Policy & Law: Mutual Consent

Mutual Consent

Background

The National Council For Adoption (NCFA) is not opposed to open adoptions, reunions, or the exchange of identifying information when parties to adoption mutually agree. We are, however, opposed to laws that empower one party to adoption to receive confidential identifying information about the other without the other party's consent. Openness in adoption can be healthy when both parties choose it voluntarily; but it's often traumatic and disrupts lives when one side forces himself or herself on the other.

Attitudes toward openness are incredibly diverse and extremely personal. Laws governing adoption should be based on mutual consent, because a one-size-fits-all mandatory policy simply does not work for everyone.

NCFA feels that mandatory openness constitutes a serious breach of a birthmother's right to privacy. There are many reasons a birthmother chooses a confidential adoption, such as rape or incest, or the birthmother may have never told her husband, family or closest friends. Perhaps she may be considering making contact with her child in the future, but wants to do be able to control the timing.

Furthermore, with all the emphasis on defending privacy these days, it is disturbing that policymakers would violate the privacy that was promised to vulnerable women who made a difficult, yet private and loving decision in the best interests of their child.

The one-size-fits all mandatory openness policy tramples over the personal and real concerns of the women who chose the option of a confidential adoption. Since they cannot publicly voice their concerns due to their desire for confidentiality, NCFA serves as an advocate to represent these women and their right to privacy.

Testimonials

NCFA has received numerous letters from vulnerable birthmothers, adopted persons and adoptive parents with real reasons for needing privacy. As these are actual letters written by real birthmothers, adopted persons, and adoptive parents, names and identifying information has been removed to protect privacy.

Rape Victim, Birthmother: Living With a Broken Heart
"Mr. Atwood, my story is tragic and sad.  Many long years ago, a predator moved into our town.  (I have read that these predators can “smell” you from a mile away)  Please excuse that expression. Simply put, this was a married man, acquanting himself with an 18 year old, naïve, sheltered young Catholic girl, proceeding to rape me, then leaving town, never to return lf be seen again. I cannever forget the beating and shame I received from my parents, who are both now deceased.  I then went to a distant town and under the circumstances, gave up my child for adoption." Read more.

A Birthmother for Mutual Consent Registries
"It has come to my attention that the legislative sessions have started up again and that the open records bills will be hitting the committee floors soon enough. I know that the National Council for Adoption is committed to fighting for the privacy rights of birthparents and I am very grateful." Read more.

A Birthmother's Privacy Violated
"I am a birthmother who suffered the recent devastating retraction of our right to privacy in Oregon through the opening of records by Measure 58. Although it is too late to prevent the violation of birthmothers in our state, I am writing to you in hopes of preventing this from happening to birthmothers in other states which threaten to open records." Read more.

Birthmother and Rape Victim Stripped of Right to Privacy
"I am a birth mother who was a victim of a brutal stranger rape, during which I was badly beaten and barely escaped with my life. My assailant was caught and sent to prison for the crime. Although it was horrible to go through, I was grateful that he wouldn't be able to hurt anyone else." Read more.

Adoptive Parent: "The bomb went off..."
"Three days after our daughter turned 18, without warning of any kind, her birthmother called her. Her mom and I, who were at home at the time with our daughter, were completely taken by surprise..." Read more.

A Petition For An Equitable Solution
"The worry, loss of job, financial burdens as a result of the pregnancy, tears, loneliness and the final release of my flesh and blood were heart wrenching. Never have I heard of a rapist sharing any of the above with the woman he impregnated. The legal system allows criminals to pay for their crimes after which they are free to go. We, too, paid for our crimes and have rebuilt our lives based on the cornerstone of confidentiality. If the courts and legislatures were to break that agreement of privacy it would be a judicial injustice." Read more.

Birthmother Told to "Forget" and Build New Life
" I recall the very instant I made the decision that I would give the child I was carrying up for adoption. I remember this crystal clearly as if it were yesterday-despite the fact that it occurred some thirty odd years ago. I was young, unmarried and after weeks of turmoil and distress, it came suddenly down to something very simple and fundamental-what was best for the child? Discounting my preferences, wishes, desires, did I have all the necessary resources to give this child what he or she needed to have the best possible start in this world? If no, then how about a fair start? The fact of the matter was that the answer to both of these questions was, 'No.'" Read more.

A Desperate Plea for Help
"This morning I saw your debate with Caprice East on the "Today Show" regarding opening adoption records to adoptees. Thank you for being an advocate for birth parents who still want to protect their privacy and anonymity. Obviously, we cannot be advocates for ourselves." Read more.

Life, Interrupted
" I finished school, worked a couple of years, married (husband knew of this event), and eventually we had two daughters together. We have been married now for over 31 happy years." Read more.

Hunted by My Birthmother
" In 1968 I was adopted; in 2000, my birthmother, with the help of Midwest Adoption Agency (not theagency who handled my adoption) hunted me down.  It has not been a good or happy reunion. " Read more.

Adult Adopted Person Testifies Before the Subcommittee on Human Resources of the House Committee on Ways and Means
Click here to read the testimony of Carol Sandusky, an adult adopted person, before the Subcommittee on Human Resources of the House Committee on Ways and Means.

A Birthmother's Perspective: Without the Confidential Option, I Would Never Have Made My Open Adoption Plan
"As a birthmother, I have a growing concern over the efforts made by a vocal minority attempting to influence lawmakers to introduce and pass legislation that would meet their needs while violating rights of others." Read more.

Telling the Truth About Adoption: An Adopted Person's Perspective
"There are many people who do not fully understand adoption, who think that adoption can only undermine or compromise someone's identity, who believe that an adopted person is somehow insecure, incomplete, because of his or her adoption. They advance their view only by searching for and finding their biological parents can adopted people be 'whole.'" Read more.

Tom Atwood Debates Mutual Consent and Mandatory Openness on NPR's Talk of the Nation
On November 17, 2007, Tom Atwood, President and CEO of National Council For Adoption, debated mutual consent and mandatory openness with Adam Pertman, Executive Director of the EvanB. Donaldson Adoption Institute, on NPR’s Talk of the Nation.  Please click here to listen to the debate.

During the debate, several callers offered their stories highlighting the need for mutual consent and the potentially invasive nature of mandatory openness: 

(18:32) Karen from Westbrook, Connecticut:  “My cousin gave up a child when she was young, and a couple years ago out of nowhere this birth daughter came back into the picture and it really caused an enormous amount of upheaval for the family… It created conflict with one of her daughters because the daughter didn’t know, so it caused resentment…” 

(30:48) Suzie from Tuscon:  “I just wanted to say something for the birthmother.  I was thirteen when I gave birth to a girl and my father was the father and I don’t think that I would want her to know that.  I wouldn’t want her to get information from me because that would be very devastating I would think.” 

Attitudes Toward Mutual Consent

Research has shown that a majority of birthmothers, adoptive parents, and adopted persons  favor the release of a birthmother’s identifying information to the adopted person as part of her original birth certificate only when the birthmother has given consent.  The best research to date on this issue is a 1991 study performed by Paul Sachdev, Ph.D. which examined the attitudes of a total of three hundred randomly selected birthmothers, adoptive parents, and adopted persons.  Findings are as follows:

• A majority of birthmothers (66.4 percent) felt that a birthmother’s identifying information should be released to an adult adopted person only with the birthmother’s consent.  Minorities believed that the birthmother’s identifying information should be released to an adult adopted person with or without the birthmother’s consent (22.1 percent) or that the information should not be released to the adult adopted child in any circumstance (11.5 percent).

• A majority of adoptive parents (58.5 percent) felt that a birthmother’s identifying information should be released to an adult adopted person only with the birthmother’s consent.  A significant minority felt (30.3 percent) felt that a birthmother’s information should not be released to the adult adopted person in any circumstance, while a smaller minority (11.2 percent) felt that a birthmother’s identifying information should be released with or without the birthmother’s consent. 

• A majority of adopted persons (56.6 percent) felt that a birthmother’s identifying information should be released to an adult adopted person only with the birthmother’s consent.  Minorities believed that the birthmother’s identifying information should be released to an adult adopted person with or without the birthmother’s consent (24.5 percent) or that the information should not be released to the adult adopted child in any circumstance (18.9 percent).

• In summation, mutual consent is favored to mandatory openness among birthmothers by a ratio of nearly six to one, among adopted parents by a ratio of five to one, and among adopted persons by a ratio of two to one. 

• The author himself states “Adoptees by and large feel that the birthmothers’ right to remain anonymous outweighs their own need to know.”1

1Sachdev, P. (1991). Achieving openness in adoption: Some critical issues in policy formulation. American Journal of Orthopsychiatry, 61(2), 241-249.

Current Activity: State Open Records Pending Legislation

Illinois -- AB 4623 (as amended)
AB 4623 (as amended) amends current law to allow adopted persons born before January 1, 1946 to have full access to their original birth certificates.  Beginning on April 1, 2009 adult adopted persons born on or after January 1, 1946 may apply to the Illinois Adoption Registry and Medical Information Exchange to obtain a non-certified copy of their original birth certificate with stipulations.  AB 4623 passed the Illinois Assembly Adoption Reform Committee on March 13, 2008.  The bill is currently pending consideration by the General Assembly.

Michigan -- HB 4896
HB 4896 proposes changes to current law to allow an adopted individual who is 21 years of age or older to obtain a certified copy of his or her original birth certificate.  Birthparents would have an opportunity to file a contact preference form.  AB 4896 passed the House Committee on Families and Children’s Services on March 5, 2008.  The bill is currently pending consideration by the full House.

New Jersey -- S 611
S 611 amends current law to allow adult adopted persons access to their original birth certificates and other information with limited opportunity for birthparents of persons adopted prior to enactment to formally request non-disclosure.  S 611 passed the Senate on March 3, 2008.  The bill is currently pending in the Assembly Human Services Committee.

New York -- A 2277/S 235
A 2277/S 235 are identical bills that would amend current law to establish the “Bill of Adoptee Rights” which states that adopted persons 18 years or older have a right to receive a certified copy of his or hers original birth certificate and to obtain their medical history.  Birthparents would have the opportunity to file a contact preference form stating how or if they want to be contacted.  A 2277 is currently pending in the Assembly Committee on Codes.  S 235 is pending in Senate Committee on Health.

Ohio -- HB 7
HB 7 is a comprehensive adoption reform bill that includes changes to current law to require open adoptions and provide open access to adoption records retroactively and prospectively.  HB 7 is currently pending in the Ohio House Health Committee. 

Contact Us
Please contact us at mutualconsent@adoptioncouncil.org if you have a story you would like to share. NCFA respects your privacy. If you wish to remain anonymous, please indicate so in the body of your message.