition of adoption until the mid 19th century. Prior to this time, adoption was either an unceremonious inclusion of a child into a family (especially popular in farm families, with their great need for child labor) or a form of indentured servitude, with adoption seen essentially as a "transfer of title." In 1851, Massachusetts enacted the first adoption laws, regulating the necessity of consent, and considering the ability of the adoptive family to raise a child. The Indentured Servitude was abolished by Constitutional Amendment in 1865, which put an end to that sort of "adoptive" practice. State laws regulating adoption were largely ineffectual and unenforced, honored more in form than in substance. Still, the stated concern with "the best interests of the child" was a dramatic shift in approach compared to the rest of the world, which generally saw adoption in terms of inheritance, and the needs of the adoptive family.

By the early 20th century, more concern arose regarding a birthparent’s consent being voluntary, and the state's role in ensuring the fitness of the adoptive home. Beginning in Minnesota in 1917, state legislatures began to make adoption records more private. Heretofore, they were open not only to the parties involved, but to the general public as well. Many states required birthparents to give their consent to the adoptive parents in person; and adoption proceedings, including names of the parties involved, were commonly published in newspapers.(6)

Through the 1920's the movement to completely seal records took on life, mainly through the auspices of professional social workers' organizations. The reasons for this were largely cultural, and spurred by "the attitudes, myths and mores of the time."(7) The rationale was one of confidentiality as protection. As one history states:

"The birth parents were protected from the stigma of pregnancy without the benefit of marriage.

"The adoptee was protected from the stigma of illegitimacy and the concerns of "bad blood" which was loosely connected to what we know about genetics today, but carried with it overtones of the "sins of the father." Secrecy would also prevent the confusion of having two different sets of parents and the conflict that might arise should contact occur.

"The adoptive parents, often an infertile couple, were protected from the stigma of raising an "illegitimate" child. They were protected from dealing with their infertility and from facing the differences between being a parent through adoption vs. being a parent by birth. Closed records also precluded the possibility of birth relatives seeking out the child, an event associated with potential kidnapping."(8)

Other reasons often given for sealing records included protection from intrusion into the privacy of all parties; protection from blackmail; protecting the adoptee from disturbing acts surrounding their birth (incest, rape, etc.); enhancing the adoptee's feelings of permanency; enhancing the family's stability and preserving the nuclear family; and encouraging the use of adoption instead of abortion, black market placement, child abuse, or neglect. By the early 1940’s, sealed adoption records were part of the legal practice across the nation, and adoptive parents were urged to "put the past behind," not to talk about it; in the case of infant adoptions, not to even reveal that an adoption had occurred.

Shifts and Changes
Recent trends, however, have swung away from this position.(9) Beginning in the 1960's, there began a sociological move away from "secrecy as protection," and the debate burgeoned over whether adoptees should, in fact, be told of their origins. Social service workers began to suggest that adoptees be informed, though contact with birth families was still discouraged (this was seen as a pathological need; and counseling, rather than contact, was recommended). However, some adult adoptees, upon learning of their status, began to speak openly and publicly. They saw themselves and their pasts, their narratives, as incomplete; and began trying to make contact with their biological parents.

Thus, by the mid 1970's a new dynamic was added to the process: the reunion, and media coverage of the reunion story. By the 1980's, tales told in magazines and newspapers, on radio and television, began to sway a certain amount of public sympathy-- not only for the struggles of the birthparents, and the adoptee's desires for (re)connection, but for the difficulty they experienced in the process of searching, due to legally sealed records. Activist movements, like the Adoptee’s Liberty Movement Association (ALMA),(10) Concerned United Birthparents (CUB)(11) and Bastard Nation(12) developed with a twofold purpose: to assist adoptees in the search process, and to work to overturn sealed records laws.

In the latter case, they have only been partially successful. Currently, only Alabama, Alaska, Kansas and Oregon are fully "open records states," meaning that adult adoptees can receive copies of original documentation about their adoptions with no restrictions, simply by completing an application process.(13) Other states have varying degrees of accessibility, depending upon (a) the age of the adoptee; (b) the consent or veto of the birthmother; or (c) the need for the information, as determined by court order.(14) Many states now offer an adoption registry: a intermediary system that will facilitate a search, if both parties to the adoption choose to sign up for the service, upon the adoptee reaching adulthood.

However, there is no national consensus, either in law or registry; so this is where the present political action centers. A lack of cohesive national policy makes both sides uncomfortable: search advocates struggle through myriad legal mazes, trying to find the people they seek, not knowing where they are or what rules to follow. Opponents bemoan what they perceive as a lack of protection crossing state lines.

Current Thought
Controversies that continue to swirl around the opening of birth records stem in part from the wide variety of legal practice, and in part from the disparate views of the parties involved.(15) Some adoptees have no interest in seeking out their biological families, while others desperately desire to learn about their past, their roots. Some birthparents prefer to let the painful past stay in the past, and want the protection of the law, while others eagerly hope for reconnection. Some adoptive parents welcome their children' questions, and willingly support a search, while others are threatened by what they perceive as dissatisfaction ("Aren't we good enough parents?"), and still others are afraid for their child, worrying that the reappearance of a birthparent before the adoptee is ready may be grievous and disruptive.

Likewise, there appears to be a pervasive dichotomy in our culture regarding the family status of an adopted person. As Wegar notes,(16) there is a tension between the biological and social aspects of family life, between kinship identity and bonding. Adoptees are seen simultaneously as a full members of their adoptive family, both legally and socially, and "perceived as standing outside the order of nature, as Others." Adoptive parents also feel this distinction. The standard practice of speaking of a birth parent, especially the birthmother, as the "real" or "natural" parent, is an example of the way many people see the adoptive family. Originally, the practice of sealing records was intended to alleviate this tension, by legally eliminating evidence of it. However, the tension remains, and in many cases is exacerbated by the denial of reality.

Christian Narrative
So, how does the Christian ethicist speak to this? As I understand the virtue/narrative approach, one speaks out of the character one has formed, and is forming, through the Christian narrative tradition, with the intent of maintaining one's character as a cohesive part of that tradition. Babb states it clearly when she describes it thus:

"Instead of defining ethics through actions or duties, virtue based ethical frameworks emphasize character. Duty-based ethical theorists ask, 'What should I do?' Virtue-based theorists ask,'What sort of person should I become?'"(17)

As a Christian, part of the way I am formed into the "person I should become" begins with examples (positive and negative) and teaching gleaned from the biblical narrative.

So then, what does the Bible(18) have to say about this issue? The idea of detailed record keeping, as we do today, would have been a foreign concept to our scriptural fathers and mothers. However, adoption and genealogical connections are very familiar themes.

The story of Moses begins with an adoption, as Pharaoh's daughter plucks a floating baby out of the river, and raises him as her own son, privileged grandchild to one the ancient Egyptians considered kin to the gods.(19) In modern terms, this resembles something like open adoption. Moses was raised as the son of Pharaoh's daughter, but was nursed and cared for by his biological mother "until he grew up."(20) The great leader of the Hebrew Exodus would have been the product of both his families, and conceivably always aware of his heritage; scripture records no moment of revelation, but seems to take for granted Moses' knowledge of his ancestry as an adopted child. So, though Moses is seen by some as repudiating his Egyptian upbringing, and returning to his "blood" roots, in actuality it seems more as though he simply made a choice regarding which side of his heritage to follow. At the same time, he would not have been the effective leader he was in that situation, without the connection he had to both the Israelites and the Egyptians. Full knowledge of his whole narrative allowed him to grow into that which God wanted him to be.

Another story of an adoption is noted in the book of Esther. In the beginning of this tale, the author notes that Esther was actually raised by her cousin, Mordecai, who adopted her after her parents died.(21) Again, biological heritage is no mystery, especially since Esther is raised by a family member. As an adult, she lives into her role as adopted daughter, following Mordecai’s urgings to intercede with the King and thereby saving "her people" from genocide.

Of course, from a Christian perspective, the most notable adoption story is the narrative in the Gospel of Matthew, telling the story of Jesus. Though Mary conceived Jesus through the Holy Spirit, Jesus was accepted by Joseph, and raised as Joseph's son. Joseph was responsible for naming him,(22) and Matthew even traces Jesus' ancestry through his adoptive father's family tree.(23) Like the other stories, this seems to have been common knowledge. Jesus certainly showed his awareness of his multifaceted parentage, in the scene in the Temple, to which he referred as "my father's house."(24)

These narratives address the issue of open adoption; but what about those long sealed records? There are several biblical themes that apply. The first is the importance of honesty. Those who support opening records maintain that to continue to keep them closed is to continue to lie, and to force adoptees to live a lie. This is obviously not acceptable in terms of the Christian narrative. The eighth commandment speaks directly to this, forbidding the bearing of false witness,(25) which may be interpreted to include altered birth certificates. "You shall know the truth, and the truth shall set you free,"(26) Jesus says to his followers; and search activists maintain this as a precept.

However, another theme to consider is that of promise. Opponents of opening records say that they were promised those records would remain sealed, and their confidentiality protected. Scripture refers many times to God's promises: to Abraham and his descendants,(27) to Moses,(28) to Joshua.(29) Rahab’s protection was vital to the safety of the Israelite spies, and the promises she and they made to one another saved their lives, and hers as well.(30) Over and over, the message is unequivocal: promises made are to be promises kept, and one does not lightly betray a commitment.

So, with these conflicting priorities, how do we discern an ethical path? I would suggest a closer look an overarching theme of the biblical narrative: that of community. From God's declaration in Genesis that "it is not good that man should be alone,"(31) to Jesus' promise to be "wherever two or three are gathered,"(32) to Paul's repeated references to the importance of all the believers as "the Body of Christ,"(33) there is an ongoing, pervasive emphasis on community.
This is a dynamic that flies directly in the face of the tenor of the current debate, with it's emphasis on personal liberties and individual rights. Wegar notes that "in the debate over sealed records, both search advocates and their opponents have argued that their views genuinely express the American ethos of individualism."(34) There is a distinction between the two factions, which Wegar portrays using Wuthnow's definitions of individualism and individuality. By Wuthnow's definition,

"Individualism emphasizes a concern for the moral responsibility of individuals toward other individuals, whereas individuality focuses on the moral responsibility of the individual toward his or her own self."(35)

Nevertheless, there is no reference to any concern of, by or for the larger community. I believe that the lack of a community ethic is at the foundation of the current, disparate factions in this scenario.

So, if we then turn to an ethos of community, caring for and respecting the needs of one another, what might that look like in this situation? First, I believe it removes any legitimacy from the setting apart of any member of the adoption triad, over and against the other. We cannot treat the adoptee as "other," nor look down on the birthparent, nor suggest the adoptive parent is "unnatural," if we own that each person is created in the image of God, and each is equally vital to the community that is the human family.

Secondly I believe that a sense of ourselves as community requires each side to acknowledge the other's struggle. St. Thomas Aquinas wrote that "human beings are moved by love and truth. So inherent is this drive for the truth that in human nature it becomes an imperative. To address a human being in any lesser mode is to do his nature violence."(36) We need to stop this violence; to speak honestly, but also to listen lovingly to one another. Search advocates need to realize that those who wish their records sealed may have good reason for doing so; search opponents need to admit the real hurt felt by those who long for truths long denied them.

Thirdly, focusing on community would force us to take the debate to a national level. Anything less leaves an unacceptable disparity in treatment for those affected by the issue.

Finally, I believe that a reasonable solution, and one in line with the Christian narrative ethic, is to (1) establish an active national registry, with records from all 50 states; (2) allow adoptees and birthparents access to the original birth records, once the adoptee is an adult; and (3) allow members of the triad to register whether or not they desire to be contacted, and require those who use the registry to abide by those stated wishes. This speaks to the virtue of honesty, in that those who desire their original birth certificate may then be provided the information; but also attempts to keep the "promise" to those who do not wish to be contacted, so they may continue to live "unthreatened" by the idea of an unbearable past turning up on the doorstep.

In our own case, I have no idea what Kyle will want to do when he is grown and able to make this decision. If he is not interested in searching for his birthmother, I am content, like Mary, to hold these things in my heart, and not share what he has no need to know. Likewise, I know there are disturbing memories that his birthmother may not want to face, and her wishes need to be respected.
On the other hand, if they do decide to contact one another, I will gladly help in any way I can. My reasons are twofold. First, Kyle is my son, given into my care, and part of what that means is being willing to help him to continue to grow into the whole of his own narrative, as he desires. Secondly, his birthmother, out of her own pain and struggle, gave me the incredible gift of his life to share. I have thanked God for this, and prayed for her, every day of his life; I would dearly love the opportunity to try to tell her what that gift has meant to me. I hope she will allow that.


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