Closed casket, closed records?
October 22, 2012 12:26 PM   Subscribe

failover in adoption records opening requests: what happens if a party is deceased?

During the wave of 1970s adoption rule reforms in the US, many states instituted the 'adoption triad' records-opening approach, in which positive permission must be granted by a birth parent to release birth information to the adoptee.

Searching the state in question's various online records resources provides statutory information regarding the adoption records opening process but no detailed rules, which appear to be developed and maintained at the court level. I will not identify the state in question.

Assuming that the state and court in question adheres to any national-level best practices regarding the maintenance of birth record confidentiality in the case of a birth parent having died at the time a records-opening request is placed, would the state

a) release the birth record information at that time

b) defer the decision to an inheriting party of the birth parent such as a sibiling of the birth parent or even a biological sibling of the adoptee

c) deny access unilaterally as the permission-granting party is no longer able to excercise that power

please, no speculation. answer if you know and provide specific examples such as "In Wisconsin, ..." or "The Hypothetical National Author ity on Harmonizing Adoption Records Requests Policy says..."
posted by mwhybark to Law & Government (7 answers total) 1 user marked this as a favorite
I am in Missouri. I have personally assisted the court here with this process. I hope this provides some answer (though I'm not sure it will)...

The adoptee formally contacts the court and asks for names or contact information or even paperwork relating to their birth. In our court system, there is a Family Court Coordinator that works there on a grant (so most states may not have this position; ours happens to be my sister, which is how I got involved) and that person, because their work load is not as heavy as anyone else's in the county AND because there is really no one assigned by law here to check these records, the duty falls to her. She pulls the records and attempts to locate the birth family. Keep in mind, she is given no resources to do this and has no skills in this area. I'm a genealogist so I've assisted her frequently -- otherwise, without the skills that I've got, I doubt she'd find anyone. If she finds a parent she contacts them, asks vague questions concerning whether or not they ever placed a child for adoption. If they answer in the affirmative she is allowed to delve further. Fwiw, she has worked on probably 20 of these requests -- we have probably found 10 birth parents and all have declined to have their information given to their birth children.

In Missouri, from what I understand, the proper legal procedures for the courts to release or research this information is very vague and horribly unclear. Without knowing your state I'm not sure exactly what you need to know or how you expect someone to help too much but there's my experience with it.
posted by youandiandaflame at 1:19 PM on October 22, 2012

I'm really sorry to tell you that there are no national-level best practices or rules governing this. It is very specific to your unidentified state's laws.

I cannot promise the info is up to date, but Bastard Nation, an adoptee rights group, has a list of state adoption laws there. Not sure how active the group still is and therefore how updated the site is.

The Evan B. Donaldson Adoption Institute may have helpful info as well.

Good luck.
posted by ImproviseOrDie at 1:25 PM on October 22, 2012 [1 favorite]

Best answer: We looked into it for Maryland as that's where my darling wife was born and adopted.

The process there for attaining either non-identifying information or identifying information in the state of Maryland is detailed here. While it does not explicitly say what happens if a person is deceased, it does make it pretty clear that affirmative consent - which a corpse cannot give - is required.

Added emphasis by me:
If one or both parties being sought are found, their identities will be confirmed through the agency that was involved in the adoption finalization. Once confirmed, the Confidential Intermediary will contact the parties being sought in a confidential manner to assess their willingness to provide the requested non-identifying or identifying information. An assessment interview is required before contact or reunion occurs.

Even though basic search protocols will be completed and all reasonable leads will be exhausted, neither the Department nor the Confidential Intermediary can guarantee that the individual(s) sought will be:
willing to release information;
willing to agree to a contact or a reunion exchange, or

The individual being sought may grant or deny permission. The Confidential Intermediary may request a Consent Agreement or Disclosure Veto from the individual(s) being sought and will only provide the services that are authorized.
So it seems pretty certain that the door closes for this official channel upon birthparent's death.
posted by phearlez at 1:57 PM on October 22, 2012

I should have mentioned, as it was one of your questions, my interpretation of the "law" of it here in my state was/is the same as phearlez. Without express written or verbal consent from at least one of the birth parents, the court will not release the information. When we've encountered a certainly deceased birth parent, the adoptee is simply told that there is no further information to give, the file is put away, and the case, as it were, is closed.
posted by youandiandaflame at 2:13 PM on October 22, 2012

Every state in the union has there own unique set of laws governing the topic of release of adoption records, it is rare for states to work together or to set standards based on neighboring or other states.

My experience was with battling the (then) draconian laws of the State of Illinois on behalf of one of my parents. We chose the direct Circuit Court route under provisions in the law that allow for release of an original birth certificate in situations where a documented genetic health issue gives rise to the need to know more about the biological parents. My parent had zero desire to "find" their birth parents.

The judge in Circuit Court, after having my parent appear before them in open court and presenting medical documentation, granted the request. We do not know if there was any 'behind the scenes' checks prior to the release of the impounded birth certificate and court order (there was a delay owing to being unable to figure out where exactly the records were being held since more than one county was involved). I am a history and genealogical researcher, I was able to quickly determine from the parents' names on the original birth certificate that they were both dead.

I'm fairly certain that in this specific case, the medical necessity for information trumped any privacy provisions. Thankfully Illinois has a much more enlightened policy (at least my cursory reading of it) and makes it easier to go the non-court route.
posted by kuppajava at 2:27 PM on October 22, 2012

OP, you should also check the Adoptee Rights Coalition. Adoption disclosure laws are in a fluid state in the past 15 years or so; several states have changed their laws, and several states have advocacy groups working to change the laws. So even if your state's stance is one way, you might find through one of the links I've given that there are people working to change that. Or they may have ideas about how to work to get what you want in spite of the law.
posted by ImproviseOrDie at 3:48 AM on October 23, 2012

Mod note: Final update from the OP:
To fill in a blank or two, I had already engaged a Confidential Intermediary as a researcher in my birth state and while she was somewhat helpful the base of possible candidates to research was too large and the non-identifying information too, well, non-identifying. I was weighing whether or not to invoke contact request on the records, which would have incurred the risk of mortality failover as seen above. I had a couple of alternatives in mind before invoking contact, but in the end proceeded with the request early in 2013.

My CI opened the records and rapidly identified my birth mother, educating me in the process why it is customary to begin the contact process with the birth mother, and contacted her via phone at that time.

After a few weeks, we spoke on the phone and provided one another with background information, pictures, and the like. She came to visit us here in fall, and my adoptive parents visited her and her family independently about a month after that. My wife and I are going to visit that same locale and family in a couple of months, and I will at that time meet some of my half-siblings.

I had not carefully considered the emotional implications of seeking contact, as my research and interest was not primarily driven by a search for closure, and therefore have been somewhat unprepared for the situation. But on the whole I would characterize the experience as positive and it has certainly been a catalyst for a great deal of self-reflection. In addition, the revelation of certain familial traits and characteristics has been something of a relief, clarifying aspects of my personality and behavior.

Thanks to all of you for weighing in here.
posted by LobsterMitten (staff) at 8:03 PM on March 25, 2014 [1 favorite]

« Older Help me help a customer find the right product   |   No more bursting bottles! Newer »
This thread is closed to new comments.