Chapter 7: Legalized Discrimination Against Adoptees: The Demon Behind the Problem

Rudy Owens’ memoir on the American adoption experience

© 2017 Rudy Owens.  All rights reserved.

For more than six decades, millions of adopted Americans have faced legalized discrimination. No one set out to do intentional harm to adoptees. Yet the institution of adoption that grew after World War 2 singled out adoptees for differential treatment. Persons surrendered at birth inherited this system as a birthright with no meaningful role in the national dialogue deciding their fate.

Today, the policies, laws, and a culture that have grown over the last 60 years collectively deny adoptees equal status under the law. For adoptees this outcome is particularly ironic. The movement to make adoption records more secretive from adoptees, depriving them of basic rights, came when social movements at all levels of society were demanding change and succeeding in expanding legal rights for all Americans from the 1950s onward.

In the United States, adoptee rights groups have unsuccessfully challenged laws that discriminate against classes of people as unconstitutional under the Fourteenth Amendment of the U.S. Constitution. The amendment, interpreted by the courts to end discrimination against African Americans and other minorities by states in civil rights court challenges up through the 1960s, states, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Arguments for a constitutional right to equal treatment under that law for adoptees have been kicking around for half a century. The debate began when the national Adoption Rights Movement (ARM) gained steam after the 1960s. Adoptees began demanding for equal rights once states started restricting access to their birth records, when less than 20 years earlier they could review those documents. By the 1970s, hundreds of groups had started in North America and the United Kingdom to help adoptees connect with birth mothers. While the United Kingdom opened it adoption records to adoptees with a national law called the Children’s Act in 1975, the door closed further in the United States. During this time, numerous adoptees filed lawsuits to open records.

The most influential U.S. group that captured the public imagination and inflamed defenders of closed records was the Adoptees’ Liberty Movement Association (ALMA), led by adoptee and author Florence Fisher. She took a clear stand for “free access to our original birth certificates and the records of our adoption.” Such clarity alarmed many, and ALMA took the state of New York to court in 1977 with a federal class action lawsuit.

The ALMA suit hoped to pry open the Empire State’s adoption records laws to adult adoptees. ALMA claimed adoptees had a constitutional right under the First, 13th, and 14th amendments to their personal information contained in sealed adoption records. In a highly creative argument, the ALMA demanded records access under the 13th Amendment, which prohibits slavery, claiming adult adoptees being prevented from finding their birth parents was the equivalent of antebellum slave children being sold before they were old enough to know their parents. But the courts, including the 2nd U.S. Circuit Court of Appeals, ruled adoptees had no such “fundamental” right to learn the identities of their birth parents in any of the cited amendments. In stark contrast to the actual history of U.S. adoption practices, the court found that sealed records had no relation to illegitimacy, and as such adoptees had no social stigma associated with illegitimacy that would provide them greater scrutiny of those records. Since that defeat, the ALMA retreated from its former advocacy focus and dedicated itself connecting adoptees and birth parents through a participant-funded registry system.

In a much broader human rights framework beyond the U.S. Constitution, singling out adoptees for different treatment by state laws—as practiced throughout the United States—should also be seen as a denial of basic human rights. One of humanity’s most basic rights bestowed on all persons at birth allows everyone to know who they are, to know their kin, and to know where them came from. These are eternal human questions. They exist outside the boundaries of race, income, religion, or nationality. Article 7 of the Universal Declaration of Human Rights, by the United Nations, states, “All are equal before the law and are entitled without any discrimination to equal protection of the law.” As of 2017, all but nine states are partially or outright violating this principle of international law, not to mention the 14th Amendment, through laws singling out classes of citizens for unequal legal treatment regarding their legal identity documents.

Return to Chapter 6: Blood Is Thicker Than Water

Read More: Chapter 8: Who Am I?