The Right Side of History: 20 Years in Review

The Right Side of History. It's a phrase that has been bandied about by some adoption reform activists - BN's Marley Greiner in particular - in recent years, largely to justify their hard line, "all or nothing now (AONN)/we leave no one behind" stance regarding records access legislation for adult adoptees. Unfortunately, over the past decade, the approach has left behind nearly everyone who they claim to be trying to help. "We haven't accomplished much lately," the reasoning goes, "but we're on the right side of history."

I respectfully disagree. If anything, history argues in no uncertain terms that change is messy, meandering, incremental and full of inequities and injustices on the way to the ultimate goal of human rights or equality under the law.

Ideals notwithstanding, how many people would dare to make the following arguments in support of the claim that this sampling of imperfect, inequitable efforts have relegated those who carried them out to a place of infamy on the wrong side of history?:

- Harriet Tubman and others who operated the Underground Railroad from the late 18th century through the Civil War betrayed some 4 million enslaved people by helping some gain freedom, but leaving behind many more before the Confederacy surrendered.

- Wyoming (1890) and Colorado (1893) -- along with 25 other states, twelve of which allowed women to vote, but only in presidential elections -- betrayed women by granting their female citizens the right to vote before the 19th Amendment was ratified in 1919, making them unequal to other women nationwide.

- The Allies were wrong to evacuate 338,000 troops from Dunkirk in 1940 because 40,000 French troops and 40,000 British troops, many of whom died in prison camps, were left behind. The fact that they were surrounded, overpowered and in no position to demand unconditional surrender was irrelevant. If they couldn't rescue everyone, no one should have been rescued.

- Since doctors and researchers have not yet reached the point where they can save the lives of everyone who is HIV+, they should not administer treatment or vaccines to anyone.

These are but a few examples involving freedom, rights, war against oppression, and healing from the devastating consequences of human actions. In the context of adoption, a few cases involving enacted legislation, court rulings and a state ballot initiative have produced clear, unconditional wins. No one would love to see such wins become the norm more than I.

But consider the following fact:

Within a few days, when original birth certificates become available to Arkansas adoptees August 1, and in the span of less than three years, the estimated number of sealed original birth certificates and/or adoption record files now available to U.S. adult adoptees through a mixed bag of changes to state laws will have almost doubled. By contrast, the AONN fundamentalists have embraced a tortured new definition of success: derailing flawed bills in New York and Louisiana, which resulted, once again, in help/access for zero adoptees.

History, what say you about that?

New laws enacted in seven states [Colorado (190K files in 1/16), Hawaii (25K files in 6/16), New Jersey (300K files in 1/17), Pennsylvania (250K files in 11/17), Missouri (300K files in 1/18), Indiana (42K files* in 7/18), and Arkansas (65K files** in 8/18)] affect an estimated total 1.15 million files, nearly doubling the number made available by laws previously enacted in eight other states between 1995 and 2015.***

This dramatic increase in the pace at which laws are changing has inspired dedicated bill sponsors and advocates who continue to work in 12 more states: Connecticut, Florida, Iowa, Louisiana, Massachusetts, Michigan, Mississippi, New York, North Carolina, North Dakota, South Carolina and Texas.

Based on my observations, the award for Advocate of the Year (and there are many worthy nominees) goes to two people, each of whom has proven to be an "army of one" in their respective state. Without the aid of any local groups, paid lobbyists, keyboard warriors blasting emails at politicians, focus groups, press conferences, or slick eye-catching graphics, two adoptees -- South Carolina State Representative Patsy Knight, and Shane Carter, Director of Public Affairs and Government Relations for Clinton National Airport, working closely with adoptee and Little Rock attorney Westley Ashley** -- managed to shepherd bills through two of the nation's more conservative legislatures. Anyone who has been involved in the process knows that, even with a well-oiled machine in place, this is no small feat. A lone individual who can generate the necessary bipartisan support through their relationships, passion and persuasiveness achieves something truly remarkable. Many thanks and much honor goes to Rep. Knight and Shane Carter.

Twenty years ago, all eyes were on Tennessee as advocates fought toward a State Supreme Court ruling in Doe v. Sundquist, the case that examined retrospective changes to the law with regard to birth parent privacy vs. an adoptee's access to birth and adoption records. An appeal of Oregon's Measure 58 was not far behind in Does v. State of Oregon. Adoptees nationwide held out hopeful expectations that other states would begin to fall like dominoes. It didn't happen. Instead, each state has presented a different challenge with some new twist on power politics. Entrenched opposition lobbies join forces in galling alliances with strange bedfellows to influence powerful leaders who, in at least several cases, appear to have a blatant or covert personal agenda.

What about those states in which new laws include nondisclosure or redaction provisions for birth parents? How many adoptees could receive a doctored document? Such provisions thankfully are not factors in Colorado and Hawaii laws. New Jersey reports about 260 such requests to date, and Pennsylvania is reportedly holding steady at 18. Indiana advocates report "a handful." Missouri advocates report about 100 forms filed by birth parents, many of which actually request disclosure and contact, but the state is not tracking birth parent preferences stated on the forms. Arkansas reports 45 redaction requests from birth parents.**

Judy Foster and Pam Hasegawa of the New Jersey Coalition for Adoption Reform and Education (NJCARE) compiled data on the number of no contact/nondisclosure requests made by birth parents from 2000-2015. The number calculated to approximately one such request per 2000 sealed files. Available estimates point to a downward trend in the percentage of such requests . Assuming that even all 100 forms filed in Missouri requested nondisclosure (which they don't), the rate would be about one request per 2700 files in this most recent crop of bills (calculation updated 8/5/2018).

However, two other national statistics have been increasing dramatically:

1) the number of open or mediated adoptions in which 50-95% the adult parties know each others' identities, and

2) the number of women who relinquished children for adoption during "Baby Scoop Era" (1940-1975) who are passing away.

Such changes, along with DNA matching, are rapidly making any question of implied or real promises of birth parent anonymity in relinquishment and adoption moot.

Some hard-liners would have us believe that the recent remarkable doubling of the number of files made accessible to adult adoptees has been a disgusting betrayal of adoptee rights. Again, I disagree. If pragmatic advocates have, through a mix of near-ideal and imperfect laws, been able to help, at worst, 1999 out of every 2000 adoptees from seven more states in just three years, I call that phenomenal progress and exciting momentum. I firmly believe that History, or at least those who claim to speak for it in the future, will ultimately agree.

*Greta Sanderson of the Indiana Department of Health Office of Public Affairs reports that 42K files created between 1941 and December 31, 1993 became available as a result of the new law. Advocates believe that number is low, and estimate 180K files for the same time period. (Updated 7/31/18.)

** Statistics reported in the NW Arkansas Democrat Gazette 8/2/2018.

*** Estimates are based on comparative population information from other states in which laws have changed (HI), or reported numbers from state vital statistics offices (AR, CO, IN, MO, NJ, PA). The linked 1995-2015 chart does not include Tennessee, which, based on comparative state population, is estimated to hold some 200,000 sealed adoption files. It also omits Alaska and Kansas, which never sealed original birth certificates from adult adoptees, and WA, which enacted a new law in 2014 but was not included in the NJCARE statistical calculations. States like CT, MA, MD, MI and MT with partial/rolling access are not included in the calculation.