The Long and Costly Tail of Compromise

I’m currently working on a review and timeline of Minnesota sealed records, with an emphasis on birth records over the years, from 1905 to the present. The executive summary, which won’t surprise many folks, goes something like this:

Minnesota birth records have been publicly open and available for more than 100 years. Even when Minnesota became the first state in 1917 to prohibit public access to its court records in adoptions, government birth records for adoptees remained open and available. What dogged state officials, however, was how to register and certify birth records for “illegitimate births,” births that had increasingly led to adoption. This confounded officials for decades, from the passage of the 1917 Minnesota Children’s Code until at least 1939, when original birth records for illegitimate births and adoptions were sealed, creating the framework we now have: replacing the original birth certificate with a supplementary birth certificate while substituting one set of parents for another.

Two things over those years are abundantly clear: first, birth records for illegitimate and adoptive children have always been inextricably linked, if not identically handled. Second, the reason for sealing birth records related to one overriding purpose: eliminating the “embarrassment” associated with adoption and illegitimacy. That’s it. When Minnesota finally sealed original birth records for adoptions in 1939—though continuing to make them available by court order—it was solely about eliminating that stigma. It was not about birth parent privacy. Nor anonymity. It was about stigma. Embarrassment. Shame. Of the adoptee. Which, as things change and adoptees actually grow into adults, such a purpose loses all of its umph.

Skip ahead to 1977. That’s when Minnesota adoptee rights jumped the tracks and went off the rails and over a cliff, possibly for good. That’s the year when adoptee advocates compromised on a bill that allowed the state to create—in conjunction with private adoption agencies and their professionals— the country’s first confidential intermediary system. Lest you’ve already forgotten, up until that time the reason for sealing adoption birth records was to protect the adoptee and the adoptive family, not to secure birth parent secrecy. Ignoring that purpose completely—and allowing adoption agencies to create their own ahistorical narrative of sealed records—led to the fundamental shift of rights in the state. That shift dominates today, and it undermines any legal efforts to undo the damage.

And that damage is significant. For the first time in Minnesota history, the state legally reclassified adoptees’ original birth records, defining them as “confidential data on individuals.” What does that mean? It means that the data is yours and you cannot have it. Worse, and also for the first time in Minnesota history, government birth records for adoptees became legally linked to—if not synonymous with—locating a birth parent. It was the great Minnesota adoptee switcheroo, as in “hey, you want your birth records? How ’bout a little bit of reunion first?” The problem is, basic access rights don’t work that way. Ever. And it’s why Minnesota adoptees got what they got. A broken, inequitable, and expensive system that continues to hobble forward today.

The 1977 legislation has now led to the country’s longest running confidential intermediary system, complete with $800 searches, birth parent consent requirements, more than 1,340 disclosure vetoes and counting, and zombie vetoes that last beyond the death of a parent. And the price of that great compromise started high and early.

Early statistics from the system, published in February 1980, indicate that the initial 332 searches for birth parents in the first two years led to 208 parents being found. But 46 of them— a full 23 percent of those located—filed nondisclosure affidavits. Another 23 percent didn’t file anything, which under Minnesota law counts as a veto. So, if you think that birth parent disclosure vetoes are statistically miniscule, think again, at least in Minnesota. Forty-six percent of the parents located in the first two years of Minnesota’s system essentially prohibited disclosure of an adoptee’s original birth record.

Moving forward to now, disclosure vetoes hover around nine percent of all affidavits filed in Minnesota and up to 32 percent of those filed for specific birth and adoption years. Because in Minnesota, as in a number of states, it is the false trigger of reunion that often leads to the filing of more disclosure vetoes. When you front-load the system so that original birth records are linked directly to reunion and contact, the damage from the system not only remains high but it also perpetuates a damning and compromised legacy for all adoptees.