Not Just a Transaction: The Shift from Closed to Open Adoptions.

By Sydney Moore

“If you’re adopted it’s just a natural thing to want to know where you came from.”[1] Whether or not adoption should be open or closed has been a subject of legal debate since the early 1900s. A closed adoption is “an adoption in which the birth parents and the adoptive parents do not meet, do not exchange identifying information, and do not maintain contact with each other. Court records are usually sealed as well.”[2] Open adoption is one in which “birth parents and adoptive parents have agreed to engage in some level of communication and the exchange of information with one another, including the possibility of identifying information and an agreement for ongoing contact going forward.”[3]In a legal sense, adoption is a transaction, but as a whole, adoption is a complex concept that intertwines social work, psychology, health and genetics, and the law in a myriad of different ways. There are numerous intricate arguments on both sides of the aisle, entrenched with considerations of the privacy of involved parties, fundamental rights, psychological effects, social stigma, technological advances, and family law principles such as the best interests of the child.[4]

Adoption Historically

            American adoptions were closed and therefore confidential beginning after World War II, under “the idea that adoption substituted one family for another so carefully, systematically, and completely that natal kinship was rendered invisible and irrelevant.”[5] In other words, the majority believed that “it was best for a child to live as if he or she was born into the adopted family, with little to no information about his or her birth family.”[6] Following this shared societal belief, many states passed bills that would limit the information available to adoptees, leading to almost every state enacting statutes that sealed adoption records by the 1950s.[7] Along with sealing records, states also issued amended birth certificates, which replaced the biological parents’ names with names of adoptive parents.[8]

However, with the development of landmark decisions such as Griswold v. Connecticut,[9]Roe v. Wade,[10]and Eisenstadt v. Baird,[11]which furthered access to contraceptives and legal abortions and therefore gave pregnant women more options, coupled with advocacy groups such as the Adoption Liberation Movement of America and the American Adoption Congress whose aim was to end closed adoptions, a shift began.[12]The shift occurred in practice before it was ever embodied in law, and even now open adoption often is not fully expressed in adoption codes. A part of that shift occurred with adoption becoming a very unpopular option among the group for whom closed adoption was designed: unmarried mothers. In recent decades, the vast majority (e.g., 98%) of children born to unmarried mothers are kept, rather than being placed for adoption.  With the numbers of voluntary infant adoptions falling to around 20,000 per year, and the demand for adopting such infants far greater, women voluntarily placing for infant adoption became more empowered.  Unmarried parents were able to bargain for open adoption and indeed the capacity to meet and choose the adoptive parent(s) of their child.   Significantly, most first or birth parents, when given a choice, preferred open adoption.  Thus, since the 1970s, adoption in the United States has “gradually become more transparent and less surrounded by secrecy,” with only around 5% of adoptions being closed as of 2018.[13]

A Shift in the Right Direction

           There are a number of important interests to consider when discussing the impacts of open versus closed adoptions. The first of these is the concept of the “fundamental Right to Know,” which relates to the idea that the adoptee deserves to know and understand their identity and their medical history.[14]Both are important rights that directly impact an individual’s physical, mental, and social well-being, which leads into the principle of the best interest of the child, or adoptee, which encapsulates a “focus. . . on the healthy development and happiness of the child in the adoptive family.”[15]Further, and a more prominent issue in recent years, is the advancement of technology, including ancestry and genetic linking programs such as 23andMe, Ancestry.com, etc., which make the guarantee of privacy and confidentiality increasingly unrealistic.[16]  Finally, there are indications that open adoption is usually less traumatic for birth parents than closed adoptions.  These are just a few of the many arguments that have turned the tide to a more open approach to adoption.

Those Opposed

            As with any complex legal issue, there are those opposed to the majority opinion. Several arguments against open adoptions consider the interests of the adoptive parents. For example, adoptive parents may wish to pass off the child as their biological child or may fear losing a sense of connection with the child to the biological parents.[17] Also, there are arguments regarding the best interests of the child for those opposed if the adoptee is coming from an environment with the biological parents that is unsafe or unhealthy.[18] According to social work research, “the biggest risk of open adoption postulated by most adoption professionals is that it will interfere with the process of bonding between adoptive parents and child.” [19]

Conclusion

            A combination of research in social and physical science, personal testimony from parties to adoptions throughout time, as well as legal precedent has moved the popular opinion towards a policy of openness in domestic adoptions. Although there are valid arguments on both sides, the current weight of evidence supports an open approach.

[1] See Jessica Colin-Greene, Identity and Personhood: Advocating for the Abolishment of Closed Adoption Records Laws, 49 Conn. L. Rev. 1271, 1279 (2017), https://digitalcommons.lib.uconn.edu/law_review/369/?utm_source=opencommons.uconn.edu%2Flaw_review%2F369&utm_medium=PDF&utm_campaign=PDFCoverPages.

[2] Common Terms/Definitions, Acad. of Adoption & Assisted Reprod. Att’ys, https://adoptionart.org/adoption/common-terms-defintions/ (last visited Oct. 5, 2024).

[3] Jessica Crosby, Open Adoption, Nat’l Council for Adoption (Mar. 5, 2015), https://adoptioncouncil.org/article/open-adoption/.

[4] See generally Bryn Baffer, Closed Adoption: An Illusory Promise to Birth Parents and the Changing Landscape of Sealed Adoption Records, 28 Cath. U. J. L. & Tech. 147 (2020), https://scholarship.law.edu/cgi/viewcontent.cgi?article=1090&context=jlt.  

[5] Id. at 151.

[6] Id.

[7] Id. at 151-52.

[8] Amending a Birth Certificate After Adoption, Justia, https://www.justia.com/family/adoptions/adoption-procedures/amending-birth-certificate/ (last visited Oct. 5, 2024).  

[9] 381 U.S. 479 (1965).

[10] 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022).

[11] 405 U.S. 438 (1972).

[12] Baffer, supra note 4, at 153.

[13] Id.

[14] Id. at 158; see also Convention on the Rights of the Child, Nov. 20, 1989

1577 U.N.T.S. 3; 28 I.L.M. 1456 (1989), arts. 7-9, 20-21; Christina Baglietto et. al., Preserving “family relations”: an essential feature of the child’s right to identity, Child Identity Prot., 2022.

[15] Baffer, supra note 4, at 159.

[16] Id. at 147-50.

[17] Collin-Greene, supra note 1, at 1280.

[18] Marianne Berry, Risks and Benefits of Open Adoption, 3 The Future of Child. 125, 130-33 (1993), https://www.jstor.org/stable/pdf/1602407.pdf.

[19] Id. at 129.