Texas-born adoptee Shawna Hodgson spent a decade trying to learn more about her personal history. She spent more than on private searches, DNA testing, and court and legal fees in an attempt to access her own adoption records. Due to overly restrictive state laws, she failed.
When an adoption is finalized, the state seals the original birth certificate and issues a new birth certificate listing the names of the adoptive parents. If an adoptee wishes to obtain a copy of their original birth certificate or other sealed records, they must file a petition requesting the information with a court in their birth county. However, a court will only release the records upon a showing of “good cause.” The only exception to the court order requirement is if the adoptee knows the identity of each birth parent. For adoptees like Shawna Hodgson, this cumbersome process often takes years and tens of thousands of dollars.
In recent years, adoptees in Texas and throughout the country have worked to simplify the process for accessing their adoption records with varying degrees of success. A 1995 Tennessee law that grated adopted individuals who are 21 or older unrestricted access to their adoption records and included a “contact veto” provision that allowed biological family members to protect their privacy by registering their desire to not be contacted by the adoptee with the state. This law was challenged in federal court and ultimately upheld by the Sixth Circuit, which ruled that the adoptee’s interest in knowing their history is “an interest entitled to a good deal of respect and sympathy,” and the birth family’s right to privacy, while also important, cannot operate as an absolute bar to this interest. During the 86th and 87th regular sessions of the Texas Legislature, similar legislation was considered that would have allowed adult adoptees to obtain copies of their original birth certificates upon written request to the state registrar. These bills would also have allowed birth parents to file a contact preference form with the registrar indicating their desire to not be contacted by the adoptee. These bills failed to pass.
Opponents of expanding access to adoption records argue that such measures would undermine a birth parent’s right to privacy and could cause women to decide against placing a child for adoption. While such concerns are legitimate and should be considered when crafting policy, they do not trump the equally legitimate interests adoptees have in their personal, social, and medical histories. In addition, research shows that greater openness in adoption is beneficial to the mental and emotional well-being of both the adoptee and birth parent. There is room for the Legislature to balance the interests of adoptees and birth parents in a such a way that provides benefits to both parties, reduces the burden on adoptees, and assures birth parents that their wishes regarding contact will be respected.
The Texas Legislature can strike this balance through a few key reforms. First, it can follow the lead of states like Michigan and North Carolina that have established what is known as a “confidential intermediary” system. Under this process, an adoptee may engage an authorized third party, usually the child placing agency that facilitated the adoption, to inspect adoption records for the purpose of identifying a birth parent and obtaining their consent for release of information and contact. This process acknowledges that the birth parent may have changed their mind regarding contact in the years that have passed since placing the child for adoption. Even where the birth parent may still wish to not have contact with the adoptee, they may still consent to the release of certain information that would otherwise remain sealed. This process can occur without court involvement, thus eliminating a costly and cumbersome barrier. In addition, since intermediaries are bound by a duty to maintain confidentiality until consent is obtained, the privacy rights of all parties involved are safeguarded.
An additional reform would eliminate the requirement that individuals complete post adoption counseling before accessing vital information. Counseling can be deeply personal, and the decision should be the adoptees’ to make, rather than imposed by the state.
Every person, and especially adoptees like Shawna Hodgson, has a desire and a right to know their personal histories. Adoptees have a legitimate interest in accessing their original birth certificate and adoption records. Likewise, birth parents have a legitimate interest in maintaining their privacy and determining whether they wish to have contact with a child they placed for adoption. The Texas Legislature must work to reduce existing barriers to adoptees accessing their adoption records in a manner that respects the privacy rights of birth parents.