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|
|1999||2039* *released to an adoptee who is at least 18 years old today|
|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.”