Adoption Records

A policy of unsealing birth records is not uncontroversial, however. As applied to adoptions that have already occurred pursuant to a sealed records regime, there may be retroactivity problems. Moreover, allowing access could be viewed as promoting “genetic essentialism,” that is, the view that people are merely the sum of their genes. Additionally, some have argued that unsealing records may undermine adoption by discouraging prospective adoptive parents. Finally, although this article focuses on adoption, some of the same reasoning may be applicable to gamete donors; this application of an openness policy deserves further consideration.

1. Retroactivity

The unsealing of adoption records is most controversial with respect to adoptions that took place under a sealed records regime. Opponents of open records have argued that unsealing the records of these adoptions unfairly breaches promises of confidentiality made to biological and adoptive parents at the time the adoptions took place. As the Tennessee Court of Appeals explained, “вЂ?Life-changing decisions were made based on this expectation . . . .”’15158 Although initially appealing, such breach of promise arguments are ultimately unpersuasive. First, the evidence suggests that few birth mothers were offered a choice about confidentiality. Rather, “many birth parents report that they were not promised confidentiality but instead were informed by agencies that their anonymity would be a condition of the adoption.”15159 Nor could adoption agencies lawfully have promised birth parents or adoptive families absolute confidentiality, since adoption records can be opened upon a judicial finding of good cause under virtually all sealed records regimes.16160 Thus, the effect of an open records statute on adoptions completed under a sealed records regime may simply be to shift the locus of decision-making from the judicial system to the adult adoptee.

Some birth parents also argue that opening previously sealed adoption records impermissibly interferes with their vested legal rights.16161 Although the intermediate court accepted this argument in Doe v. Sundquist, the Tennessee Supreme Court did not. That court noted that adoptees have always been able to gain access to information through court, and that the state had been gradually allowing adoptees access to additional information. Thus, “[T]here simply has never been an absolute guarantee or even a reasonable expectation . . . that adoption records were permanently sealed.”16162 Moreover, courts have uniformly rejected such vested rights arguments in other areas of family law relating both to personal rights and to property rights. For example, courts have held that the application of no-fault divorce laws to marriages entered into under a prior fault-based regime did not violate the vested rights of “innocent” spouses who wished to preserve a marriage.16163 Similarly, courts have ruled that equitable distribution statutes, widely adopted in the 1970s to give each divorcing spouse an ownership interest in property previously owned by one spouse alone, could constitutionally be applied to property acquired and marriages entered into before the ownership rules were changed.16164 In both contexts, courts have firmly rejected the assertion that family members have a legally protected interest in having their rights and obligations remain static. These cases indicate that popularly elected legislatures retain the authority to alter the contours of state-created family law structures, and that neither promises nor expectations about the continuing consequences of those structures rises to the level of a vested constitutional right.

2. Genetic Essentialism

Unsealing birth records allows adoptees to find their biological relatives. Such a focus raises the danger of over-emphasizing one’s genetic identity. As Professors Rochelle Dreyfuss and Dorothy Nelkin point out, “вЂ?How to’ books and articles written for adoptees stress the importance of finding one’s natural or birth parents and suggest that knowing one’s genetic heritage is a way to define identity.”16165 These books and articles are part of a trend, which Dreyfuss and Nelkin define as “genetic essentialism,” the concept that a person is the sum of her genes and that behavior can be predicted based on genetic information.16166 Critics have accused open records advocates of endorsing such essentialism and of asserting that blood kinship is superior to adoptive relationships.16167 While we advocate disclosing the identity of biological parents, we do not justify such disclosure based on the genetic information that disclosure will provide.16168 Instead, we believe that having the same genetic heritage creates the opportunity for a connection and knowledge that the State should not foreclose. Further, we do not believe that acquiring this genetic information will allow an adoptee to predict or explain all of her personal characteristics and traits.

Ironically, adoption law increasingly mandates extensive disclosure of non-identifying genetic information, while resting the calls for disclosure of identifying information. This practice of fully disclosing anonymous genetic information, with corresponding secrecy of the identity of the person, seems itself to be an example of genetic essentialism. A primary rationale for requiring disclosure of non- identifying genetic information is to enable prospective adoptive parents to guard against any dangers that might be posed through “faulty” genes. By contrast, the purpose of disclosing the identity of biological relatives is to aid adoptees and parents in their personal and emotional development, though providing genetic information may be a by-product. Knowing the identity of her biological parents may help the adoptee in her identity development, but it is certainly not the only factor in that development.

3. Discouraging Prospective Adoptive Parents

The objections raised by adoptive parents are even less persuasive in view of the fact that open records do not appear to affect the ability of parents to adopt. Indeed, the experiences of both Kansas and Alaska, which have long had open records regimes, indicate that open records may even encourage adoption. Rates of adoption in these two jurisdictions are considerably higher than the national average.16169 Nor does the available evidence suggest that open records regimes compromise the integrity of the adoption process. Indeed, as Professor Joan Hollinger observes, more than 80% of the biological mothers