What do you get when you introduce a bill powered by inequality?
A new compromised bill in Florida (HB357/SB576) will give some but not all adoptees unrestricted access to their original birth certificates. Because the bill proposes an inequitable solution right out of the gate, it will likely lead to further compromise and will undermine access equality for all adoptees, whether in Florida or in other states.
Here’s a quick summary of what the bill proposes to do, followed by a more lengthy look at its language and context. Bear with me as I discuss some of the provisions. The bill is riddled with significant drafting errors and ambiguities, and I assume certain things in order to make full sense of them. Given this is current pending legislation, assumptions are not typically a solid bet.
My Thirty-Second Summary
Florida’s HB357 creates an inequitable system of OBC access that requires a forty year period to pass after adoption before most adoptees can obtain their original birth certificates upon request.
At its core, the bill creates two inequitable classes: a lucky first class and an unlucky second class. The first class is made up of adoptees whose adoptions are finalized after June 30, 2018. These adoptees, some of whom are not even born, will get their OBCs upon request when they turn 18. If you do the math, access for these lucky kids begins, at the latest, in 2036.
The unlucky second class is basically everybody else. This coach class of adoptees will get their OBCs—presuming errors already in the bill are interpreted in their favor—if ONE of the following applies:
- you were adopted prior to June 30, 1977, or the adoption was finalized at least 40 years ago;
- the adoptee knows the name of a birth parent;
- both the birth parent and the adoptee consent to the release of the OBC;
- a birth parent is deceased;
- a birth parent “can reasonably be presumed to be deceased based on the known or estimated date of birth of the birth parent”; or
- the adoptee or birthparent gets a court order.
Doing a bit more math, access for those in the unlucky second class either get it as early as February 1, 2019, or as late as 2058, presuming they can’t meet any of the other compromised bill requirements I’ve listed above.
Analysis and Commentary
The core of the bill is its forty-year waiting period for access. This waiting period specifically applies to all adoptees whose adoptions are finalized after June 30, 1977 but before July 1, 2018. Pre-1977 adoptees are treated somewhat differently though somewhat the same, as they have obviously been adopted for more than forty years. The bill appears to recognize the OBC access rights that pre-1977 adoptees held for decades, reflecting research the bill drafters took from my recent Florida OBC access report, available here.
Nevertheless, access for the pre-1977 adoptees comes with inexplicable confusion: the bill does not actually provide a clear mechanism for access. It merely states the following:
For adoptions finalized on or before June 30, 1977, nothing in this section or s. 63.162 shall abrogate, limit, or change the holding in or affect any rights affirmed or created under State Department of Health and Rehabilitative Services, Health Program Office v. Mullarkey, 340 So.2d 123 (Fla. 1st D.C.A., 1976).
Accordingly, pre-1977 adoptees—who under Florida law have retained access to their OBCs for at least the last seven decades—are left with a big bag of nothing. They can certainly request their OBCs upon enactment of the bill (or sue for it right now if they are denied the OBC) but there’s no way to know where or how to do that, particularly when there is no provision for direct and unequivocal access. Ultimately, under such an empty provision, they’ll likely be shown the same forty-year queue that nearly all others slog through, though that 40-year-queue specifically does not apply to them. Confused? I would be too, and it will likely take a legal challenge to hash it out. If you are a pre-1977 adoptee, I wouldn’t wager that you’ll get anything out of this bill other than confusion.
Wait, I know. I hear you. You are wondering why this is so complicated and what happened to Florida’s clean bill from last session, the one that provided unrestricted access upon request at age 18? It’s a good question, particularly when we are a year wiser and have a comprehensive report containing historical analysis and significant legal leverage in favor of most Florida adult adoptees. Instead of capitalizing on this and pursuing unrestricted access for all adoptees, however, the sponsors and their supporters—whomever they may be—have punted while it’s still second down. Or, to use a non-sports explanation, the world didn’t fall apart during the 70+ years of unrestricted access in Florida. Why are we going backwards now and compromising on equality for everyone else? Ask the bill sponsors and supporters and they’ll typically reply “at least it’s something.” Wow.
The Really Unlucky Class
The bill ultimately pits pre-1977 adoptees against adoptees who are in an even more unlucky subclass: those adopted between 1977 and 2018. For these “donut hole” adoptees, the waiting starts right away and keeps on going, all the way to 2058. While there are likely far fewer adoptees in this subclass then among pre-1977 adoptees, that’s likely because it is a calculated and cynical political gambit that will divide adoptees for the benefit of some but not all. After all, many but certainly not most of these donut hole adoptees are minor children today or in open adoption arrangements and either don’t currently care a hoot about OBC legislation or, more likely, do not have significant political clout or awareness—at least not right now. Throw them up against pre-1977 adoptees who stand to benefit the most from the bill and guess who gets sacrificed? The youngsters. In fact, I’m already seeing older adoptees on social media state that they like the bill because it gets them something, even though it gets others next to nothing. Again, it’s a classic divide and conquer strategy, except that the folks doing the political dividing hold themselves out as adoptee rights advocates.
Other Drafting Issues
I’ve already discussed the ambiguous and empty provision related to pre-1977 adoptees. But there are other problems with the bill. One, it’s unclear whether an adoptee in the donut hole group (those adopted between 1977 and 2018) must meet all contingencies to get their OBCs or whether they must meet just one. Basically, the drafters forgot to include either an “or” or an “and” at the end of the list of requirements. With an “or” it would be clear: you must meet one requirement. With an “and” you must meet all. Having forgotten or overlooked such a crucial term, it creates an unnecessary drafting and political dilemma, one that can only be corrected through amendment. That in itself will probably bring in other amendments. And there we go, through an already open door in the bill to include even worse amendments and provisions.
Another incredibly vague provision is one that allows an adoptee to obtain an OBC if a birth parent “can reasonably be presumed to be deceased based on the known or estimated date of birth of the birth parent.” How do we do that? Evidence of bad living in the region? Actuarial tables? Because this provision is so ambiguous, it is a recipe for either 1) litigation; or 2) unnecessary bureaucratic regulation. Whatever the outcome, it’s something that could have easily been avoided, most easily by a clean bill that did not require mental gymnastics and guesstimates on a birthparent’s birthday and presumed death.
The Florida bill also allows some adoptees to obtain an OBC if they provide “written evidence of knowledge of the name of a birth parent named on the original birth certificate.” As with provisions like this in a few other states, this again only creates problems and additional bureaucracy. Presumably, if the name on the birth certificate is not one of the actual parents you find elsewhere or through DNA, you are out of luck—unless you happen to know the false or incorrect name listed on the birth certificate, something that is not uncommon in adoptions. Ultimately it is yet another one of the many familiar bones thrown at adoptees who seek equality. Worse, this provision as well as the other contingencies in the bill (e.g., birth parent consent, dead birthparents, etc.) ultimately accomplish a single thing: reinforcing a false assumption that birthparents are given anonymity with respect to an adoptee’s original birth certificate. One convenient reminder of this false assumption is Florida law itself, which provides that:
Upon receipt of the report or certified copy of an adoption decree, together with the information necessary to identify the original certificate of live birth, and establish a new certificate, the department shall prepare and file a new birth certificate, absent objection by the court decreeing the adoption, the adoptive parents, or the adoptee if of legal age.
The contingencies, as well as the requirement of a forty-year waiting period, are the most damaging aspects of this bill, for they undermine adoptee advocates who for decades have fought for equality and against the assumed but false notion that birthparents have confidentiality in and veto rights over the contents of an adoptee’s own birth record. How any legitimate adoptee rights advocate can pursue legislation like this in 2017 is beyond me. I hope it is beyond you as well, and that you are willing to work to defeat the bill in its current form and pursue better legislation.
Bonus Content: Who Gets Access and When?
Under the bill’s forty-year waiting period, access for many adoptees becomes a tiered year-by-year climb. Presuming folks in the unlucky class are not able to meet criteria that generally exist in other restricted or compromised states (e.g., consent-based access, knowledge of birthparent names, deceased birthparent, court order, etc.), adoptees must wait until forty years have passed after the adoption before obtaining an OBC. Note that this is after the adoption, not after birth. For those in the unlucky class who were adopted years after birth, which is not uncommon, the waiting period may extend well beyond a fortieth birthday. Here’s how it breaks down, and I’ve highlighted the gallingly inequitable years that the bill creates, particularly in 2018 when the two classes begin to separate more noticeably.
| Date/Year Adopted | Date/Year OBC Available |
| Before July 1, 1977 | Bill is ambiguous, but it’s likely pre-1977 adoptees won’t get access until the issue is litigated. |
| 1978 | February 1, 2019 |
| 1979 | Earliest is February 1, 2019, based on date of adoption |
| 1980 | 2020 |
| 1981 | 2021 |
| 1982 | 2022 |
| 1983 | 2023 |
| 1984 | 2024 |
| 1985 | 2025 |
| 1986 | 2026 |
| 1987 | 2027 |
| 1988 | 2028 |
| 1989 | 2029 |
| 1990 | 2030 |
| 1991 | 2031 |
| 1992 | 2032 |
| 1993 | 2033 |
| 1994 | 2034 |
| 1995 | 2035 |
| 1996 | 2036 |
| 1997 | 2037 |
| 1998 | 2038 |
| 1999 | 2039* *released to an adoptee who is at least 18 years old today |
| 2000 | 2040 |
| 2001 | 2041 |
| 2002 | 2042 |
| 2003 | 2043 |
| 2004 | 2044 |
| 2005 | 2045 |
| 2006 | 2046 |
| 2007 | 2047 |
| 2008 | 2048 |
| 2009 | 2049 |
| 2010 | 2050 |
| 2011 | 2051 |
| 2012 | 2052 |
| 2013 | 2053 |
| 2014 | 2054 |
| 2015 | 2055 |
| 2016 | 2056 |
| 2017 | 2057 |
| June 30, 2018 | June 30, 2058 |
| July 1, 2018 | July 1, 2036† at age 18 |
| 2019 | 2037† at age 18 |
| 2020 | 2038† at age 18 |
| 2021 | 2039† at age 18 |
†likely earlier based on an adoptee’s date of birth, which is typically 3 months to several years before finalization of the adoption. Under the bill, adoptees whose adoptions are finalized after June 30, 2018, need only be 18 years of age to request their original birth certificates. All other adoptees must meet different requirements that are specifically related to the date of adoption, not birth.
Note: In an earlier draft of this post I stated that the 40-year waiting period also applied to pre-1977 adoptees. This is not correct. While I view all of the unlucky class of pre-2018 adoptees as in the same common class—with access to the OBC if the adoption was at least forty years ago—the bill very specifically excludes pre-1977 adoptees from such a 40-year waiting period. The bill actually keeps pre-1977 adoptees in somewhat of a legal limbo. It recognizes their existing legal right to unrestricted access to the OBC but gives them no practical mechanism to obtain it. As Shea Grimm said to me when she pointed this out, they have been “status quoed.”
Thanks, Greg.
Thank you for your comments Greg. Readers are welcome to view an alternate perspective on the Florida Adoption Reform and Education (FLARE) Facebook page. It appears that you favor the existing law — which already allows both birth and adoptive parents to “veto” release of the OBC to an adoptee — over this bill. Like others in the “all or nothing NOW” camp, your desire to leave no one behind actually leaves everyone behind.
I appreciate the comment and obviously disagree with you on the bill and its approach. You refer to FLARE, but that’s a closed group on Facebook, so it’s impossible for many of us who are not allowed into the group to view or discuss your “alternate perspective.” Why not be more open about what you are trying to do and who is specifically behind it?
The focus of FLARE is getting the bill passed– not debating its merits. As you know we have pointed people to your website. Opponents of the bill threaten to (and do) block and ban those with differing viewpoints, or have secret FB pages that not only regulate membership but prevent outsiders from viewing comments. By comparison, dissenters have been allowed to voice their opinions on FLARE, within certain limits. Florida law currently treats everyone equally by giving adult adoptees nothing without the consent of someone else (recently uncovered case law notwithstanding – nice work!). What if a little inequality today might help leverage a different, more desirable equality tomorrow? It has been known to happen. Reasonable minds can disagree, and there is more than one path to the top of the mountain. One thing is certain: for whatever reasons, the current “all or nothing now” approach is not getting the job done.
Honestly, your first sentence sums it up perfectly. Pass something, merits notwithstanding. Adoptees deserve transparency as to who is behind the effort. I’ve always made this an issue and have gotten grief about it from many corners when I make a stink about it, whether it was Donaldson or Bastard Nation in the past. This applies more potently to a group that is pursuing a cause directly but does not disclose its leadership or its leadership’s specific interest in a bill.
Rich: “What if a little inequality today might help leverage a different, more desirable equality tomorrow? It has been known to happen.”
Really now. Equal=Equal in my book. This is horrendous speak defending an equal rights nightmare.
Thank you, Greg.
I do take issue with your allegation that the 40 year time frame is the core of the bill. The core of the bill is eventual access to original birth certificates for all adult adoptees. Some would gain immediate access; future adoptees have to wait a maximum of 18 years; and those who aren’t in open adoptions (which comprise a significant percentage of the 1977-2018 adoptions) , don’t learn or already know their mother’s name, would have to wait a maximum of 40 years. Keeping the law the same means everyone waits until they get a court order or die.
It is unmistakably the core aspect. It is the only factor that is common to every adoptee except the “lucky” post-2017 adoptees. All the other factors you cite are run-of-the-mill contingencies that you find in most dirty OBC access bills out there.
On a related strategic and philosophical note, I would like to ask your opinion about something as an attorney: The foundation of the “all or nothing ” approach seems to be the assertion that access to OBCs is a fundamental right. But, given that federal and state courts have rejected that argument, isn’t this strategy rooted in a legal fiction? If not, why is no one pressing the argument through the courts? Wouldn’t that be the more direct avenue to a “clean” solution? How would you overturn the previous court rulings to win adoptees this alleged right?
This issue is one that can’t be covered here. It’s too large and complicated to do within the context of a blog comment, plus it’s something that is developing and I hesitate to lay out a legal strategy and tip off folks or get folks excited and running haphazardly in the wrong direction. That said, it is something that has to bubble up from states, and it takes development of local attorneys who understand the issue or can work with attorneys who do. Are there solid legal theories of equality of access based on rights? Yes. But a fundamental right as is defined today? That’s a legal term of art and there are few fundamental rights recognized by the courts. All I can say is that this issue is my main focus and it is under development.
The notion that one needs judicial recognition of a right in order to believe in it, hold it dear, and fight for it, is not only ahistorical but intellectually bankrupt. There are countless examples of discrimination where the oppressed, be they women, people of color, or LGBTQ, fought for decades or centuries for legal recognition of their rights, often winning local victories along the way, before judicial recognition of their rights occurred.
Moreover, the case law on this issue is extremely limited and old.
It’s not been an uncommon strategy in other social justice movements to take a multipronged approach to eventual judicial recognition of rights, where advocates started with local and state governments. As a wave is produced, the judiciary often comes along. This is precisely why veto or tier bills or similar are such a problem and equality activists oppose them – they implicitly and sometimes explicitly reinforce the notion that it is birthparents’ right to anonymity that controls. And that is ironic in light of your argument that a right without judicial acknowledgement is no right at all, because courts like Oregon and Tennessee explicitly rejected the right of a birthparents to anonymity,
Honestly, I wish I had been articulate enough to say what Shea has said here. It captures exactly what I’m after and pursuing. And I fully understand failures but I also understand small victories come first and that those small and perhaps even unexpected victories may ultimately become the wave Shea mentions. For that, it is alway worth trying.
I will say, though, that it is doubtful this work, our legal work, will be successful anytime soon in compromised states. For those states, where vetoes and disclosures and an often complex legislative framework has now been fixed, there is probably little to do for many years. For those states, rights have been compromised and deformed and are unlikely to change. I wish more people understood this at such a fundamental level, and I appreciate Shea for articulating that notion so clearly.
Richard: Your views are very distressing to read as an adoptee whose dealt with laws that discriminate terribly against adoptees by year of birth (in Michigan). First, I would encourage you to revisit/visit Article 7 of the Universal Declaration of Human Rights. Enshrined in that declaration, it states: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.”
A multitude of countries from Australia to New Zealand to the United Kingdom allow adoptees when they become adults to access their identity documents without differential treatment prescribed in discriminatory laws that we see in a majority of states. (Go here to the UK’s page to see how simple it is to enshrine an adoptee’s rights into national law: https://www.gov.uk/adoption-records). The USA is the outlier, and a bad one, in this area of law.
Your arguments remind me of comments from the Michigan Department of Health and Human Services, whose “officials” denied me my birth certificate for nearly three decades, even after I submitted a signed consent by my birth mother allowing the state to finally give me what I was always entitled as a human right. The “law” wasn’t on my side, even then, they claimed.
But my “rights” to my birth certificate and my past, as were the rights of all who were born in Michigan, were not something MI state law or the MDHHS, or the courts for that matter, had any authority to give or take away. In my case, I never acknowledged their non-authority. I asserted my rights, and I never “compromised” on that, ever.
Bottom line, this isn’t about ” all or nothing.” I hope you get that, and perhaps also see how badly misaligned our state laws are compared to national laws of countries that acknowledge the full legal and human rights of all adopted people.
So, attorneys, find a state where you can win or successfully appeal a case. All the theorizing in the world is meaningless unless we are making progress on the multiple fronts referred to. And waiting for the perfect moment in which the perfect bill will pass on the first attempt is a painfully slow strategy which has proven not to work with any kind of consistency. On the legislative front, at minimum, every state can and should start by passing clean prospective bills to help the next generation. It is inhumane and unethical to hold them hostage in the name of “equality,” particularly since the majority of modern adoptions are open to one degree or another.
You and Rep. Stark are obviously impatient. I’m not, and I’m also not just sitting around twiddling my thumbs. If it takes three years to get a case and develop it and pursue it, with the result that it supports a framework that opens records, then it is worth the effort and time. Same goes with legislation. Pushing through legislation in order to get “something”—especially sloppily drafted legislation like this that will undoubtedly get worse—is a panicked and unnecessary response to the notion that we’ll never have access. I guess, in many ways, it’s also a pessimistic outlook.
I am not actually opposed to the concept of passing prospective only clean bills in states that have already passed veto or redaction legislation, as long as it is done concurrently with a strategy to, even if over the long term, legally challenge laws that have given birthparents veto and redaction rights. But that is not the strategy you’re actually attempting to implement, Rich. You’re promoting far worse bills, including bills that CREATE vested rights for birthparents, as well as bills that leave at least some adoptees worse off than if you would just do nothing. And worse, you are outright misrepresenting what the Florida bill in particular will actually do.
Furthermore, your absurd argument that fighting for adoptee rights instead of the eyrollingly meaningless “balance of interests” is a better legislative strategy is just laughable.
What about us “robots” in Ca. I’ve waited fifty+ years, does this have any effect on receiving a OBC, or do all us adoptee’s have to keep wandering around like we know who we are?
Well, what Florida does will not directly affect California, but what other states do will affect the overall fight for unrestricted access to an OBC. For example, it now seems fairly clear that the horrendous bill in New York is very much related to how this bill in Florida is being pursued. Imagine that. Inequality begets more inequality.
What about those of us who were born and adopted before 1977? I was born in 1965 and adopted the same year. What am I allowed to have?