ConfidentialityCourt and Agency Records
In every State, adoption proceedings are confidential and held in a court that is closed to the public or in the judge's chambers. All documents pertaining to the adoption, including the original birth certificate, are sealed and kept as permanent records of the court in a locked file. These documents can be inspected only with court approval. Following an adoption, a new birth certificate is issued with the names of the adoptive parents on it.
Nonidentifying information
In every State, the adoptive parents or adult adoptee can receive limited information that does not identify the biological parents, including the medical and genetic history of the biological parents and information on their social background. Most States allow this information to be released upon request. A few States (e.g., Arkansas) allow this nonidentifying information to be released to either an adult adoptee or an adoptive parent upon a court order only for good cause; for example, if the information is needed for the adoptee's health care. Many States specify that there can be no reference to the fact that the child was born out of wedlock in any part of the adoption record.
Identifying Information
There is an ongoing controversy regarding how to balance two sometimes conflicting interests: the privacy and anonymity interests of the biological parents and the "right-to-know" interest of the adoptee. Presently, States take one of four approaches to the regulation of confidentiality.
Confidential Records: Under this approach, used in a small and declining number of States, the original birth certificate and the adoption records are kept sealed by the courts and can be inspected only with court approval, which is given on a very limited basis. Most States require the person requesting access to records to demonstrate sufficient reason for release of the identifying information. Some States define "sufficient reason" more strictly than others. The judge balances the interests of each party: the desire of the adult adoptee for information versus the biological parents' right to privacy. A small number of States with confidential records statutes use intermediaries to search for biological parents. These intermediaries serve as a liaison between the biological parents and the adult adoptee.
Open Records: In two States (Alaska and Kansas) an adult adoptee, upon request and with no restrictions, is given access to his or her adoption records or original birth certificate. Oregon and Tennessee have passed similar laws, but in each State legal challenges have deferred implementation of the law.
Search and Consent: Roughly a quarter of the States use this approach, whereby an adoption agency or intermediary investigates the location of one party upon the request of the other party who wants identifying information. If the biological parent, when found, does not consent to the release of identifying information, then the adoptee, in some cases, may petition the court to open the records.
Mutual Consent Voluntary Adoption Registries: A growing majority of the States have adopted mutual consent voluntary adoption registries. Under these registries, identifying information can be released and meetings arranged only if both adult adoptee and the biological parents agree to it. This approach establishes a central file on a State level where adult adoptees, biological parents, and in some States, adoptive parents and adoptive siblings may voluntarily register their names to give their consent to release identifying information if another party makes a request.
Some State registries maintain lists of siblings and lists of relatives of deceased adult adoptees or of deceased biological parents who have consented to identifying information being released about them. In other States, if the biological parents are deceased, the adoptee can receive information about them, unless the parents specified otherwise while they were alive.
In some States the biological father's use of the registry depends on whether he has legally acknowledged the child and admitted to being the father. In cases where his identity is unknown or his paternity is not formally established, his participation in the registry is not legally required for a match to occur between the adult adoptee and the biological mother and for identifying information to be released.
Few States require individual counseling for each party before actual disclosure to them of the identifying information. Some States not only require the biological parents and adult adoptee to consent, but also require the involvement or consent of the adoptive parents.
Open Adoption
Loosely related to confidentiality is the practice of open adoption, wherein birth parents have post adoption access to or visitation with the child. These contacts can be set forth in an agreement or contract, signed by the birth and adoptive parents and approved by the court, based upon selected criteria and conditions. The "enforceability" of these agreements between birth and adoptive parents varies. A few States by statute (e.g., Indiana, Nebraska, New Mexico, Oregon, Rhode Island, Washington) permit courts to enforce these agreements under limited circumstances. In some States, such as Ohio and Tennessee, these agreements are statutorily allowed, but are nonbinding and unenforceable. In many other states, this area is still regulated by court opinion. For example, in 1996 the Montana Supreme Court ruled that these agreements are enforceable if in the child's best interests.
Adoption Practice
The statutes discussed above are a starting point for determining the practices in your State. Agency practices, even within a State, vary tremendously. While practices cannot be contrary to the law, they may be more specific. For example, while any adult may adopt, some agencies deal only with married couples; while any child may be adopted, certain agencies handle only infants, others only adolescents, others only children with special needs, and so on. Therefore, to gain a full understanding of adoption practice in your State, both the laws and agency practices must be considered.
Source: NAIC/National Adoption Information Clearinghouse, 1999.
This publication is for general informational purposes only and it is not intended to provide any reader with specific authority, advice or recommendations. Where you deem necessary, we suggest that you seek advice regarding your particular situation from the appropriate professional.
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