The High Price of Nope

The first in a series of posts on adult adoptee access to original birth certificates in the United States.

I recently completed three weeks of necessary work. The product is an interactive map as well as a review and summary of OBC access laws for all 50 states, plus the law in the District of Columbia, my own birthplace.

And here’s my central conclusion, for which most adoptees will express little surprise:

The security and legal structures surrounding access to original birth certificates are immense, complex, confusing, and humiliating, specifically for adult adoptees who are forced to maneuver through such systems.

I know no other way to describe it. Consider these provisions, all of which exist as specific examples of state laws in place across the country:

• In Nebraska, a 65-year-old adoptee may request her own original birth certificate but she can be prohibited from receiving it— by a birth parent or by her 85-year-old adoptive parent.
• In New York, where court orders are required and judges have near unlimited discretion to question adoptees who seek original birth certificates, adoptees must typically get consent— which may include consent from a spouse.
• In Massachusetts, a person adopted on July 17, 1974, will get his original birth certificate upon request, no questions asked. A neighbor who happened to have been adopted the next day? A court order is required. Connecticut has a similar “donut hole” in its statute, essentially giving unrestricted access to some, nothing to all others, each based on the specific date of adoption.
• Illinois has an 18,170-word monstrosity of a law that is so confusing and convoluted that I have no clue how legislators or regular people understand it. The state also maintains a 31-member (!) advisory board that oversees a critical part of the law’s implementation, with only one adoptee representative on the board—the law’s author. Yet Illinois is held up as a “success” state in enacting its own version of conditional OBC access.
• Michigan has such a confusing and complex system that only lawyers or those invested in such a complicated bureaucratic framework could fully comprehend it. To seek an OBC in Michigan you must 1) apply through an agency or court, which 2) forwards a clearance request form to the state’s “central adoption registry,” which 3) searches the registry and then 3) returns a clearance reply form to the court or agency that 4) is used to inform the adoptee that 5) a birth parent has denied any release of information (and the OBC is therefore unavailable) or that 6) a birth parent agrees to the release of information, upon which 7) the adoptee may obtain a copy of the clearance reply form and may then 7) supply the clearance reply form to the state registrar, which 8) issues a non-certified copy of the original birth certificate to the adoptee. Oh, if you were born between 1945 and 1980, this whole mechanism doesn’t even apply to you. Like other donut hole states, if you fall into that hole you need a court order to get your OBC.
• For an adoptee in Minnesota whose adoption was finalized through Lutheran Social Services, it costs $13 to apply for an OBC, but potentially up to $800 more in search fees for the agency to try to find a birth parent, with no guarantee you’ll get anything in return. Like many states, even if an adoptee seeks only that simple piece of paper—the OBC—Minnesota forces adoptees and birth parents into at least indirect contact, whether they like it or not, and at an often steep price for results that will depend on birth parent consent.

There is good news, like unrestricted access to an OBC in nine states. And some states are close to unrestricted access and have current bills that may get them there (go Massachusetts and Connecticut). But 17 states either retain long-standing restrictions or have recently enacted new ones that I describe as “conditional restricted access.” These “conditional access” provisions can vary from access requirements based on the date of adoption (Indiana) to other significant limitations, like retaining birth parent consent requirements, allowing a birth parent to redact information, mandating the use of search, reunion, or registry systems, or allowing disclosure vetoes that stay alive even after the death of a parent (so-called “zombie vetoes,” which are currently the law in two states and will become the new law in Missouri in 2018).

Twenty-five states retain what has been the typical approach for most states for at least seventy years: requiring a court order. And while states like Florida, New Mexico, and North Carolina spell out specific factors the courts must consider—and those factors essentially doom an adoptee’s chance of getting an OBC—many states have no enumerated factors or use the catch-all phrase “for good cause.” Continued advocacy, and especially the success of DNA matching, may begin to alter the legal equation a court may need to consider in releasing an OBC. It may be best to leave many “court order” states alone for now, at least legislatively. South Dakota, for example, regularly provides access to an OBC through court order—for free. And the District of Columbia may start doing the same if a pending court case proves successful.

The price, however, continues to remain high for adoptees in almost all states, whether emotionally, financially, or simply as a measure of time and work in trying to get an OBC. It should have never been this way, and the next post will examine how adoptees’ seemingly innocent desires for reunion or medical information has hastened much of the legal mess we have today.

Up Next: What You See Is Not What You’ll Get